Madhya Pradesh High Court

Atit vs The State Of Madhya Pradesh on 20 September, 2022

Author: Satyendra Kumar Singh

                          1
                                                   Cr.Appeal No.1334/2016

               HIGH COURT OF MADHYA PRADESH
                      BENCH AT INDORE

                              BEFORE
           HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                    ON THE 20th OF SEPTEMBER, 2022

                 CRIMINAL APPEAL No. 1334 of 2016

     BETWEEN:-
   ATIT S/O NAGESH GOHAR, AGED ABOUT 23 YEARS, OCCUPATION:
1.
   LABOUR 55/2, PARDESHIPURA INDORE (MADHYA PRADESH)
   CHARCHIT S/O NAGESH GOHAR, AGED ABOUT 21 YEARS,
2. OCCUPATION: LABOUR 55/2, PARDESHIPURA INDORE (MADHYA
   PRADESH)
   NAGESH S/O GOPIKRISHNA GOHAR, AGED ABOUT 50 YEARS,
3. OCCUPATION: SERVICE 55/2, PARDESHIPURA INDORE (MADHYA
   PRADESH)
   SHEKHAR S/O KRISHNA KHAKHA, AGED ABOUT 19 YEARS,
4. OCCUPATION: LABOUR 255/11, LALGALI PARDESHIPURA INDORE
   (MADHYA PRADESH)
                                                       .....APPELLANT
     (BY SHRI GAJENDRA SHARMA)

     AND

     THE STATE OF MADHYA PRADESH THRU.STATION HOUSE
     OFFICER P.S.BANGANGA (MADHYA PRADESH)
                                                    .....RESPONDENTS
     (BY SHRI RAJESH JOSHI, GOVT. ADVOCATE)

Reserved on : 08/09/2022
           This appeal coming on for judgment this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:

                              JUDGMENT

Satyendra Kumar Singh, J.,

Appellants have preferred this appeal under Section 374(2) of the

Cr.Appeal No.1334/2016

Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] being

aggrieved by the judgment dated 09.09.2016 passed by the Court of

Additional Sessions Judge, Indore in S.T. No. 589/2013, whereby the

appellants have been convicted for the offence punishable under

Section Section 324 of Indian Panel Code, 1860 (in short 'IPC') and

sentenced them to undergo RI for 2 years with fine of Rs.1000/- with

default stipulation.

2. The prosecution case in brief is as follows:

(i) On 22.12.12 at about 08:30 AM, complainant Aman @ Annu

alongwith his friend Manish was going on his motorcycle from

Pardeshipura to D&H Dairy Company and reached railway bridge, near

Polo Ground, appellants Charchit and Shekhar came there on

motorcycle from behind and started abusing the complainant. Appellant

Charchit assaulted the complainant by knife on his neck and in the

meantime, appellant Nagesh and Atit came there on a car and dashed

the complainant, due to which he fell down. Appellant Nagesh

assaulted the complainant by knife on left side of his chest, while

appellants Ateet and Shekhar assaulted the complainant by knife on his

right leg, left thigh and on the other parts of his body. On hearing the

screams of complainant's friend Manish, when Sanjit came there and

he also cried out, appellants fled away from the spot threatening the

Cr.Appeal No.1334/2016

complainant. Thereafter, witnesses Manish and Sanjit took the

complainant to Life Line Hospital.

(ii) On the same day at about 9.30 AM, Dr. Brijesh Lal medically

examined the complainant and found fresh incised wounds on his left

side of chest, left ear, lower right thigh and upper left thigh as per MLC

Report (Ex.P-20). After getting the information, SI Jagdish Malviya

went to the Life Line Hospital and at about 10:25 AM, on the basis of

complainant's oral compliant, recorded dehatinalishi report (Ex.P/9).

On the same day at about 13.00 hours, on the basis of above

dehatinalishi report, FIR (Ex.P-25) was registered against the

appellants at P.S. Banaganga, Indore for the offences punishable under

Section 307, 307/34 of IPC and Section 25(1-B)B of Arms Act.

Appellants were arrested and on their instance, weapon knives, used in

the crime were seized. After completion of investigation, the charge

sheet was filed before the Court of Judicial Magistrate First Class,

Indore, who committed the case to the Court of Additional Sessions

Judge, Indore.

3. Learned trial Court considering the material prima-facie

available on record framed the charges u/S 307, 307/34 of IPC and

Section 25(1-B)B of the Arms Act against the appellants who abjured

their guilt and prayed for trial.

