Madhya Pradesh High Court
The State Of Madhya Pradesh vs Dileep on 13 July, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 13 th OF JULY, 2023
CRIMINAL APPEAL No. 5551 of 2022
BETWEEN:-
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. BADNAWAR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SANTOSH SINGH THAKUR,DY. GA FOR STATE/APPELLANT )
AND
1. DILEEP S/O GANPAT BHURIYA, AGED ABOUT 32
Y E A R S , OCCUPATION: LABOUR GRAM-
KANKRAJ,TEHSIL-BADNAWAR (MADHYA
PRADESH)
2. BHAWAR S/O GANPAT BHURIYA, AGED ABOUT 38
Y E A R S , OCCUPATION: MAJDURI GRAM
KANKRAJ, TEHSIL BADNAWAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANUPAM CHOUHAN, ADVOCATE FOR RESPONDENTS)
Reserved On: 06.07.2023
Delivered On 13.07.2023
This criminal appeal coming on for judgment this day, with the consent
of parties, heard finally and the court passed the following:
JUDGMENT
With consent of the parties heard finally.
1. This criminal appeal under Section 378 of Cr.P.C. has been filed by
the appellant/State being aggrieved by the judgment dated 03.02.2020passed by
the learned JMFC, Badnawar District Dhar in RCT No.04/2017 whereby the
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Signed by: AMIT KUMAR
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respondents have been acquitted from the offence under Sections 294, 325,
325/34 & 506(II) of IPC.
2. Learned counsel for the appellant/State contended that the trial Court
has erred in law and facts in disbelieving the statement of Kalu (PW-1)/ injured.
The statement of Kalu is corroborated by the medical testimony of Dr. R.S.
Jaat (PW-7). The testimony of both the witnesses has not been considered
properly by the trial Court. Kalu (PW-1), Dashrath (PW-2) and Shyamubai
(PW-3) have supported the case of the prosecution. As such, the trial court has
erred in law and facts in acquitting the respondents from the charges under
Sections 294, 325, 325/34 and 506 of IPC.
3. Per contra, counsel for the respondents has supported the findings of
t h e learned trial Court; however, during the course of arguments, he has
alternatively prayed that if this Court arrives at a conclusion of conviction,
looking to the period already lapsed during trial faced by the respondents, the
respondents may be punished for only fine amount.
4. Since all offenes are bailable, this appeal is maintainable under Section
378(2)(b) of Cr.P.C. In view of rival submissions, the record of trial Court has
been perused.
5. Having gone thorough the record, it is found that the injured Kallu PW-
1 has vividly supported the prosecution case in his examination in chief and
clearly adverted that accused persons Dilip and Bhanwar had beaten him and
due to which, he had sustained injures at back and chest. Certainly, there are
some omissions regarding the incident, but they are not going to the root of the
case. The case is well supported by PW-2 Damru and Shaymubai PW-3 and
their examination in chief has not been controverted in their cross-examination.
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Signing time: 7/14/2023
6:32:15 PM
6. Learned counsel for the respondent expostulated that when there are
two views regarding conviction or acquittal possible, the Court should adopt
the view which is in favour of accused persons. The view of learned defense
counsel is having its importance, nevertheless, when the case is well backed by
injured as well as eye-witnesses and medical testimony, the view of acquittal has
no probability. That apart, the status of injured witness is well recognized in
criminal jurisprudence. At this juncture, the following ratio laid by Hon'ble Apex
court rendered in the case of Bhajan Singh @ Harbhajan Singh and others
Vs. State of Haryana AIR 2011 SC 2552 is condign to quote here as
under:-
"The testimony of an injured witness has its own
relevancy and efficacy as he has sustained injuries at the
time and place of occurrence and this lends support to
his testimony that he was present at the time of
occurrence. Thus, the testimony of an injured witness is
accorded a special status in law. Such a witness comes
with a built-in guarantee of his presence at the scene of
the crime and is unlikely to spare his actual assailant(s)
in order to falsely implicate someone. "Convincing
evidence is required to discredit an injured witness."
