Madhya Pradesh High Court
Narendra @ Ballu vs State Of M.P on 19 July, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 19 th OF JULY, 2023
CRIMINAL APPEAL No. 121 of 2013
BETWEEN:-
NARENDRA @ BALLU S/O BHAGWANLAL SHARMA,
AGED ABOUT 38 YEARS, RESIDENT OF WARD NO.10
BAL VIDHYA MANDIR KE PAS NARSARI KE SAMNE
SHEOPUR, DISTRICT SHEOPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI ANSHU GUPTA- LEARNED COUNSEL FOR THE APPELLANT)
AND
STATE OF M.P TH:P.S.AJK DISTRICT SHEOPUR
(MADHYA PRADESH)
.....RESPONDENT
(SHRI RAJENDRA SINGH YADAV- LEARNED COUNSEL FOR THE
RESPONDENT- STATE)
This appeal coming on for HEARING this day, th e court passed the
following:
JUDGMENT
The present criminal appeal under Section 374 of CrPC has been filed by
appellant challenging the judgment of conviction and order of sentence dated
14-02-2013 passed by learned Special Judge (Atrocities), Sheopur in Special
Case No. (SC/ST) 03/2012 whereby the appellant has been convicted under
Section 307 of IPC and sentenced to undergo four years RI with fine of
Rs.2,000/- with default stipulation.
In brief, prosecution case is that complainant Ashok (PW2) lodged a
report at Police Station AJK on 20-11-2012 at around 05:25 in the evening
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 7/20/2023
6:35:48 PM
alleging therein that appellant Narendra alias Ballu Sharma and co-accused
Surendra Sharma both are real brothers. Seven-eight days prior to the incident,
there was a dispute between them due to which both appellant and co-accused
were having inimical terms with him. At around 05:00 in the evening when he
was going to buy groceries near Pappu's hotel, appellant- accused Narendra
alias Ballu Sharma came there armed with a gadasi (cutting tool) and abused him
in filthy languages. In the meantime, appellant Narendra alias Ballu Sharma hit
Gadasi on his head with intention of killing him. When bleeding started,
Surendra Sharma said to his brother appellant Narendra alias Ballu Sharma to
kill more by abusing in filthy language. Thereafter, he was saved by Yogendra
Prasad (PW3) and Vinod Khatik (PW4). On the basis of which he got the FIR
registered vide Ex.P1. he was sent for medical examination and a lacerated
wound measuring 1x4 cm was found on the back of the head up-to the depth
of bone as per opinion of Dr. Ashok Khare (PW5) and his MLC report is
Ex.P4 and CT scan report is Ex.P10 given by Dr.Neeraj Devenda (PW7).
During investigation spot map was prepared. Statement of witnesses were
recorded. Appellant along with co-accused Surendra Sharma were arrested.
From the possession of present appellant gadasi was seized vide seizure memo
Ex.P8. Blood stained, plain earth and other articles relating to incident were
seized and same was sent to FSL. After completion of investigation and other
formalities, charge sheet was filed before the competent Court from where the
case was committed to the Special Court for its trial. After appreciating the
prosecution evidence, the learned trial Court after conclusion of trial acquitted
co-accused Surendra Sharma and convicted the present appellant and
sentenced him vide impugned judgment for offence as mentioned in para 1 of
this judgment.
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 7/20/2023
6:35:48 PM
It is contended by learned counsel for the appellant that although it is
alleged that the appellant has caused injury to injured by means of gadasa but
the injury sustained by injured Ashok was not dangerous to life and injury was
simple in nature and no fracture of any bone was found. Therefore, no offence
is made out under Section 307 of IPC against the appellant and at the most, the
appellant could have been convicted under Section 324 of IPC. Learned trial
Court has committed an error in convicting appellant for aforesaid offence. In
support of his contention, relying upon the judgment of Indore Bench of this
High Court in the matter of Adaliya and Others vs. State of MP reported in
2009 (4) MPHT 189, it is submitted by counsel for the appellant that where
there is no motive of accused, the injury sustained by injured is simple in nature,
there is no fracture of any bone, the injured immediately discharged within one
day from hospital and he is able to perform his routine work, then the accused
is liable for causing simple injury by dangerous weapon punishable under
Section 324 of IPC.
Learned counsel for the State supported the impugned judgment and
prayed for dismissal of appeal.
Heard learned counsel for the parties and perused the impugned
judgment.
Dr. Ashok Khare (PW3) in para 3 of his cross-examination deposed that
the injury can occur if a person falls on a stone in an unbalanced condition and
he had not done any X-ray but he had given it to the police for x-ray of injured
and he cannot tell whether police got X-ray done or not. He had advised X-ray
but no report of X-ray is available on record, there is a report of CT scan in
which bone fracture is not mentioned. As per evidence of Dr. Neeraj Devenda
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 7/20/2023
6:35:48 PM
(PW7) who was posted as Assistant Professor in MBS Hospital, Kota, the
injured was discharged on the next date of incident i.e. 22-11-2011.The
neurosurgeon after examining the head injury had opined that there is no need of
operation, the treatment with medicine is possible. CT scan was done by
Radiologist that there is no possibility of surgery in the brain due to head injury
and CT scan report was found normal. Looking to the injury sustained by
injured, an offence under Section 307 of IPC is not made out against present
appellant and at the most, the appellant could have been convicted under
Section 324 of IPC.
At this stage, counsel for the appellant submits that the appellant
remained in custody for a period of 38 days during trial and from the date of
passing of impugned judgment till 10-04-2013, i.e. near about three and half
months he has already served the jail incarnation. The appellant was on bail
during trial and he did not misuse the liberty so granted to him. Fine amount has
already been deposited by him. The incident took place all of sudden in 2011
and the appellant has been facing mental agony for a period of more than 11
years. Therefore, while enhancing the fine amount suitably, the jail sentence of
the appellant for offence under Section 324 of IPC be reduced to the period
already undergone by him.
Looking to the totality of the facts and circumstances of the case as well
as medical evidence available on record, the appellant could have been
convicted under Section 324 of IPC instead of offence under Section 307 of
IPC and the ends of justice would meet if while reducing the jail sentence of
appellant for offence under Section 324 of IPC to the period already undergone
by him by enhancing the fine amount to Rs.10,000/- from Rs.2,000/- as
awarded by trial Court. Accordingly, while affirming conviction of appellant
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 7/20/2023
6:35:48 PM
under Section 324 of IPC, jail sentence of the appellant is reduced to the period
already undergone by him and the fine amount is enhanced to Rs.10,000/-
which shall be deposited by him on adjustment of fine amount if earlier
deposited by the appellant before trial Court, within a period of two months
from today. The amount of fine so deposited by appellant be given to injured
Ashok (PW2) as compensation under Section 357 of Cr.P.C.
With aforesaid modification, this revision is partly allowed and stands
disposed of.
(DEEPAK KUMAR AGARWAL)
JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 7/20/2023
6:35:48 PM
