Bablu @ Shiv Shankar vs The State Of M.P.
2023 Latest Caselaw 7719 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                 ON THE 11 th OF MAY, 2023
                                            CRIMINAL APPEAL No. 367 of 2005

                          BETWEEN:-
                          BABLU @ SHIV SHANKAR S/O VIRENDRA SINGH
                          LODHI, AGED ABOUT 22 YEARS, RESIDENT OF
                          VILLAGE CHHAPRA P.S. ISAGARH, DISTRICT ASHOK
                          NAGAR (MADHYA PRADESH)

                                                                                      .....APPELLANT
                          (SHRI ARUN BARUA- LEARNED COUNSEL FOR THE APPELLANT )

                          AND
                          THE STATE OF M.P. THROUGH POLICE STATION
                          ISAGARH   DISTRICT ASHOK NAGAR (MADHYA
                          PRADESH)

                                                                                    .....RESPONDENT
                          (SHRI SUSHANT TIWARI- LEARNED COUNSEL FOR THE RESPONDENT-
                          STATE)

                                This appeal coming on for HEARING this day, th e court passed the
                          following:
                                                          JUDGMENT

T he present criminal appeal u/S 374 of CrPC has been preferred by appellant challenging judgment of conviction and order of sentence dated 09- 06-2005 passed by Second Additional Sessions Judge, Ashok Nagar/Guna in Sessions Trial No.58 of 2005, whereby appellant has been convicted under Section 307 of IPC and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1 lac, in default of payment of fine amount he shall have to undergo five years additional rigorous imprisonment.

2. According to prosecution case, on 20-11-2004 Aneeta (PW5) was Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 5/12/2023 5:37:19 PM

returning along with her mother Ramkunwar and Kamlesh to her home after cutting grass in agricultural field and on the way, she met appellant who was armed with an axe and told her as to why she hurled abuses him. On that, Aneeta told him as to why he is teasing her. Thereafter, appellant inflicted three axe blows out of which one blow hit on her right hand, another blow hit on her left hand and third blow hit on her chest due to which she fell down on ground. Thereafter, she was brought to PS Ishagarh where FIR was lodged. Injured Aneeta (PW5) was medically examined. Police investigated matter. After completion of investigation and other formalities, charge sheet was filed before competent Court from where case was committed to the Sessions Court for its

trial. After recording evidence of witnesses, the trial Court after conclusion of trial convicted appellant and sentenced him accordingly as mentioned above.

3. It is submitted by counsel for the appellant that learned trial Court has not properly evaluated evidence of prosecution witnesses and has wrongly convicted appellant under Section 307 of IPC. Although Ummed Singh (PW3) is alleged to be eye-witness of the incident but complainant-injured Aneeta (PW5) has not mentioned his name in First Information Report and his statement was recorded after six days of incident which creates a serious doubt about his presence at the time of incident. Similarly, Kamlesh (PW4) remained silent about his presence in the incident although his statement was also recorded after six days of incident. Own statement of injured- complainant Aneeta (PW5) was also recorded after two and a half month of incident. Statements of above witnesses have been recorded by police with delay and no explanation has been given for delay. It is further contended that as per allegation of injured- Aneeta, the appellant had caused three axe blows on her

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 5/12/2023 5:37:19 PM

out of which two are cut wounds on her arms and there is a blue mark on her chest which clearly shows that the third injury on her chest is not caused by an axe and it is not enough to create dangerous to her life and the injury on her chest is simple in nature.

4. In the alternative, counsel for the appellant submitted that he does not want to challenge conviction of appellant under Section 326 of IPC. As regards sentence, it is submitted that incident took place on 20-11-2004 and appellant has been facing agony of trial for near about more than 18 years. During trial and in appeal appellant was sometime in custody, total 15 months he has served jail incarceration. Therefore, by awarding a fine amount suitably for offence u/S 326 IPC, the remaining substantive jail sentence of the appellant may be reduced to the period already undergone by him.

5. Learned counsel for State supported the impugned judgment and prayed for dismissal of this appeal.

6. Heard learned counsel for the parties and perused the record.

7. Dr.SS Chhari (PW7) in his evidence deposed that on 20-11-2004 the injured Aneeta (PW5) was medically examined by him and he found three injuries over the body of the injured. Injury no.1 is incised and sharp cutting wound with blood clots in open wound which is deep-seated on right mid interior-medial to arm size 15x2 deep to muscles. Injury no.2 is incised and

sharp cutting wound with blood cutting on left lateral to upper part of arm size 5x 2xdeep to muscles. Injury no. 3 is abrasions and contusions on right sided breast just near to right lateral to nipple of breast size 3x1/2 cm. According to opinion of Dr. Chhari, the injuries can be decided after X-ray. Injury no.3 is simple in nature and injury no.1 and 2 are incised and sharp types and and injury no.3 is caused by hard and blunt object. Report is Ex.P7. Dr. SS Chhari (PW7) Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 5/12/2023 5:37:19 PM

in his cross-examination deposed that if tractor is fixed with sharp objects, then it may be possible to get hurt by falling on it and further deposed that before him, no blood-stained clothes were produced but he had only medically examined injured.After conduction of X-ray of both right and left arms of injured, it was found by Radiologist Dr. Sitaram Raghuvanshi (PW6) that there was only one fracture of left humerus bone. X-ray report is Ex.P6.

8. Looking to the facts and circumstances of the case as well as looking to the third injury sustained by injured Aneeta (PW5) on her chest which appears to be simple in nature, it is apparent that offence falls within ambit of Section 326 in stead of Section 307 of IPC. So far as sentence part is concerned, the incident took place on 20-11-2004 and appellant has been facing agony of trial for near about more than 18 years, during trial and in appeal appellant was sometime in custody total 15 months he has served jail incarceration, therefore, the ends of justice would meet it by awarding a fine amount of Rs.15,000/- for offence u/S 326 of IPC, remaining substantive jail sentence of appellant may be reduced to the period already undergone by him and the aforesaid fine amount be given to injured complainant Aneeta (PW5) as compensation upon adjustment of fine amount so deposited by the appellant in compliance of Court's order dated 31-03-2006.

9. With aforesaid modification, appeal stands partly allowed and disposed of.

(DEEPAK KUMAR AGARWAL) JUDGE

MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 5/12/2023 5:37:19 PM