Madhya Pradesh High Court
Jaydayal vs The State Of Madhya Pradesh on 23 August, 2023
Author: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
CR.R. NO. 4817 OF 2022
BETWEEN:-
1. JAIDAYAL S/O SUTTE KUSHWAHA AGED
ABOUT 38 YEARS OCCUPATION
AGRICULTURIST, R/o SUNARI POLICE THANA,
BHANDER, DISTT. DATIA.
2. AMAR SINGH S/O SEETARAM KUSHWAHA
AGED ABOUT 49 YEARS OCCUPATION
AGRICULTURIST, R/o SUNARI POLICE THANA,
BHANDER, DISTT. DATIA.
3. KISHANJU S/O MANIRAM KUSHWAHA AGED
ABOUT 51 YEARS OCCUPATION
AGRICULTURIST, R/o SUNARI POLICE THANA,
BHANDER, DISTT. DATIA.
4. KAMLESH S/O AMARSINGH KUSHWAHA
AGED ABOUT 21 YEARS OCCUPATION
AGRICULTURIST, R/o SUNARI POLICE THANA,
BHANDER, DISTT. DATIA.
.....PETITIONERS
(BY SHRI SUSHEEL GOSWAMI - ADVOCATE)
AND
1. STATE OF M.P. THROUGH P.S. BHANDER,
2
DISTT. DATIA.
2. RAJARAM KEWAT AGED 53 YEARS S/O
HARDAYAL KEWAT R/O GRAM SUNARI THANA
BHANDER, DISTT. DATIA.
.....RESPONDENTS
(RESPONDENT/STATE BY SHRI RAJEEV UPADHAYA GOVT.
ADVOCATE AND SHRI VINOD KUMAR, ADVOCATE FOR
RESPONDENT NO. 2. )
--------------------------------------------------------------------------------
Reserved on : 31.07.2023
Delivered on : 23.08.2023
--------------------------------------------------------------------------------
This petition coming on for admission this day, Hon'ble Shri
Justice Sanjeev S Kalgaonkar passed the following:
ORDER
The Criminal Revision u/s. 397 r/w Section 401 is filed
against the judgment dated 09.12.2022 passed by learned First
Additional Sessions Juge, Datia in Criminal Appeal No. 29 of
2022 whereby the judgment of conviction and sentence dated
22.03.2022 passed by Shri Vedprakash Sagar, Judicial Magistrate
First Class, Bhander, Distt. Datia, was confirmed and the appeal
was rejected.
For the sake of convenience, hereinafter, the revision
petitioners Jaidayal, Amar Singh, Kishanju and Kamlesh will be
addressed as accused and the respondent no. 2 Rajaram Kewat will
be addressed as complainant.
The exposition of facts, giving rise to revision, is as under:-
1. Accused Amar Singh used to throw garbage on the land of
complainant Rajaram. The sewage drain of Rajaram got choked
due to garbage thrown by Amar Singh. On 15.10.2016, Rajaram
was clearing sewage drain. Accused Jaidayal, Amar Singh,
Kishanju and Kamlesh started abusing Rajaram in filthy language.
They restrained Rajaram from cleaning the drainage claiming that
land belongs to them. Jaidayal manhandled Rajaram and inflicted
injury by lathi. Kalyan, Vidya Devi and Harimohan intervened.
Amar Singh caused injury to Kalyan, Kamlesh manhandled
Harimohan and caused injury to him. Vidya Devi also got injured.
Accused threatened to kill Rajaram of dire consequence. Rajaram
lodged FIR with Police Station, Bhander, Distt. Datia.
2. Police Station, Bhander registered Crime No. 204 of 2016
for offence punishable u/s. 323, 294 and 506 of IPC. Medico
Legal Examinations of Vidya, Harimohan, Kalyan and Rajaram
were conducted. After recording of statement u/s. 161 of Cr.P.C,
relevant seizure and arrest of accused, charge-sheet u/s. 173 of
Cr.P.C was filed.
3. Learned Trial Court, after trial, convicted accused Jaidayal,
Amar Singh, Kishanju and Kamlesh as under:-
Sr. No. Name of Sec. and Imprisonment Fine Default in
applicant its Act and its nature payment of
fine.
