Rajkumari vs The State Of Madhya Pradesh
2023 Latest Caselaw 14536 MP

                                             1
        IN THE HIGH COURT OF MADHYA PRADESH
                   AT G WA L I O R
                                       BEFORE
        HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR


                   CRIMINAL REVISION No. 3156 of 2022

BETWEEN:-
RAJKUMARI W/O LATE BANBALI LODHI, AGED ABOUT 47
YEARS, R/O LANCH ROAD INDERGARH DISTRICT DATIA
(MADHYA PRADESH)
                                                                      .....PETITIONER
(SHRI PRATIP VISORIYA - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION THROUGH AARAKSHI KENDRA INDERGARH
DISTRICT DATIA (MADHYA PRADESH)
                                                                    .....RESPONDENT
(SHRI SUSHANT TIWARI - PUBLIC PROSECUTOR)
-------------------------------------------------------------------------------------------
               Reserved on                    :      16.08.2023
               Pronounced on                  :       05.09.2023
-------------------------------------------------------------------------------------------
       This petition having been heard and reserved for order, coming on
for pronouncement this day, Justice Sanjeev S. Kalgaonkar pronounced
the following:
                                        ORDER

This criminal revision under Section 397/401 of CrPC is filed

assailing the judgment dated 05.07.2022 passed by Second Additional

Sessions Judge, Datia in Criminal Appeal No.26/2019, whereby the

judgment of conviction and sentence dated 04.04.2019 passed by Shri

Lavkesh Singh, Judicial Magistrate First Class, Seondha in Criminal Case

No.200/2010 was partly confirmed and revision petitioner was convicted for

offence punishable under Section 323/34 of IPC and sentenced to fine

Rs.500/- and for offence punishable under Section 325/34 of IPC and

sentenced to imprisonment till rising of the Court and fine of Rs.1,000/-

with default stipulations.

For the sake of convenience, hereinafter, revision-petitioner

Rajkumari will be addressed as accused.

The exposition of facts giving rise to this revision-petition is as

under:-

1. On 01.05.2010 around 1 O'clock in noon, Ramswaroop Tripathi resident of

Ward No.12, Indargarh passed through the heap of sand, collected near the

door of his house. Revision-petitioner Rajkumari objected and asked why

he is passing through the heap of sand. Rawswaroop told Rajkumari to

remove the sand from the front of his door. An altercation ensued between

them. Rajkumari assaulted Ramswarrop with a piece of stone which hit

Ramswaroop on his head.

2. Arti and Ashutosh intervened. Nutan assaulted Arti with piece of stone on

her head. Rajkumari, Ranjit and Nutan assaulted Ashutosh by throwing

stones at him. Arti and Ashutosh also got injured. Akhilesh and Ram Niwas

intervened and pacified the quarrel. Rajkumari, Ranjit and Nutan

threatened to kill them.

3. Ramswaroop lodged FIR at Police Station - Indargarh on 01.05.2010 at

about 2:00 PM. The Police Station - Indargarh registered FIR in Crime No.

65/2010 for offences punishable under Sections 341, 294, 323, 336, 325,

506-B and 34 of IPC. Ramswaroop, Ashutosh and Arit were forwarded for

medico legal examination. Statement of witnesses were recorded under

Section 161 of Cr.P.C. After arrest of accused and relevant seizure, charge-

sheet was filed under Section 173 of Cr.P.C. before the Court of JMFC,

Seondha, District- Datia.

4. Learned trial Court after trial convicted Rajkumari, Ranjit and Nutan

for offences punishable under Section 323/34 (2-counts) of IPC and

Section 325/34 of IPC and sentenced each of them as under:-

Conviction u/s Sentence Fine (Rupees) Imprisonment (in default of fine) 323/34 of IPC (two RI for 3 Months for ----------

counts)            each count
325/34 of IPC       RI for 1 Year        500/-               One month

Feeling aggrieved by the judgment of conviction and order of

sentence, CRA No.26/2019 was filed by Rajkumari and Nutan @ Deepti

before Sessions Court. Learned Second Additional Sessions Judge, Seondha

District- Datia vide impugned judgment dated 05.07.2022 in CRA

No.26/2019 partly allowed the appeal and acquitted appellant-Nutan @

Deepti for the offence punishable under Section 323/34 (two counts) of IPC

and Section 325/34 of IPC. Learned Appellate Court affirmed the conviction

of accused Rajkumari, but amended the sentence to the effect that

Rajkumari was sentenced, for offence punishable under Section 323/34 (one

count) to fine of Rs.500/- and for offence punishable under Section 325/34

of IPC, to imprisonment till rising of the Court and fine of Rs.1,000/-.

