Madhya Pradesh High Court
Bablu @ Suresh Soni vs The State Of Madhya Pradesh on 29 February, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No. 1675 OF 2008
BETWEEN:-
1. BABLU @ SURESH SONI S/O S/O
CHANDRA BHAN SUNAAR, AGED
ABOUT 35 YEARS, GIPITOLA
NEWARGAON PS BARASEONI
DISTT BALAGHAT (MADHYA
PRADESH)
2. RAJU @ JAIPRAKASH PATELS./O
DHAN SINGH PAWAR, AGED
ABOUT 19 YEARS, R/O MURJHAD
FARM,P.S.BARASEONI TAH.AND
DISTT.BALAGHAT (MADHYA
PRADESH)
.....APPELLANTS
(NONE FOR APPELLANTS)
AND
THE STATE OF M.P.
.....RESPONDENT
( BY MS.SMITA KEHRI - PANEL LAWYER FOR
THE RESPONDENT/STATE)
----------------------------------------------------------------------------------------------------------
RESERVED ON : 01-02-2024
PRONOUNCED ON : 29.02.2024
_______________________________________________________________
This appeal having been heard and reserved for order, coming on for
pronouncement on this day, the court passed the following :
Signature Not Verified
Signed by: SARSWATI
MEHRA
Signing time: 3/4/2024
5:34:13 PM
2
JUDGEMENT
Appellants have preferred this criminal appeal under Section 374(2) of
Code of Criminal Procedure, 1973, challenging judgment dated 28.07.2008
passed by Special Judge (Atrocities), Balaghat, District Balaghat (M.P.) in
S.T.No.26/2008 whereby appellants have been convicted under Section 3(1)(10)
SC/ST (Prevention of Atrocities) Act and sentenced to undergo R.I. for 6
months and with fine of Rs.500/- and Section 294 of IPC and sentenced to
undergo R.I. for one month and Section 323/34 of IPC and R.I. for three months
(for both the appellants), with default stipulation.
2. Prosecution story in brief is that:
"2- vfHk;kstu dgkuh dk lkjka'k ;g gS fd fnå 2-4-2008 dks yxHkx jkf=
8-30 cts çkFkhZ uhrw cksjdj ¼v-lk- 3½] Nk;k cksjdj ¼v-lk- 2½ ,oa Jhefr
c"kkZ iVys ¼v-lk- 1½ l.Mkl ds fy;s eqj>M+ QkeZ ds ikl jksM ds fdukjs
cSBh gqbZ Fkh] mlh le; nksuksa vkjksihx.k ogka ls fudys] v'yh xkfy;k fy;k
vkSj tku ls ekjus dh /kedh nsrsa gq;s dgk fd ;gk ysfVªu djus ds fy;s
D;ks vkrs gksA Jhefr o"khZ iVys us dgk fd xkfy;k D;ks nsrs gks] rks
vkjksihx.k us mls ekjus ds fy;s gkFk mBk fy;k] mlds ckn dqekjh uhrw
cksjdj us dgk fd rqeus gkFk D;ks mBk;k rks vkjksihx.k us eknjpksn egjhu
rq>s tku ls ekj Mkysaxs] dgrs gq;s dqekjh uhrw cksjdj ds lkFk gkFk ls
ekjihV dhA mifLFkr xokg izn;wu us chp cpko fd;kA rks vkjksih x.k us
mlds lkFk Hkh gkFkkeqDdh dh] mlds ckn vkjksihx.k ogka ls pys x;sA çkFkhZ
uhrw cskjdj us Fkkuk okjk flouh esa ?kVuk dh fjiksVZ ntZ djkbZA mldk
M‚DVjh eqykfgtk djk;k x;kA vuqla/kku iw.kZ dj vfHk;ksxi= U;k;ky; esa
is'k fd;k x;k tks dfeV gksus ds ckn fopkj.k gsrq br U;k;ky; dks çkIr
gqvkA
3. Learned counsel for the respondent/State has submitted that prosecution
has proved its case by leading cogent evidence & has proved guilt of the
appellant beyond reasonable doubt & there are no grounds to interfere with the
same.
4. I have heard learned counsel for the state & have perused/examined
record of trial Court & grounds taken by the appellant/accused in the appeal
memo minutely & carefully.
5. So far as conviction of appellants under Section 323/34 is concerned,
complainant/ injured Ku.Neetu Borkar(PW-3) has deposed in her examination-in-
chief as under:
"1- eS egkj vuqlwfpr tutkfr dh gwaA vkjksih ccyw mQZ lqjs'k lqukj
tkfr dk rFkk vkjksih jktw mQZ t;izdk'k iaokj tkfr dk gSA
2- fnukad 2&4&08 dks jkf= 7&8%00 cts dk le; FkkA eSa] esjh cgu
Nk;k vkSj esjh ekeh o"kkZ ds lkFk rqekMh jksM ij ySfVaªx djus ds fy, ge
yks x;s FksA ml le; vkjksih jktw mQZ t;izdk'k viuh lk;dy dh
nqdku ij FkkA mlh le; vkjksih ccyw viuh nqdku can djds vk jgk
FkkA vkjksih t;izdk'k iVys us fpYyk;k fd eknjpksn ;gka ySfVaªx ds
fy, cSBrh gksA rqEgkjs cki dh jksM gS D;k rks esjh ekeh us dgk fd ,slk
D;ksa cksyrs gksA mlds ckn vkjksih t;izdk'k esjh ekeh ds ikl vk;k vkSj
gkFk mBk fn;kA mlds ckn eSus dgk fd rqus esjh ekeh ds Åij gkFk D;ksa
mBk;kA rks vkjksih t;izdk'k us eq>ls dgk fd eknjpksn] rw chp esa D;ksa
vkbZ gSA dgdj mlus eq>s gkFk ls ekjk vkSj cky [khap fn;sA vkjksih
ckcwyky us eq>s dku ds ikl pkaVk ekjkA
3- eSa egkj tkfr dh gwaA vkjksihx.k cksys fd egkfju] eknjpksn rw ;gka
ySfVaªx ds fy, cSBrh gksA ;g lqudj cqjk yxkA
4- izn;qEu esJke us chp&cpko fd;k Fkk rks vkjksihx.kksa us Hkh mlds
lkFk ekjihV dhA
5- eSaus Fkkuk okjkflouh esa ?kVuk dh fjiksVZ dh FkhA tks iz-ih- 02 gS ftl
ij v ls v Hkkx ij esjs gLrk{kj gSaA iqfyl ?kVuk LFky ij vkbZ FkhA
ekSdk uD'kk iz-ih- 3 ij v ls v Hkkx ij esjs gLrk{kj gSaA esjk MkDVjh
eqykfgtk gqvk FkkA esjk tkfr izek.k i= tIr fd;k x;k Fkk tks iz-ih- 4
gSA"
6. Perusal of Ku.Neetu Borkar's deposition reveal that she has been
extensively cross-examined but nothing has come out in her cross-
examination, so as to make her deposition unreliable. Further, her testimony
stands corroborated from depositions of Varsha Patel (PW/1), Chhaya Borkar,
Prabhudhan and Ganesh.