1. Jaidayal s/o 323/34 For causing simple For each 30 days
Sutte (four hurt to Rajaram, injured fine
Kushwaha counts) of Kaliyan, Vidya of Rs. 100/-
IPC Devi, Harimohan (total
two months RI Rs.400/-)
each (total eight
months)
For causing simple
hurt to Kaliyan, For each
injured fine
(two Vidya Devi six 30 days
months RI each of Rs. 300/-
counts) of
(total one year) (total
IPC
Rs.600/-)
2. Amar Singh 323/34 For causing simple For each 30 days
s/o Sita Ram (four hurt to Rajaram, injured fine
Kushwaha counts) of Kaliyan, Vidya of Rs. 100/-
IPC Devi, Harimohan (total
two months RI Rs.400/-)
each (total eight
months)
For causing simple
For each 30 days
324/34 hurt to Kaliyan,
Vidya Devi six injured fine
(two
months RI each of Rs. 300/-
counts) of
(total one year) (total
IPC
Rs.600/-)
3. Kishanju s/o 323/34 For causing simple For each 30 days
Mani Ram (four hurt to Rajaram, injured fine
Kushwaha counts) of Kaliyan, Vidya of Rs. 100/-
IPC Devi, Harimohan (total
two months RI
each (total eight Rs.400/-)
months)
For causing simple
hurt to Kaliyan, 30 days
324/34 Vidya Devi six For each
(two months RI each injured fine
counts) of (total one year) of Rs. 300/-
IPC (total
Rs.600/-)
4. Kamlesh s/o 323/34 For causing simple For each 30 days
Amar Singh (four hurt to Rajaram, injured fine
Kushwaha counts) of Kaliyan, Vidya of Rs. 100/-
IPC Devi, Harimohan (total
two months RI Rs.400/-)
each (total eight
months)
For causing simple
hurt to Kaliyan, For each
injured fine
(two Vidya Devi six 30 days
months RI each of Rs. 300/-
counts) of
(total one year) (total
IPC
Rs.600/-)
4. Feeling aggrieved by the judgment of conviction and order
of sentence, criminal appeal was filed before the Sessions Court,
Datia. Learned First Additional Sessions Judge, Datia vide
impugned judgment dated 9th of December, 2022 in Criminal
Appeal No. 29 of 2022 rejected the appeal and partly confirmed
the conviction but modified the condition and sentence as under:-
Conviction u/s. Sentence In Default of
Imprisonment Fine payment of Fine
323/34 of IPC Two months Rs. 100/- (Rs. One Imprisonment
(with regard to rigorous hundred) for 30 days
hurt of Rajaram) imprisonment
324/34 of IPC Six months RI Rs. 300 for each Imprisonment
(two counts) on each count count (total Rs. for 30 days
with regard to 600/-)
causing hurt to
Vidya Devi and
Kalyan
The judgment of First Appellate Court is assailed in instant
criminal revision mainly on the ground that the prosecution
witnesses have given exaggerated statements before the Court.
The evidence of injured prosecution witness was not duly
corroborated by the medical evidence. No independent witness
was examined. The prosecution had failed to prove co-relation
between injuries and weapons. Learned First Appellate Court did
not consider aforementioned aspect of the matter. Imposition of
fine only would have been sufficient in the circumstances of the
case, therefore, impugned judgment dated 09.12.2022 deserves to
be set aside.
Per contra, learned Counsel for the State ably assisted by
learned Counsel for respondent no. 2 submitted that learned
appellate Court has considered all aspects of the matter and the
contentions put forth by the defence. Learned Appellate Court has
given appropriate reasoning in the impugned judgment, therefore,
in absence of any patent illegality or perversity, the concurrent
finding of conviction and sentence by learned Trial Court and First
Appellate Court cannot be interfered with.
Heard learned Counsel for both the parties and perused the
record.
Under Section 397 of the Cr.P.C, the Court is vested with
the power to call for and examine the record of any inferior Court
for the purpose of satisfying itself as to legality and regularity of
any proceedings or order made in a case. The object of this
provision is to correct the patent defect or an error of jurisdiction
or the perversity which has crept in the proceedings.