The judgment of First Appellate Court is assailed in instant criminal

revision mainly on the ground that the prosecution as projected in the Court

statement of witness is totally different from FIR and the statement recorded

under Section 161 of CrPC. The petitioner is a woman and first offender,

therefore, she was entitled to benefit of Probation of Offender Act. On the

basis of same set of evidence, other accused have been acquitted. The

prosecution had failed to prove its case beyond reasonable doubt. The

judgment is passed without due appreciation of facts and law. Learned First

Appellate Court committed an error in convicting petitioner - Rajkumari,

therefore, impugned judgment dated 05.07.2022 passed in Criminal Appeal

No.26/2019 may be set-aside.

Learned counsel for the petitioner submits that it was contended

before the Appellate Court that appellant- Rajkumari has lodged a report at

Police Station - Indargarh against complainant Ramswaroop, Ashutosh and

Arti, whereupon, Cross Case No.102/2010 was registered under Section 323

r/w Section 34 of IPC. Learned Trial Court has not considered the fact that

complainant party were the aggressor and caused injury to the appellant -

Rajkumari and her son Ranjit. Learned Trial Court did not consider the fact

that Ashutosh had stated that he had received injury on his right hand,

whereas, the X-Ray report relate to left Ulna bone. Learned Trial Court

committed an error in convicting the appellant for causing grievous hurt

without considering the inconsistency in the ocular and medical evidence.

Learned counsel for the petitioner contends that none of the contentions

raised as ground of appeal were considered by learned Appellate Court.

Per contra, learned counsel for the State submitted that the Appellate

Court has considered all aspects of matter and given appropriate reasoning

in the impugned judgment, therefore, in absence of any patent illegality, the

concurrent finding of conviction and sentence by learned Trial Court and the

First Appellate Court cannot be interfered with.

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

Under Section 397 of the Cr.P.C, the Court is vested with the power to

call for and examine the record of any inferior Court for the purpose of

satisfying itself as to correctness, propriety and regularity of any

proceedings or order made in a case. The object of this provision is to

correct the patent defect or an error of jurisdiction or the perversity which

has crept in the proceedings.

The learned First Appellate Court acquitted appellant - Nutan @

Deepti of the offence punishable under Section 323/34 (2 counts) of IPC

and Section 325/34 of IPC. But, on same set of evidence, convicted and

sentenced petitioner- Rajkumari as aforesaid. Learned First Appellate Court

had convicted Rajkumari for offence punishable under Section 323/34 (one

count) of IPC whereas she was convicted by the trial Court for offence

punishable under Section 323/34 (two counts) of IPC with regard to injuries

caused to Arti and Ramswaroop. No reason is assigned for altering the

finding of conviction from Section 323/34 (two counts) of IPC to Section

323/34 (one count).

Ashutosh PW-6 had stated in Para 11 that Rajkumari and her daughter

Nutan had assaulted him with piece of stone (gumma). He got injury on

head, leg and right hand. The Radiology Expert's report shows fracture on

Ulna bone of left hand of Ashutosh. Despite specific contention, learned

Appellate Court did not consider inconsistency between the ocular and

medical report. All the injured witness have specifically stated presence and

overt act of Nutan @ Deepti. Yet, Co-appellant Nutan@ Deepti was

acquitted.

In such a scenario, the First Appellate Court has not clarified as to

with whom Rajkumari has made common intention in furtherance of which

grievous hurt was caused. Learned Appellate Court amended the finding of

conviction without assigning any reasons.

In paras 13, 15 and 17 of the judgment, learned Appellate Court, gave

following observation and reached to the conclusion as under:-

13- ¼vlk 01½ jkeLo:i Lo;a vkgr Qfj;knh gSA mDr lk{kh }kjk lk{; esa crk;k gS fd ?kVuk ds le; mlds yM+ds vk'kqrks"k dks vkjksih jktdqekjh }kjk vius ikl cqyk;k vkSj mls /kDdk nsdj iVd fn;kA og ekSds ij igqapk rks mls Hkh /kDdk nsdj iVd fn;k rFkk vkjksfi;k jktdqekjh }kjk mls flj o iSj esa xqEes ekjdj pksV igqapkbZ FkhA lk{kh us in dzekad 2 esa crk;k gS fd ?kVuk ds le; rhu vkjksih Fks ftuesa jathr] jktdqekjh o uwru Fks] ijarq mDr vkjksihx.k }kjk vkjksih jktdqekjh dk D;k lg;ksx fd;k ;k vkjksfi;ka vkjrh }kjk mDr ?kVuk esa jktdqekjh dk D;k lg;ksx fd;k] lk{; esa ugha crk;k gSA blhfy, mDr lk{kh dh lk{; esa ;g fo'oluh;rk gS fd ?kVuk ds le; vkjksfi;ka jktdqekjh }kjk mlds

yM+ds vk'kqrks"k dks /kDdk nsdj fxjk;k o bZV ds xqEes ekjdj mlds flj o iSj esa pksV igqapkbZA

