Madhya Pradesh High Court
Bhagwan Das vs The State Of M.P. on 12 October, 2023
Author: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 12 th OF OCTOBER, 2023
CRIMINAL APPEAL No. 1070 of 2004
BETWEEN:-
BHAGWAN DAS S/O SATAI GOTIYA AGED ABOUT 36
YEARS, R/O MADHAIYA, UMARIYA - PAN, TEHSIL
SEHORA, DISTRICT JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY MS. CHHOTI KUSHRAM - PROXY COUNSEL ON BEHALF OF MS.
SILVIYA KHAN - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH (MADHYA
PRADESH)
.....RESPONDENT
(BY MS. SHANTI TIWARI - PANEL LAWYER)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This appeal has been filed under Section 374(2) of the Cr.P.C. against
the judgment of conviction dated 18/06/2004 passed by Additional Sessions
Judge, Sehora, District Jabalpur in S.T. No.159/2004, whereby learned
Additional Sessions Judge found the appellant guilty for the offence punishable
under Section 323 of the IPC and directed to suffer R.I. for one years with fine
of Rs.500/- with default stipulation.
2. Brief facts of the case are that on 15/01/2004 at about 09:00 P.M.
when complainant Dhipali (AW-1) was at his home alongwith his wife Ramkali
Signature Not Verified
Bai (AW-2), at that time appellant armed with stick came there and abused him
Signed by: ANURAG SONI
Signing time: 13-10-2023
11:27:04
in filthy language. When complainant objected, appellant assaulted him by stick
on his head in intent to kill him, due to which he sustained injury on his head.
When wife of the complainant came to rescue the complainant, appellant also
assaulted her by stick on her hand. On the report of complainant, police
registered Crime No.9/2004 for the offence punishable under Sections 294, 307
of IPC and investigated the matter. After investigation, police filed charge-sheet
against the appellant for the offence punishable under Sections 294, 307 of IPC
before JMFC, who committed the case to the Court of Session. On that charge
sheet, ST No.159/2004 was registered.
3. Learned Additional Sessions Judge framed charge against the appellant
for the offence punishable under Section 307, 323 of IPC and tried the case.
The appellant abjured his guilt and took the defence that he is innocent and has
been falsely implicated in the crime. However after the trial learned ASJ
acquitted the applicant from the charge punishable under Section 307 of the
IPC, but found him guilty for the offence punishable under Section 323 of the
IPC and sentenced him as aforesaid. Being aggrieved by the impugned
judgment appellant preferred this appeal.
4. Although, apart from the quantum of sentence appellant in this
appeal has also challenged the legality of the conviction, but during course of
the arguments learned counsel for the appellant submitted that she does not
want to press this appeal on the finding of conviction.
5. Otherwise also from the evidence produced by the prosecution,
finding of conviction of the trial Court under Section 323 of IPC appears to be
correct. So the findings of the conviction of the trial Court is affirmed.
6. On the point of sentence, learned counsel for the appellant submitted
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 13-10-2023
11:27:04
that appellant/accused is first offender. It is submitted that the appellant was on
bail during trial and he never misused the liberty granted to him. Learned
counsel further submitted that earlier Coordinate Bench of this Court suspended
the jail sentence of appellant and released him on bail vide order dated
01/07/2004, but thereafter the appellant could not mark his presence before the
Court on the date fixed for his appearance, therefore, this Court vide order
dated 23/06/2023 issued arrest warrant against him. In compliance of arrest
warrant, police arrested the appellant on 12/07/2023 and since then the appellant
is in judicial custody. Further, the appellant has no criminal past, nor was he
involved in any unlawful activities subsequent to this incident. So he be released
on sentence already undergone.
7. Certainly, the pre and past incidents, conduct of the appellant, cannot
be lost sight of and can be taken as mitigating circumstances. The applicant has
no criminal past. So looking to the facts and circumstances of the case and as
to the fact that the appellant is in jail since 12/07/2023 and earlier also during trial
of the case the appellant remained in custody since 18/01/04 to 17/02/2004, he
is facing trial since year 2004, the substantive jail sentence of imprisonment is
reduced to the period already undergone by the appellant, however the amount
of fine as imposed by the trial Court shall remain same.
8. The applicant is in custody, so he be released forthwith, if he is not
required in any other crime.
9. The impugned judgment of the trial Court is modified accordingly.
10. Hence, this appeal is partly allowed in the terms indicated above.
11. Record of the Court below be sent back alongwith copy of this order
for information and necessary compliance.
Certified copy as per rules.
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 13-10-2023
11:27:04
(ROOPESH CHANDRA VARSHNEY)
JUDGE
as
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 13-10-2023
11:27:04