7 . That apart, scriber of the FIR, B.L. Dadaguru PW-6 has also
supported the contents of the FIR and in this regard, his examination in chief is
intact. Having said that Dr. R.S. Jat (PW-7) has also found 05 injuries on
person of the injured Kallu and these injuries are; (i) contusion 2x2cm in front of
portion of chest (ii) contusion 3x1cm on left leg below the knee (iii) one
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contusion 2x2cm on elbow of right hand (iv) one contusion 3x1cm on elbow of
left hand (v) one contusion 2x2cm on wrist of left hand. The doctor has further
elucidated in para no.2 that on the basis of medical report, there was a fracture
on 6th and 7th ribs of the injured. This case is well supported by Investigating
Officer, B.L. Dadaguru (PW-6) regarding the spot map and seizure of bamboo
stick and the statements of witnesses. No suggestions were advanced regarding
the omissions and contradictions to this witness who is investigating officer of
the case.
8. In terms of the contention regarding disbelieving the prosecution case
on the basis of frivolous grounds, the view of Hon'ble Apex Court in its full
Bench decision rendered in the case of Smt. Shamima vs. State of Delhi
NCT [AIR 2018 SC 4529] is propitious to produce here:-
" Each criminal trial is but a quest for search of the truth. The
duty of a judge presiding over a criminal trial is not
merely to see that no innocent person is punished, but also to see
that a guilty person does not escape. One is as
important as the other. Both are public duties which the
Judge has to perform. The trail court had erred and
misappreciated the evidence to arrive at an erroneous
conclusion."
9. So far as the power of appellate Court is concerned, it is well settled
that the Court of appeal has vide powers of appreciation of evidence in order to
acquittal and in order to conviction, alongwith rider of presumption of
innocence which continues across all stages in criminal jurisprudence. On this
aspect, Hon'ble Supreme Court in Rao Shahab @ Rao Sahab Gowda etc.
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Vs. State of Karnataka [2023 Law Suit SC 242] reffereing its earlier
judgments passed in the case of Guru Dutt Pathak vs. State of U.P. [2021
(6) SCC 116], and Geeta Devi vs. State of U.P. [2022 SCC Online 57],
has endorsed the principle that the High Court being the first appellate Court
must discuss/ re-appreciate the evidence on record.
10. In view of the aforesaid propositions and foregoing discussion in its
entirety, this Court is of the considered opinion that the prosecution has proved
its case beyond the reasonable doubt that the respondents are liable to be
convicted under Section 325/34 of IPC.
11 . So far as the charges under Section 294 and 506 of IPC are
concerned, there is nothing on record to show that the respondents have
abused any one in obscene language or threaten to anyone. In this way, the
offences under Section 294 and 506(II) of IPC are not evinced by the
prosecution. Learned counsel for the State has also not stressed regarding these
offences. Hence, the respondents are acquitted from the aforesaid charges and
the finding of learned trial Court in this regard is hereby affirmed.
12. Now, turning to the point of punishment, the said offence occurred in
the year 2016 i.e. seven years ago. In these circumstances, nothing can be
gained by sending them into jail in order to impart justice. Since, Section 325 of
IPC provides both type of sentence (imprisonment and fine) and the word
"and" is used in between, then the punishment of till rising of the Court is
indispensable in this case. Therefore, in the facts and circumstances of the
case, the punishment of fine alongwith TRC would be sufficient to subserve the
interest of justice.
13. Hence, the finding of the learned trial Court acquitting the
respondents under Section 325 of IPC, is found perverse and the same is
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Signing time: 7/14/2023
6:32:15 PM
hereby set aside accordingly. In the result, the respondents are convicted under
Section 325 of IPC and they are awarded sentence of till the rising of the Court
(TRC) alongwith fine of Rs.5000/- each within a period of one month from
today. In case of failure to deposit the fine amount, the respondents shall further
undergo for 3-3 months S.I. each.
14. The fine amount, if recovered, out of that Rs.5000/- be paid to
injured Kalu (PW-1). It is also directed that when the respondents shall appear
for depositing the fine amount, they would be sentenced till rising of the Court
by the learned trial Court.
15. With the aforesaid, the Criminal appeal against acquittal stands partly
allowed and disposed off.
16. Let the record alongwith the copy of judgment be sent back to the
concerned trial Court for necessary compliance, as above.
C.C.as per rules.
(PREM NARAYAN SINGH)
JUDGE
amit
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 7/14/2023
6:32:15 PM
