Madhya Pradesh High Court
Kailash vs The State Of Madhya Pradesh on 26 December, 2023
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 26 th OF DECEMBER, 2023
CRIMINAL APPEAL No. 2398 of 2016
BETWEEN:-
1. KAILASH S/O MULLU ADFIWASI, AGED ABOUT 45
YEARS, R/O VILL. GULWADA P.S. SULTANGANJ
DISTT. RAISEN (MADHYA PRADESH)
2. GUDDA S/O MULLU ADIWASI, AGED ABOUT 40
YEARS, R/O VILL. GULWADA P.S. SULTANGANJ
DISTT. RAISEN (MADHYA PRADESH)
3. MAN SINGH S/O MULLU ADIWASI, AGED ABOUT
35 YEARS, R/O VILL. GULWADA P.S. SULTANGANJ
DISTT. RAISEN (MADHYA PRADESH)
4. KALLU S/O MULLU ADIWASI, AGED ABOUT 30
YEARS, VILL. GULWADA P.S. SULTANGANJ DISTT.
RAISEN (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ASHOK CHAKKARWARTI - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
SULTANGANJ DISTRICT RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY TAMRAKAR - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
JUDGMENT
The present appeal has been preferred by the appellants under Section
3 7 4 (2) of the Code of Criminal Procedure Code, 1973 challenging the
judgment of conviction and sentence dated 10.08.2016 passed by the
Additional Sessions Judge, Raisen in Sessions Trial No.87/2013, whereby the
learned Sessions Judge has convicted the appellants under Section 325/34 and
sentenced for one year R.I. with fine of Rs.300/-. In default to further undergo
one month R.I. and also convicted under Section 323 read with Section 34 on
two counts and sentenced for 3 months R.I. for each count.
2. The short facts of the case are that the Police Station Sultanganj
District Raisen registered Crime No.135/2010 under Section 341, 294, 323 and
506 read with Section 34 of the IPC against the appellants. Upon the report of
Ramdas Sen who alleged that when he stopped the appellant No.4 Kallu to use
his field as way, later on, the appellants attack on him with the stick (Lathi) and
by fists and kicks caused injuries to the informant Ramdas as well as Shubham
and Hariram. During the investigation, Section 325/34 was enhanced. Learned
trial Court after recording the evidence of the prosecution witnesses, convicted
the appellants under Section 323 read with Section 34 on two counts and under
Section 325/34 and sentenced as stayed in above.
3. The case was committed to the Sessions Court for the purpose of trial
along with the S.T. No. 31/2011 which was registered upon the report of the
appellants was tribal by Sessions Court.
4. Learned counsel for the appellants submits that the present case has
been registered as a counter blast to the case registered against the complainant
party and the appellants have been falsely implicated in the present case, the
injuries were simple in nature, no fracture was sustained by Ramdas. Ramdas
was referred to Government Hospital, Begamganj for x ray. However, the x ray
report of District Hospital Sagar has been submitted to demonstrate the x ray
of right elbow and therefore, no case under Section 325 of IPC is made out.
5. Per contra, learned panel lawyer for the respondent/State submits that
the prosecution witnesses duly supported the prosecution case, doctor Jainesh
Diwakar (PW-10) proved the fracture sustained by injured Ramdas. The
incident was duly reported to the Police and therefore, the appeal be was
dismissed.
6. After hearing the learned counsels for the parties and after perusal of
the record, it appears that the crime was registered against the complainant
party upon the report of the appellants and they have been acquitted in the
cross case. Ramdas (PW-1) has not described the specific role of the
appellants in his statement. Independent witnesses Hariprasad (PW-2),
Nanhebhari (PW--3), Harinarayan (PW-4) have turned hostile. Similarly
Shershingh (PW-5) and Shubham Sen (PW-6) also did not satisfied the specific
overt act of the appellants. Doctor R.K. Balaiya (PW-7) accepted in the cross
examination that the injuries were simple in nature and could be sustained from
falling from the height. Doctor Jinesh Diwarkar (PW-10) has also accepted that
if someone will fell down, the fracture may sustain.
7. In view of the above, the judgment of conviction under Section 325 of
the IPC is set aside and conviction under Section 323 of IPC is upheld.
Therefore, it is expedient to punish the appellants with fine only. The incident
took place in the year 2010. The appellants are agriculturist and villager. The
prosecution has not brought any past criminal antecedent of the appellants on
record. The complainant party has already been acquitted by the trial Court. No
minimum sentence is prescribed in Section 323 of IPC. The conviction under
Section 323 read with Section 34 of the IPC is maintained. However, instead of
jail sentence, the each appellant is directed to deposit compensation amount of
Rs. 12,500/- within two months from today. The trial Court is directed to pay
the amount of compensation to the complainant Ramdas.
8. Accordingly, the jail sentence of the appellants are set aside and the
record of the trial Court be returned along with copy of this order. The
appellants are on bail thus, there personal bond and bail bond be discharged.
9. With the aforesaid, the appeal is partly allowed as indicated above.
(VINAY SARAF)
V. JUDGE
R