However, this Court, in revision, exercises supervisory
jurisdiction of restricted nature. It cannot re-appreciate the
evidence, as second Appellate Court, for the purposes of
determining whether the concurrent finding of fact reached by the
learned Magistrate and the learned Additional Sessions Judge was
correct. Recently, in case of Malkeet Singh Gill v. State of
Chhattisgarh, reported in (2022) 8 SCC 204, the Supreme Court
observed as under-
"10.Before adverting to the merits of the contentions,
at the outset, it is apt to mention that there are
concurrent findings of conviction arrived at by two
courts after detailed appreciation of the material and
evidence brought on record. The High Court in
criminal revision against conviction is not supposed
to exercise the jurisdiction alike to the appellate court
and the scope of interference in revision is extremely
narrow. Section 397 of the Criminal Procedure Code
(in short "CrPC") vests jurisdiction for the purpose of
satisfying itself or himself as to the correctness,
legality or propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any
proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be well-founded error
which is to be determined on the merits of individual
case. It is also well settled that while considering the
same, the Revisional Court does not dwell at length
upon the facts and evidence of the case to reverse
those findings."
(Duli Chand v. Delhi Admn.(1975) 4 SCC 649; State of
Maharashtra v. Jagmohan Singh Kuldip Singh Anand (2004) 7
SCC 659 also relied)
In the backdrop of the aforesaid proposition of law, the
fact situation of the case in hand is examined.
Learned Trial Court and First Appellate Court have
considered the testimony of injured Rajaram, Vidya Devi and
Kalyan with reference to that cross-examination and corroboration
by medical evidence. The revision-petitioners took exceptions to
the reasoning of the Trial Court and the First Appellate Court on
the ground that both the Courts did not consider exaggerations in
the evidence of prosecution witness. The injured witness Rajaram
PW-1,Vidya Devi PW-2 and Kalyan PW-3 are rustic villagers.
They were not confronted with their previous statements under
Section 145 of the Evidence Act to cull out exaggerations in their
statement.
Learned counsel for the petitioners drawn attention of this
Court to their testimony vis-a-vis medical evidence. It is common
phenomenon that rustic witness often exaggerate and add
embroidery to prosecution story in their over anxiety to present the
gravity of incident or perhaps, for the fear of being disbelieved. It
is rare to find a witness whose evidence does not contain some
exaggeration or embellishment. Such exaggeration, embroidery or
embellishment need not be given much importance so as to
discard entire evidence, if the testimony of witness is otherwise
trustworthy.
The Supreme Court in case of Bhagwan Jagannath Markad
v. State of Maharashtra, (2016) 10 SCC 537 laid down guiding
principles for appreciation of evidence as under:-
19. While appreciating the evidence of a witness, the court has
to assess whether read as a whole, it is truthful. In doing so, the
court has to keep in mind the deficiencies, drawbacks and
infirmities to find out whether such discrepancies shake the
truthfulness. Some discrepancies not touching the core of the
case are not enough to reject the evidence as a whole. No true
witness can escape from giving some discrepant details. Only
when discrepancies are so incompatible as to affect the
credibility of the version of a witness, the court may reject the
evidence. Section 155 of the Evidence Act enables the doubt to
impeach the credibility of the witness by proof of former
inconsistent statement. Section 145 of the Evidence Act lays
down the procedure for contradicting a witness by drawing his
attention to the part of the previous statement which is to be
used for contradiction. The former statement should have the
effect of discrediting the present statement but merely because
the latter statement is at variance to the former to some extent,
it is not enough to be treated as a contradiction. It is not every
discrepancy which affects the creditworthiness and the
trustworthiness of a witness. There may at times be
exaggeration or embellishment not affecting the credibility. The
court has to sift the chaff from the grain and find out the truth.
A statement may be partly rejected or partly accepted [Leela
Ram v. State of Haryana, (1999) 9 SCC 525, pp. 532-35, paras
9-13 : 2000 SCC (Cri) 222] . Want of independent witnesses or
unusual behaviour of witnesses of a crime is not enough to
reject evidence. A witness being a close relative is not enough
to reject his testimony if it is otherwise credible. A relation may
not conceal the actual culprit. The evidence may be closely
scrutinised to assess whether an innocent person is falsely
implicated. Mechanical rejection of evidence even of a
"partisan" or "interested" witness may lead to failure of justice.
