Durgesh Vanshkar vs The State Of Madhya Pradesh
2022 Latest Caselaw 1677 MP

                                                       1                      Cr.A.No.8285/2021




         IN THE HIGH COURT OF MADHYA PRADESH AT
                        JABALPUR
                                              BEFORE
             HON'BLE SHEI JUSTICE VIRENDER SINGH
                        ON THE 07th OF FEBRUARY, 2022
                            Criminal Appeal No.8285/2021

Between :

Durgesh Vanshkar S/o Kishorilal
Vanshkar, Aged About 29 Years,
Occupation:    Labour   Village
Chichali, District Narsinghpur,
M.P.
                                                                                   ..... Appellant
(By Shri Sanjay Kushwaha, Advocate)

AND

The State of Madhya Pradesh
Through P.S. Chichali, District
Narsinghpur, M.P.
                                                                               ...... Respondent
(Shri Yashovardhan Shukla, Panel Lawyer)
..............................................................................................................
                      (Heard through Video Conferencing)
                                        JUDGMENT

This appeal has been preferred by the appellant being aggrieved by the judgment and order dated 23.12.2021 passed by First Additional Sessions Judge to the Court of First Additional Session Judge, District Narsinghpur in S.T. No.152/2019; whereby, the appellant has been convicted under Section 324 IPC and sentenced to undergo RI for 06 months and fine of Rs.1,000/-, in default RI for 01 month.

2- According to the case of the prosecution, on 17.09.2014 at about 21.00 hrs, while playing the cards a dispute arose between two

friends which turned into brawl and during that the appellant gave a blow of lathi on the occipital region of the complainant. 3- The complainant lodged the FIR which was registered at Crime No.260/14. During investigation, the police prepared spot map Ex.P- 5, sent injured for medication examination, obtained report Ex.P-8 and on the basis of disclosure of the accused/appellant recovered lathi from his possession vide Ex.P-6. The police also recorded statement of the witnesses and after completing the investigation filed the charge-sheet.

4- It is submitted by the learned counsel for the appellant that it is not a case where the offence has been committed after preparation, pre-meditation or intention. It was a case wherein while playing the cards a dispute arose between two friends which turned into brawl. As per allegation, in a heated moment, all of a sudden, the appellant gave a lathi blow, which hit occipital region of the complainant. His intention was not to cause any serious injury to the complainant, hence, he did not repeat the blow.

5- He further contended that having regard to the evidence brought on record by the prosecution, no offence under Section 324 of IPC can be said to have been proved against the appellant. According to him, it is the case of prosecution that injury which was caused by the appellant to the complainant by means of a lathi. It is contended that at the most, an offence under Section 323 of IPC can be said to have been made out against the appellant. He is in jail since 23.12.2021. Therefore, it is prayed that looking to the circumstances of the case, the sentence awarded to the appellant may be reduced to the period already undergone by him.

6- Learned counsel appearing for the State has opposed the prayer and supported the impugned judgment.

7- I have heard the learned counsel for the parties and perused the record.

8- In order to attract Section 324 of IPC, it is necessary that the hurt must have been caused by instrument for shooting, stabbing or cutting or any instrument which, used as weapon of offence, is likely to cause death. The case of the prosecution is that the injury was caused by means of a lathi. In the absence of such material on record, in my opinion, the conviction of the appellant for offence under Section 324 of IPC cannot be sustained. I find considerable force in the submission of the ld. counsel for the appellant that even accepting the entire evidence of prosecution as correct, the prosecution has not been able to prove the offence under Section 324 of IPC against the appellant.

9- In this view of the matter, the conviction under Section 324 of IPC is liable to be converted into one under Section 323 of IPC. 10- At this juncture, the ld. counsel for the appellant submitted that he does not want to challenge the conviction of the appellant under Section 323 IPC but his limited prayer is that looking to the nature of accusation found proved against the appellant, his jail sentence may be reduced to the period already undergone by him. 11- Looking to the nature and gravity of the offence, the manner and method in which the offence has been committed and the submission of the ld. counsel for the appellant and the period of incarceration i.e. 01 month and 20 days (from 17.07.2019 to 19.07.2019 and from 23.12.2021 till today), in the considered opinion of this Court, ends of justice would be served if the sentence of

imprisonment awarded to the appellant is reduced to the period already undergone for the offence under Section 323 IPC. 12- In the result, the appeal is allowed in part and the impugned conviction is altered to one under Section 323 of the IPC and the appellant is sentenced to the period already undergone by the appellant. However, the sentence of fine is maintained. 13- Appellant is in jail. Subject to payment of fine, he be released forthwith, in case he is not required to be detained in any other case. 14- The order of the trial Court with regard to the disposal of the property is affirmed.

15- With the aforesaid modifications in the conviction and sentence awarded to the appellant, appeal is partly allowed and disposed off.

(VIRENDER SINGH) JUDGE anand Digitally signed by ANAND KRISHNA SEN Date: 2022.02.11 18:44:40 +05'30'