Mukesh Yadav vs The State Of M.P.
2022 Latest Caselaw 6359 MP

                                                          1
                               IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                   BEFORE
                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 28th OF APRIL, 2022

                                     CRIMINAL APPEAL No. 1805 of 1998

                      Between:-
                      MUKESH YADAV , AGED ABOUT 25 YEARS, (MADHYA
                      PRADESH)

                                                                                         .....APPELLANT
                      (BY SHRI AMAN DAWRA, ADVOCATE AS AMICUS CURIAE FOR THE
                      APPELLANT)

                      AND

                      THE STATE OF M.P. (MADHYA PRADESH)

                                                                                      .....RESPONDENTS
                      (BY SHRI AJAY TAMRAKAR, PANEL LAWYER)

                 This appeal coming on for hearing this day, the court passed the following:
                                                       ORDER

This appeal is filed under Section 374 of Cr.P.C. on behalf of the appellant Mukesh S/o Ram Prasad Yadav.

2. Appellant is aggrieved of judgment of conviction and sentence dated 31.07.1998, passed by learned Special Judge, Damoh in Sessions Trial No.14/1998, (State

of M.P. Vs. Mukesh) whereby learned Special Judge has convicted the appellant under Section 307 of IPC and sentenced him to undergo 3 years R.I. along with fine of Rs.1,000/-. Appellant is also convicted under Sections 25 and 27 of Arms Act and is sentenced to undergo 6 months R.I.

3. Learned counsel for the appellant submits that as per the prosecution story, on 09.10.1997, when complainant M.S. Tomar was sitting with his wife at his house situated at Surekha Colony, Damoh, then at about 8:30 PM, he saw that accused Mukesh Yadav had approached Shri Bhawani Shankar, residing in front of his house, and on the issue of payment of Chanda, he was abusing him. Complainant M.S. Tomar had reached the spot and had asked the accused not to use abusive language on which accused had left the house of Bhawani Shankar.

Signature Not SAN Verified 4. Thereafter, M.S. Tomar returned to his house and after some time accompanied Digitally signed APARNA TIWARI by with his wife was going to market on his scooter then close to the house of Date: 2022.04.29 19:15:33 IST

Bhawani Shankar, accused Mukesh had hit M.S. Tomar with a sword on left side of his cheek which had hit him on his cheek and head causing incised wounds, resulting in flow of blood. Complaint had fallen down from his scooter and when his wife tried to save him, Mukesh had hit her also. Thereafter, M.S. Tomar was hit on his back by Mukesh and when

Bhawani Shankar tried to caught hold of him, he ran away. It is submitted that prosecution examined mainly four witnesses as eye witness i.e. wife of the injured, Shri Bhawani Shankar (PW-2), Praveen Kumar (PW-3), Smt. Sudha Tomar (PW-7) and the victim himself (PW-6). Besides Dr. O.P. Dubey (PW-4) who had examined the injured at District Hospital, Damoh and Dr. Alok Agrawal who had treated the injured at Jabalpur Hospital, Jabalpur as PW-13. Prosecution had also examined seizure witness Ram Lal, besides I.O. and others.

5. It is submitted that PW-2 Bhawani Shankar turned hostile. He has not supported the prosecution case. Praveen Kumar (PW-3) is also hostile. Dr. O.P. Dubey (PW-4) who had examined the injured M.S. Tomar (PW-6) on 09.10.1997 at about 9:50 PM found following injuries on the body of the injured namely one incised wound measuring 6 and a half inch x3/4"x1/2" on left hand side of the face at a distance of a half an inch from the nose travelling up to back of the Mendible showing cut on the muscles and the nerves, which was bleeding. (PW-4) Dr. O.P. Dubey had also seen a incised wound measuring 5 and a half inch x3/4"x1" on left hand side of the face behind the Maximally Sinus as a result of which, he had noted fracture of metastasis process bone.

6. Learned counsel for the appellant submits that this report of Dr. O.P. Dubey (PW-4) is contradicted by documentary evidence Ex.P-17 which is the X-ray report prepared by one Dr. N.Khare whose signatures have been identified by the witness Dr. Alok Agrawal (PW-13).

7. Reading Ex.P-17, it is submitted that it is clearly mentioned that there was no bony abnormality seen. Thus, it is submitted that PW-4 had opined about fracture without their being any X-ray report whereas Ex.P/17 is based on X-ray report and has been duly supported by treating Dr. Alok Agrawal (PW-13) who has clearly admitted in his cross- examination that since there was no fracture, injuries will be termed to be simple in nature. Reading this evidence, it is submitted that only on the basis of ocular evidence of M.S. Tomar (PW-6) and Sudhar Tomar (PW-7), conviction under Section 307 of IPC cannot be sustained. Learned counsel for the appellant further submits that ocular evidence is contrary to the medical opinion inasmuch as there was no injury detected on the back of the injured

M.S. Tomar. Mrs. Sudha Tomar had not sustained any injury.

8. In view of such facts, it is submitted that at best, this will be a case for conviction under Section 324 of IPC and will not fall under Section 307 of IPC as none of the Doctors have opined that in the usual course, these injuries would have been life threatening.

9. Shri Ajay Tamrakar, learned Panel Lawyer for the State, in his turn, submits that learned Special Judge, in paragraph 27 and 29 of the impugned judgment, has referred to fracture but after going through the case diary and perusing Ex.P-17 which is the X-ray

report and opinion of Dr. Alok Agrawal (PW-13), is in agreement that there was no fracture sustained by the injured M.S. Tomar. He is in agreement that nature of the injuries has not been termed to be grievous and on the contrary Dr. Alok Agrawal (PW-13) termed it to be simple in nature.

10. In view of such facts, it is evident that injuries sustained were caused by a sword. A sword has been seized from the possession of the present appellant. Thus, conviction under the Arms Act is just and appropriate. However, the opinion of Dr. Alok Agrawal (PW-13) is unambiguous that the injuries were simple in nature. There is no mention of the fact that injuries were grievous or were sufficient in usual course to cause death of the injured, therefore, conviction under Section 307 of IPC cannot be sustained and is converted to one under Section 324 of IPC. Appellant has suffered incarceration from 15.12.1997 to 09.11.1998 when he was admitted to bail by a Bench of this Court. There is no material to show that attempt was on the life of the victim and the case would otherwise fall under Section 334 of IPC.

11. On perusal of the record, it is evident that fine amount was deposited and appellant has already undergone imprisonment for about 11 months and has faced long trial since, 1997 for about 24 years now.

12. The appellant has already suffered incarceration for 11 months and has been on bail throughout the trial so also during pendency of this appeal coupled with the fact that the appellant has no criminal antecedent and this is the first offence committed by him, the appellant's appeal is partly allowed. The conviction of the appellant is altered from one under Section 307 of IPC to under Section 324 of IPC, looking to the fact that incident took place in 1997, over 24 years' time has lapsed since when parties have faced trial and

pendency of his appeal. However, conviction and sentence awarded by the trial Court to the appellant under Section 25 and 27 of Arms Act is hereby maintained. The appellant is sentenced to the period he has already undergone. Since the appellant is on bail, his bail bonds are hereby discharged.

13. In above terms, the appeal is disposed of.

14. Learned counsel for the appellant, on production of copy of this order, will be entitled to fees as per the Schedule from the High Court Legal Services Authority. This Court would live to place on record its appreciation for services rendered by Shri Aman Dawra, learned counsel for the appellant and Shri Ajay Kumar Tamrakar, learned Panel Lawyer for the assistance rendered by them.

Let record of the Sessions Court be sent back.

(VIVEK AGARWAL) JUDGE AT