It is well known that principle "falsus in uno, falsus in
omnibus" has no general acceptability [Gangadhar
Behera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93,
para15 : 2003 SCC (Cri) 32]. On the same evidence, some
accused persons may be acquitted while others may be
convicted, depending upon the nature of the offence. The court
can differentiate the accused who is acquitted from those who
are convicted. A witness may be untruthful in some aspects but
the other part of the evidence may be worthy of acceptance.
Discrepancies may arise due to error of observations, loss of
memory due to lapse of time, mental disposition such as shock
at the time of occurrence and as such the normal discrepancy
does not affect the credibility of a witness.
In light of aforementioned proposition of law, it is clear that
exception taken by the revision-petitioners with regard to
exaggeration in testimony of Rajaram, Vidya Devi and Kalyan is
meritless.
The evidence of injured Rajaram (PW-1), Vidya Devi (PW-
2) and Kalyan (PW-3) was found to be trustworthy and duly
corroborated by medical evidence. It is further corroborated by
FIR (Exhibit P-1) which was lodged without delay. Therefore,
absence of any independent witness would not affect the
credibility of prosecution case. Learned trial Court and the First
Appellate Court also considered existence of previous enmity
between the parties and held that the accused are not entitled for
benefit of doubt on that account.
Thus, Learned First Appellate Court has not committed any
mistake in holding that accused Jaidayal, Amar Singh, Kishanju
and Kamlesh in furtherance of common intention have voluntarily
caused simple hurt to Rajaram, Vidya Devi and Kalyan. Learned
First Appellate Court committed no mistake in modifying the
conviction in exercise of powers under Section 386(b) of Cr.P.C.
holding all the accused guilty for voluntarily causing simple hurt
to Rajaram in furtherance of common intention for offence
punishable under Section 323 r/w Section 34 of IPC and
voluntarily causing simple hurt by dangerous weapon to Vidya
Devi and Kalyan in furtherance of common intention for offence
punishable under Section 324 r/w Section 34 (two counts) of IPC.
Therefore, no case is made out for interference in finding of
conviction as aforesaid in exercise of revisional jurisdiction.
So far as sentence is concerned, the revision-petitioners were
in custody from the date of judgment of Appellate Court i.e.
09.12.2022 till suspension of sentence vide order dated 05.04.2023.
The origin of dispute between the parties relates to throwing of
garbage in sewage drain which is trivial. They are neighbour and
agriculturist by profession. Almost seven years have elapsed since
the incident, the memories of incident would have become stale.
Further jail incarceration may bring permanent bitterness in
relations. Considering the socio-economic circumstances of the
parties, reduction in sentence of imprisonment and enhancement of
fine so as to compensate the injured would serve the ends of justice.
Therefore, this revision-petition is partly allowed on the ground of
propriety of sentence and the sentence is modified as under:-
Conviction u/s. Sentence In Default of payment
Imprisonment Fine of Fine
323/34 IPC (with 1 month rigorous Rs.1000/- (One 30 days of simple
regard to simple imprisonment thousand) imprisonment
hurt to Rajaram)
324/34 (two 2 months rigorous Rs. 2,000/- 30 days simple
counts) of IPC imprisonment on (two thousand) imprisonment
(with regard to each count on each count
simple hurt by
dangerous
weapon to Vidya
Devi & Kalyan )
The sentence of imprisonment shall run concurrently. The
period of custody undergone by each of petitioner shall be set off
against respective sentence of imprisonment. Rs.4,000/- (four
thousand) shall be paid to each of the injured as compensation out
of the fine amount under Section 357 of Cr.P.C.
With aforesaid directions, this revision-petition is hereby
disposed of. Let Copy of this order be sent to the Trial Court for
information and necessary further action.
(Sanjeev S Kalgaonkar)
Judge
ar/vijay
Digitally signed by VIJAY TRIPATHI
DN: c=IN, o=HIGH COURT OF MADHYA
VIJAY
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR,
2.5.4.20=663cb09dd950bfc3ea7ed4f02d9
7ddae5364f1d4b042dbc59921b76e812d2
TRIPATHI
d6b, postalCode=474001, st=Madhya
Pradesh,
serialNumber=58392D8C4E7C9693BFEEB
5B46B3CA006F1127E89008952BBEC528C
E4D82551BD, cn=VIJAY TRIPATHI
Date: 2023.08.24 13:00:26 +05'30'