7. Further, perusal of FIR (Ex.P/2) reveals that it has been lodged on the
date of incident itself by complainant Ku.Neetu Borkar and above FIR also
corroborates testimony of Ku.Neetu Borkar. Deposition of Dr.Manoj Pandey
and Dr. S.R.Bopche and MLC (Exhibit P/5), Exhibit P/6 and Exhibit P/7
reveals that above witnesses have examined injured and prepared above MLC.
Thus, medical evidence also corroborates testimony of complainant Neetu
Borkar.
8. It is correct that appellants have examined Domajhi and Anand Ramtake
in defence but from deposition, it does not appear that incident as alleged by
Ku.Neetu Borkar did not occurr at alleged date, time and place.
9. Further, Hon'ble apex Court in State of West Bengal Vs. Kailash
Chandra Pandey, (2014) 12 SCC 29, has observed in para 13 that it is
needless to reiterate that appellate court should be slow in reappreciating the
evidence. This court time & again has emphasized that the trial Court has the
occasion to sese the demeanour of the witnesses & it is in a better position to
appreciate it, the appellate Court should not lightly brush aside the
appreciation done by the trial Court except for cogent reasons.
10. Hence, in view of discussion in the foregoing paras & after going
through the evidence on record & having evaluated/appreciated the same, in
this Court's considered opinion, learned trial Court has appropriately
appreciated the overall evidence on record & has drawn correct conclusions &
there is no illegality or perversity in the findings of learned trial court
concerning appellants/accuseds' conviction for above offence/offences
Therefore, grounds taken by the appellants in appeal memo with respect to
conviction are not acceptable & hence, rejected. Hence, learned trial Court's
findings & judgment with respect to appellant/accuseds' conviction for
offence/ under Section 323/34 of IPC is hereby affirmed.
11. So far as appellant's conviction under Section 3(1)(10) of SC/ST Act is
concerned, in FIR (Exhibit P/2), which has been lodged immediately after
incident, there is no mention that complainant was abused by the name of
caste. Further, caste certificate issued by competent authority is not on record.
There is on record caste certificate (Exhibit P/4) and it has been issued by
Sarpanch. In view of above, appellants cannot be convicted under Section 3(1)
(x) of SC/ST Act.
12. So far as appellant's conviction under Section 294 of IPC is concerned,
perusal of deposition of all prosecution witnesses including complainant and
perusal of FIR (Exhibit P/2) reveal that it is alleged that appellant hurled
"eknjpksn".""
13. In view of law laid down by M.P. of State Vs. Arvind Kumar, 1967
JLJ, S N 10, Vishnu Prasad Vs. M.P. of State, 1971 JLJ, S N 148, Ganpat
Vs. State of M.P., 1966 MPLJ, Note 29 and Sharad Dave Vs. Mahesh Gupta,
2005(2), it cannot be said that above abuse comes within the purview of
obscene utterance as mentioned in Section 294 of IPC. Hence, appellant
cannot be convicted under Section 294 of IPC.
14. In view of above appellants are acquitted from charges under Section
294 of IPC and 3(1)(10) of SC/ST Act.
15. So far as appellant's sentenced under Section 323/34 of IPC is
concerned, trial court has sentenced appellants under Section 323/34 of IPC
with R.I. for three month.
16. In view of nature of injury etc., ends of justice would be served, if
appellants are sentenced with fine only and sentence of imprisonment is set
aside.
17. In view of above, appeal filed by the appellants is partly allowed.
Appellants are sentenced under Section 323/34 of IPC with fine of Rs.1000/-
each and in default 15 days simple imprisonment.
18. The appellants are directed to deposit the aforesaid amount within three
months failing which he shall surrender before the trial Court to undergo
remaining sentence of imprisonment imposed by trial Court. Fine amount, if
any already deposited, shall be adjusted against the enhanced fine amount.
After realization of fine amount, Rs.1000/- be give to injured Ku.Neetu Borkar
as compensation.
19. In view of discussion in the foregoing paras, appeal filed by the
appellant is partly allowed to the extent as indicated hereinabove.
20. It is made clear that period fixed for compliance of modified sentence as
above, would start running after accused is summoned by the trial Court to
serve the sentence & from the date when presence of accused is secured,
21. Present appeal is disposed of accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
sm
