The State Of Madhya Pradesh vs Rameshchandra
2021 Latest Caselaw 8763 MP

                                        HIGH COURT OF MADHYA PRADESH
                                   1                                                           CRR No.2046/2020

                                                           CRR No.2046/2020
                                               (State of M.P. Vs. Rameshchandra and others)
                                   Indore, Dated : 14.12.2021
                                         Ms. Sofia Khan, learned counsel for the petitioner/State.

                                         Heard on admission.

                                         The present revision petition under Section 397 of the
                                   Code of Criminal Procedure, 1973 (in short "Cr.P.C.") has been
                                   preferred by the State against the impugned judgment dated
                                   29.6.2020 passed in Criminal Appeal No.184/2017 by the 4th
                                   Addl. Sessions Judge, Shujalpur, District Shajapur, whereby
                                   the respondents/accused have been acquitted from the offence

under Section 325/34 of the Indian Penal Code (in short "IPC").

In brief, the prosecution story was that on 30.11.2011 at about 11 a.m. while some labours of respondent No.3/accused Mukesh were going across the agricultural field of the complainant, at that time mother of the complainant objected to it, then accused Mukesh started abusing her in filthy language. Thereafter co-accused Rajesh, Rameshchandra, Kailash and Krapal Singh also came there and they caused various injuries to the complainant Prabhulal, his mother Bhagwati Bai and brother Jeetmal by using wooden stick. Thereafter Prabhulal lodged an FIR at P.S. Akodia. Victim Prabhulal, Bhagwati Bai and Jeetmal were brought at Civil Hospital, Shujalpur for MLC purpose. Prabhulal sustained bony injury in the ring finger of his right hand.

After framing the charges and after recording the evidence, the trial Court has convicted the accused persons/respondents under Section 325/34, 323/34 (two counts) of IPC and sentenced them to 2-2 years R.I. with fine of Rs.300-300 and 6-6 months R.I. with fine of Rs.200-200, respectively.

Signature Not Verified SAN

Digitally signed by TRILOK SINGH SAVNER Date: 2021.12.15 12:24:29 PST HIGH COURT OF MADHYA PRADESH

An appeal was preferred against the judgment of the trial Court. The appellate court partly allowed the appeal and upheld the conviction under Section 323/34 (3 counts) of IPC and sentenced all the accused persons till rising of the Court with fine of Rs.1,000-1,000/- each, whereas the appellate court has acquitted all the accused persons/respondents Rameshchandra, Rajesh, Mukesh, Kailash and Krapal Singh from the offence under Section 325/34 of IPC. Hence this revision petition.

Learned counsel for the petitioner submits that the first appellate court has disbelieved the evidence given by Dr. K.K. Jain (PW-11) on the ground that x-ray report (Ex.P/19) was not prepared by him and Dr. Rakesh Gautam, who had prepared the said x-ray report, was not examined before the Court. She further submits that Dr. Rakesh Gautam has left his service about 6 years ago and his whereabouts are not known to the prosecution, therefore, he could not be examined before the trial Court. She submits that as per the law laid down by the Hon'ble High Court of M.P. in the case of Subhash Vs. State of M.P. reported in ILR 2009 MP 3236 in absence of the doctor, the report is admissible under Section 32(2) of the Evidence Act. Therefore, judgment and order passed by the first appellate court be set aside and the accused persons/ respondents Rameshchandra, Rajesh, Mukesh, Kailash and Krapal Singh be punished for offence under Section 325/34 of IPC.

Record of the case is perused. It is evident that judgment of the court below is based upon the proper appreciation of evidence. X-ray report of victim Prabhulal was prepared by Dr. Rakesh Gautam and he has not been examined before the trial Court. It was the duty of the prosecution to examine him before the trial Court but prosecution did not produce any relevant Signature Not Verified SAN document before the trial Court that whereabouts of Dr. Rakesh

Digitally signed by TRILOK SINGH SAVNER Date: 2021.12.15 12:24:29 PST HIGH COURT OF MADHYA PRADESH

Gautam are not known to the prosecution. Dr. Rakesh Gautam was a government doctor and he may have been getting the pension and other service benefits from the government, therefore, his whereabouts can be easily traceable. Therefore, the reasons assigned by the prosecution for not examining this material witness does not seem to be bonafide. This Court is well aware about the limitations of this Court while exercising the revisional jurisdiction, which does not empower to re- appreciation of the evidence.

On the basis of the aforesaid discussion, this Court is of the considered view that the first appellate court has rightly appreciated the evidence adduced by both the parties, therefore, there is no reason to interfere in the findings of the first appellate court.

Hence, so far as the acquittal of accused persons/ respondents Rameshchandra, Rajesh, Mukesh, Kailash and Krapal Singh under Section 325/34 of IPC is concerned, the judgment passed by the learned first appellate court is maintained.

Accordingly this revision petition is dismissed.

C.C. as per rules.

(Anil Verma) Judge trilok/-

Signature Not Verified SAN

Digitally signed by TRILOK SINGH SAVNER Date: 2021.12.15 12:24:29 PST