Raju vs The State Of Madhya Pradesh
2021 Latest Caselaw 6501 MP

                               {1}              Cri.A. No.361/2006


           HIGH COURT OF MADHYA PRADESH : JABALPUR


Present :- Hon'ble Shri Justice Satyendra Kumar Singh


               CRIMINAL APPEAL No. 361/2006


                        Raju s/o. Gendlal Arya
                                Versus
                    The State of Madhya Pradesh
Counsel for the Appellant   : Shri Pramod Kumar Thakre, Advocate
Counsel for the Respondent : Shri Ramji Pandey, Advocate
___________________________________________________________


                            JUDGMENT

{08.10.2021}

This appeal under Section 374 (ii) of the Criminal Procedure

Code (2 of 1974) has been preferred on behalf of the appellant against

the judgment dated 16.02.2006 passed by the Court of Special Judge,

Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act (33

of 1989) (in short referred to as "SC/ST Act") in Special Case

No.59/2005, whereby the appellant has been acquitted from the

charges punishable under Section 294, 506 Part-II of the Indian Penal

Code and also under Section 3(1)(10) of Scheduled Castes and

Scheduled Tribe (Prevention of Atrocities) Act, but convicted under

Section 325 of the IPC and sentenced to undergo rigorous imprisonment

for a period of 3 years with fine of Rs.3,000/-, in default of payment of

fine, additional imprisonment of 6 months.

{2} Cri.A. No.361/2006

2. Prosecution story, in brief, is that appellant's house is

situated in front of complainant's house across the road in village

Rambha, Police Station Jhallor, District-Betul. On 28.08.2004 at about

18.00 hour, complainant Bholu (PW-4) was scolding children and his

grand son in front of his house, then appellant came there and

assaulted on his left hand by lathi (stick) and caused grievous injuries to

him. On 29.08.2004 at 11.30 am, the complainant lodged the FIR

against the appellant, from where he was sent for medical examination

to Primary Health Centre Jhallor. On the same day at about 13.00 hour,

Dr. Nikita Verma (PW-6) examined him and gave her report Ex. P/4

wherein she found fracture in left humerus bone along with other

lacerated wound in his left hand. Dr. O.P. Yadav (PW-2) examined

complainant's X-ray plate and gave his report Ex. P/3 mentioning

fracture in left humerus bone. After investigation charge-sheet was filed

before the Court of Special Judge SC/ST Act, Betul.

3. After investigation charge-sheet was filed against the

appellant for offences punishable under Section 294, 325, 506 Part-II of

Indian Penal Code and also under Section 3(1)(10) of SC/ST Act.

4. The appellant abjured his guilt and pleaded for trial. No

defence evidence has been adduced by him in this regard.

5. After appreciating the evidence produced on record by the

prosecution, the Court of learned Special Judge SC/ST Act acquitted the

appellant from the charges punishable under Section 294, 506 Part-II of {3} Cri.A. No.361/2006

the IPC and also under Section 3(1)(10) of SC/ST Act, however,

convicted under Section 325 of the IPC and sentenced him to undergo

rigorous imprisonment for a period of 3 years with fine of Rs.3,000/-, in

default of payment of fine, additional imprisonment of 6 months.

6. Learned counsel for the appellant submits that complainant

Bholu (PW-4) has made self-contradictory statement. Complainant's wife

Mesobai (PW-5) has not supported the prosecution story and narrated

the true fact that the injuries found on the body of the complainant

were caused due to his fall down. Complainant (PW-4) himself admitted

that he had taken liquor at the time of incident and during incident he

was fallen down. No independent witnesses has supported the

prosecution, therefore, no offence under section 325 of IPC is made out

against the appellant, hence, the impugned judgment be set aside and

appellant be acquitted from the charge under section 325 of IPC. The

trial Court has directed a harsh sentence against the appellant, who

remained in the custody period from 30.08.2004 to 02.09.2004 (4 days),

which is more than sufficient for the offence, if he has committed.

Therefore, in alternate, it is prayed that the sentence may be reduced to

the period which he has already undergone in the custody.

7. In rebuttal, learned counsel for the State has supported the

decision of the trial Court. He has submitted that the conviction as well

as the sentence directed by the trial Court appears to be correct and

there is no basis by which any interference is warranted in the appeal.

{4} Cri.A. No.361/2006

8. Perused the impugned judgment along with the record of

the trial Court. Complainant -Bholu (PW-4) has stated that at the time of

incident when he was scolding children in front of his house, appellant

came there and assaulted him by iron rod thereby he sustained grievous

injuries in his left hand. Dr. Nikita Verma (PW-6) has stated that she

examined the complainant Bholu on 29.08.2004 i.e. on the next day of

the incident and found fracture in left humerus bone along with a deep

lacerated wound measuring 0.5 cm x 0.5 cm deep upto bone in his left

hand (Ex. P/4). Dr. O.P. Yadav (PW-2) has stated that on 01.09.2004 he

examined the X-ray plate of the complainant and found fracture in his

left humerus bone (Ex.P/3).