Cr.Appeal No.1334/2016

4. Learned trial Court after appreciating the oral as well as

documentary evidence available on record, acquitted the appellants

from the charges u/S 307, 307/34 of IPC and Section 25(1-B)B of the

Arms Act, but convicted them for the offence punishable u/S 324 of

IPC and sentenced them as stated in para 1 of the judgment. Being

aggrieved by the said judgment of conviction and order of sentence,

appellants have preferred this appeal for setting aside the impugned

judgment and discharging them from the aforesaid charge.

5. Learned counsel for the appellants submits that the learned trial

Court has committed legal error while appreciating the evidence

available on record. He submits that complainant Aman @ Annu has

deposed that at the time of incident, he was going alone and some

unknown persons assaulted him. He has denied the presence of witness

Manish on the spot at the time of incident. Even though, learned trial

Court only on the basis of statement of Manish, has convicted the

appellants. Parties have resolved their dispute amicably out of the

Court and have also filed compromise application in this regard. Thus,

impugned judgment of conviction and order of sentence deserves to be

set aside and appellants may be acquitted from the charges framed

against them.

6. Per contra, learned counsel for the respondent/State while

Cr.Appeal No.1334/2016

supporting the impugned judgment of conviction and order of sentence

submits that judgment so passed by the trial Court is based on proper

appreciation of evidence available on record. Therefore, confirming the

judgment of conviction and order of sentence, the appeal filed by the

appellants deserves to be dismissed.

7. Heard learned counsel for both the parties at length and perused

the record.

8. Prosecution has examined complainant Aman (PW-3), Manish

(PW-4) and Sanjit (PW-7) as eye witnesses. Other material witnesses

are Dr. Brijesh Lal (PW-9), who medically examined the complainant

and ASI Jagdish (PW-11), who recorded the dehatinalishi report (Ex.-9)

and investigated the case.

9. From the statement of Complainant Aman (PW-3) and Manish

(PW-4) it is established that on the date of incident at about 9.00 AM,

when complainant Aman was going on his motorcycle and reached at

railway bridge, near Polo Ground, he was assaulted by knives. From the

statement of Dr. Brijesh Lal (PW-9) it is also established that in the

above incident he had sustained incised wounds on his left side of

chest, left ear, lower right thigh and upper left thigh as per MLC Report

(Ex.P-20).

10. So for as the issue whether above injuries were intentionally

Cr.Appeal No.1334/2016

caused by the appellants is concerned complainant Aman (PW-3)

deposed that on the date of incident at about 9.00 AM, when he was

going on his motorcycle and reached at railway bridge, near Polo

Ground all of sudden 5-6 persons came there on motorcycles and

dashed him, due to which he became unconscious. He deposed that he

was assaulted during his unconsciousness, therefore, he could not see

who brought him to the hospital.

11. Eye witness Manish (PW-4) although supported the prosecution

case and deposed that on the date of incident when he was going with

the complainant on his motorcycle, appellants followed them and

assaulted the complainant with knives and caused injuries to him, but

his presence on the spot at the time of incident has been denied by the

appellants as well as by the complainant himself. Complainant Aman

(PW-3), in his examination-in-chief, deposed that at the time of

incident he was going alone. He thereafter, in para 5 of his cross-

examination specifically denied the fact that Manish was sitting on his

motorcycle as pillion rider. Another eye witness Sanjit (PW-7) has

totally denied the incident and turned hostile.

12. As Manish did not sustain any injury during the incident and no

one else has proved his presence on the spot, therefore, his presence on

the spot at the time of incident can not be proved beyond reasonable

Cr.Appeal No.1334/2016

ground, therefore, only on the basis of his statement, this fact cannot be

said to be proved beyond reasonable doubt that the injuries found on

the body of the complainant were caused by the appellants.

13. In the light of the aforesaid discussion, this Court finds that the

prosecution has failed to prove its case beyond reasonable doubt.

Learned trial Court has committed error in holding the appellants guilty

for the offences punishable under 324 of IPC . Thus, this Court is of

the considered opinion that the impugned judgment cannot be sustained

in the eyes of law and facts on record, and is liable to be set aside.

Hence, the appeal filed by the appellants deserves to be allowed.

Accordingly, this Court passes the following order:

(i) Criminal Appeal No.1334/2016 filed by the appellants -

Ateet, Charchit, Nagesh and Shekhar is allowed.

(ii) The judgment of conviction and order of sentence dated

09.09.2016 passed in S.T.No.589/2013 by which

appellants have been convicted under 324 of IPC and

sentenced them as stated in para 1 of the judgment is

hereby set aside.