15- ¼vlk 06½ vk'kqrks"k vkgr lk{kh gSA mDr lk{kh dk dFku gS fd vkjksfi;ka xqM~Mh ¼jktdqekjh½ ,oa mldh yM+dh uwru us mls xqEek ekjk Fkk ftlls mls ?kqVus esa pksV vk;h Fkh rFkk gkFk QzsDpj gks x;k FkkA lk{kh dk ;g Hkh dFku gS fd mlds firk dks flj esa pksV vk;h FkhA

17- vfHk;kstu dgkuh vuqlkj ?kVuk ds vkgr lk{kh ¼vlk 01½ jkeLo:i gSA mDr lk{kh dh ;g fo'oluh; lk{; ugha gS fd ?kVuk ds le; vkjksfi;ka uwru us xqEes ekjdj mls o mlds yMds vk'kqrks"k dks migfr dkfjr dh FkhA mDr lk{kh dh ;g Hkh fo'oluh; lk{; ugha gS fd mDr vkjksfi;ka }kjk lg vkjksfi;ka viuh eka jktdqekjh dk mDr ?kVuk esa D;k lfdz; lg;ksx fd;kA ¼vlk 04½ vkjrh dks ?kVuk esa vkjksihx.k }kjk mls migfr dkfjr fd, tkus ds laca/k esa fo'oluh; lk{; ugha ikbZ xbZA tgka rd ¼vlk 06½ vkgr vk'kqrks"k dk iz'u gS fd ?kVuk ds le; vkjksfi;ka uwru us Hkh xqEek ekjs Fks tks xqEek mlds firk ds flj ij yxk Fkk] ijarq mDr ds laca/k esa Lo;a ¼vlk 01½ jkeLo:i dFku esa crkrk gS fd vkjksfi;k jktdqekjh }kjk xqEek ekjdj mlds flj o iSj esa pksV igqapkbZ FkhA mDr lk{kh dFku esa ;g ugha crkrk gS fd vkjksfi;ka uwru us mls xqEek ekjdj migfr dkfjr dh FkhA ?kVuk dk Lora= lk{kh ¼vlk 03½ jkefuokl }kjk Hkh eq[;ijh{k.k esa vkjksfi;ka jktdqekjh }kjk xqEek ekjdj vkgr jkeLo:i ,oa vk'kqrks"k dks migfr dkfjr djuk crk;k gSA blfy, fo}ku fopkj.k U;k;ky; ds le{k ;g fo'oluh; lk{; ugha Fkh fd vkjksfi;ka uwru }kjk ?kVuk ds le; vkgr jkeLo:i ,oa vkgr vk'kqrks"k dks xqEek ekjdj migfr dkfjr dh FkhA ;g Hkh fo'oluh; lk{; ugha Fkh fd vkjksfi;ka uwru }kjk viuh eka dks mDr ?kVuk dkfjr fd, tkus esa dksbZ lfdz; lg;ksx fd;k FkkA ................

No reason is assigned for disbelieving the evidence of injured

witness. It goes to show that the finding of learned First Appellate Court is

perverse. Further, the appreciation of evidence on record is against the

settled principles of appreciation of evidence. The judgment of Appellate

Court is devoid of appropriate reasoning .

Learned Appellate Court, in Para 4 and 5 of the Appellate judgment,

mentioned the exceptions taken by the appellants and grounds of appeal but

none of the contention raised by the appellants has been considered and

discussed in the Appellate judgment. Therefore, the Appellate judgment

being absurd is no judgment in the eye of law.

The impugned Appellate judgment suffers from patent illegality and

impropriety, therefore, deserves to be set-aside in exercise of revisional

jurisdiction of this Court.

Consequently, this revision-petition is allowed and impugned

judgment dated 05.07.2022 passed by Second Additional Sessions Judge,

Seondha, District Datia in CRA No.26/2019 is set aside.

The matter is remitted to the Court of Second Additional Sessions

Judge, Seondha, District- Datia to hear the parties and pass the judgment

afresh on consideration of all the contentions raised in the appeal.

The revision-petition is disposed off accordingly.

(SANJEEV S KALGAONKAR) JUDGE vijay VIJAY Digitally signed by VIJAY TRIPATHI DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH

TRIPA GWALIOR, 2.5.4.20=663cb09dd950bfc3ea7ed 4f02d97ddae5364f1d4b042dbc59 921b76e812d2d6b, postalCode=474001, st=Madhya Pradesh,

THI serialNumber=58392D8C4E7C969 3BFEEB5B46B3CA006F1127E89008 952BBEC528CE4D82551BD, cn=VIJAY TRIPATHI Date: 2023.09.05 13:54:08 +05'30'