9. Appellant has nowhere rebutted the fact that injuries found

on the body of the complainant was caused during the incident. During

cross-examination of the complainant Bholu (PW-4), suggestion made

on behalf of the appellant that at the time of incident complainant was

in drunken state and when appellant followed him, he tried to ran away

from the spot and fell down on the road near the tap and got the

injuries mentioned in Ex.P/4 and Ex.P/3 has been admitted by him.

Therefore, it is not disputed that on the date of incident when

complainant was scolding the children, appellant came on the spot and

objected him thereafter a quarrel took place between them and during

altercation, complainant got injured and sustained injuries as mentioned

in Ex.P/4 and Ex.P/3.

{5} Cri.A. No.361/2006

10. Complainant Bholu (PW-4) has admitted in his cross-

examination that at the time of incident he had consumed liquor, he had

also admitted that during the incident when appellant followed him, he

ran away from the spot and fell down near the tap. Dr. Nikita Verma

(PW-6) and Dr. O.P. Yadav (PW-2) have also admitted that injuries

found on the left hand of the complainant can be caused due to fall

down, therefore, defence taken by the appellant that injuries found on

the left hand of the complainant was caused due to fall down in drunken

state, cannot be totally denied. However, so far as all the injuries are

concerned, Dr. Nikita Verma (PW-6) in paragraph-4 of her statement

has stated that injury No.1 can be caused due to fall down on rugged

surface while injury No.2 can be caused due to fall down on rough

surface. As the place of incident was Damar road, as stated by the

complainant, therefore, both the above injuries cannot be said to be

caused due to fall down.

11. Although the statement of complainant Bholu (PW-4) is

contradictory on the point of weapon used by the appellant at the time

of incident. He has stated in his statement that appellant assaulted him

by iron rod, while in the FIR lodged by him, it is mentioned that

appellant assaulted him by lathi. This improvement with regard to

weapon may be exaggeration but only on the basis of that, the whole

statement of complainant Bholu (PW-4) cannot be disbelieved. His

statement with regard to the fact that the appellant assaulted him finds {6} Cri.A. No.361/2006

support from the medical evidence as well as from the FIR Ex.P/1

lodged by the complainant as Sub-Inspector Vijay Singh (PW-1)

specifically deposed that he lodged the FIR as stated by the

complainant. There is nothing on record on the basis of which above

statement of complainant supported by the FIR (Ex.P/1) and medical

evidence (Ex.P/4) can be disbelieved. In these circumstances,

probability that fracture in left humerus bone of the complainant was

caused due to his fall down, cannot be denied, therefore, it is not

proved beyond reasonable doubt that the fracture in left humerus bone

was caused by the appellant, but, it is proved beyond reasonable doubt

that appellant assaulted the complainant. Thus, the trial Court has

committed illegality in recording the conviction under Section 325 of the

IPC against the appellant, however, at the most, the offence committed

by the appellant would be covered under Section 323 of the IPC.

12. In view of aforesaid discussions, the appeal is partly

allowed and the conviction and sentence recorded under Section 325 of

the IPC against the appellant by the trial Court is hereby altered into

Section 323 of IPC. Hence, appellant is convicted under Section 323 of

the IPC.

12. Considering the totality of the fact and circumstances, it

will be proper to sentence the appellant to the imprisonment for a

period which he has already undergone in custody i.e. from 30.08.2004

to 02.09.2004 (4 days) which is sufficient punishment for the offence {7} Cri.A. No.361/2006

under Section 323 of IPC. Considering the nature of injuries on the body

of the complainant, in view of this Court, he deserves to be

compensated for an amount of Rs.3,000/- towards compensation. Thus,

it is directed that the amount of fine of Rs.3,000/- shall be payable to

the injured complainant Bholu (PW-4) as compensation under Section

357 of Cr.P.C. Since the appellant has already deposited the fine

amount of Rs.3,000/-, therefore, his presence is no more required in the

Court.

13. Appellant is on bail, his bail bonds and surety bonds are

cancelled.

14. Record of the trial Court be sent back post-haste along with

the copy of this judgment for information and necessary action.

(Satyendra Kumar Singh) Judge

RC MRS RASHMI Digitally signed by MRS RASHMI CHIKANE PASWAN DN: c=IN, o=HIGH COURT OF MADHYA PRASESH, ou=HIGH COURT OF MADHYA

CHIKANE PRASESH, postalCode=482007, st=Madhya Pradesh, 2.5.4.20=a888d2b3c97dfbac2eb4b3f98f21d08

PASWAN d2e8bbaded0bbf56c1a9b88ecb22f003a, cn=MRS RASHMI CHIKANE PASWAN Date: 2021.10.08 17:28:23 +05'30'