Antram & Ors. vs The State Of M.P.
2024 Latest Caselaw 6308 MP

Madhya Pradesh High Court

Antram & Ors. vs The State Of M.P. on 1 March, 2024

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                       HON'BLE SHRI JUSTICE GAJENDRA SINGH
                                            CRIMINAL APPEAL No. 2182 of 2004

                           BETWEEN:-
                           1.    ANTRAM ALIAS ANOOP, S/O             CHIDAMILAL
                                 LOHAR, AGED ABOUT 26 YEARS.

                           2.    KUTRU ALIAS BARSAN S/O CHIRONJI LOHAR,
                                 AGED ABOUT 20 YEARS, VILLAGE MALARA P.S.
                                 MAHARAJPUR (MADHYA PRADESH)

                           3.    DASHRATH S/O CHIDAMILAL LOHAR, AGED
                                 ABOUT  38   YEARS, VILLAGE MALARA P.S.
                                 MAHARAJPUR (MADHYA PRADESH)

                                                                                      .....APPELLANTS
                           (BY SHRI SANJAY SAINI - ADVOCATE FOR APPELLANTS)

                           AND
                           THE STATE OF M.P. THROUGH ADIM JATI KALYAN
                           THANA, MANDLA, DISTRICT MANDLA (MADHYA
                           PRADESH)

                                                                                     .....RESPONDENT
                           (BY SHRI K.S. PATEL - PANEL LAWYER FOR STATE)


                                 Reserved on :          22.02.2024
                                 Pronounced on :        01.03.2024

                                This Criminal Appeal having been heard on admission and reserved for
                           order, coming on for pronouncement on this day, Justice Gajendra Singh
                           pronounced the following:
                                                          JUDGMENT

T his Criminal Appeal under Section 374 (2) of the CPC has been preferred feeling aggrieved by the judgment dated 06.12.2004 in Special Case

No.61/2003 by special Judge SC and ST (POA) Act, Mandla whereby the appellants/accused person has been convicted under Section 324 read with Section 34 of the IPC for 6 months R.I. and under Section 3(1)(x) of the SC and ST (POA) Act, 1989 for 6 months R.I. and a fine of Rs.500/- with default stipulations.

2. Prosecution case in brief is that appellants/accused person do not belong to SC or ST category whereas the victim Mitthan Lal Uikey (PW-1) belongs to Gond tribe which comes under ST category in the State of M.P. On 11.06.2003 at about 7-8 PM when he was on the way to Village Malhara Bicchua, Police Station- Maharajpur, District - Mandla, the appellants/accused

persons beaten in furtherance of common intention and caused voluntary injuries by teeth bite and abused the victim with obscene words at public place and intentionally dishonored and intimidated to victim (PW-1). AJK Police recorded the complaint of Mitthanlal after receiving the medical report (Ex.P-6) and offence under Section 323, 324 read with 34 of the IPC and Section 3(1)

(x) of SC and ST (POA) Act, 1989 was registered as Crime No.17/2003 on 11.06.2003. After completing the investigation by AJK Police a final report under Section 173 (2) of the Cr.P.C. was submitted.

3. Appellants/accused persons were tried under Sections 323 & 324 read with Section 34 of IPC and Section 3 (1) (x) of the SC and ST (POA) Act, 1989.

4. Appellants/accused persons abjured guilt. Prosecution examined victim Mitthan Lal Uikey as PW-1, Gyanilal Uikey as PW-2, DSP Iqbal Azmi as PW-3, Dr. Alamdar Hussain as PW-4 and Dr. Ashok Sharma as PW-5.

5. In examination under Section 313 of Cr.P.C. also, appellants/accused denied the incidence and they examined Ashok Kumar Daheria as DW-1.

6. Appreciating the prosecution and defence evidence trial Court found proved that appellants/accused persons does not belong to SC or ST category but victim (PW-1) belongs to ST category and also found proved that they insulted the victim (PW-1) in public view by uttering the castiest word and caused voluntary injuries by teeth bite in the left cheek of the victim (PW-1) in further of the their common intention to cause voluntary injuries to victim (PW-

1).

7. Observing that offence under Section 323 is minor offence of Section 324 of IPC and no separate conviction is necessary so acquitted from the charges of Section 323 and thus convicted and sentenced the appellants/accused persons as per para-1 of the impugned judgment.

8. Challenging the conviction and sentence, this appeal has been preferred on the ground that :-

"i. Trial Court has overlooked that injuries found on the person of complainant by teeth bite is not got examined by the doctor by examination of the teeth of the appellants.

ii. Trial Court has not considered the version of defence witness Ashok Kumar Daheria (DW-1) who is eye-witness of the incident and listed witness of the charge-sheet.

iii. Trial Court has erred not to see that investigation is incomplete and illegal due to reason that report is lodged after three

hours delay after consultation with the prosecution witness Gyanilal Uikey (PW-2) and no seizure of blood stain from the place of occurrence was made. Statement of prosecution witnesses is recorded by delay of 23 days after registering the case and no independent witness has been examined by the prosecution.

iv. There is no evidence regarding common intention, dishonour

and intimidation.

v . Trial Court erred to conclude that the complainant is a member of ST category in absence of material and trial Court erred not to see that the whole prosecution case suffers from contradictions and omission on the material fact of the case."

9. Heard.

10. Prosecution has supported the conviction and sentence to the appellants/accused persons.

11. Trial Court has found the testimony of Mitthan Lal Uikey (PW-1) reliable as coroborated by Dr. Alamdar Hussain (PW-4). Trial Court has discussed in para-19 of the judgment about the discrepancy in the statement of Mitthan Lal Uikey (PW-1) and also discussed the defence as put through Ashok Daheriya (DW-1) regarding the injuries on the body of Mitthan Lal Uikey (PW-

1) by fall due to stamble and concluded in para-25 that appellant/accused caused voluntary injury to victim PW-1 by teeth bite and use of fist in furtherance of common intention to caused injury to victim Mitthan Lal Uikey (PW-1). Evidence of Mitthan Lal Uikey (PW-1) discloses that the incident happened in the backdrop of T.V. of Rajeev Gandhi Mission and victim refused to handover the T.V. before the incident due to this incident, husband of the victim Anoop and Dashrath caused injury to victim Mitthan Lal Uikey (PW-1) with fist and also caused bite injury in the left cheek of victim Mitthan Lal Uikey (PW-1).

12. Gyanilal Uikey (PW-2) has supported the version of Mitthan Lal Uikey (PW-1) and specifically mentioned that Dashrath caused the injury by teeth bite in the left cheek of Mitthan Lal Uikey (PW-1). Dr. Alamdar Hussain has coroborrated Mitthan Lal Uikey (PW-1) and Gyanilal Uikey (PW-2) through

report Ex.P-6 and intention regarding injuries.

13. Dr. Ashok Sharma (PW-5) also corroborated the version of Mitthan Lal Uikey (PW-1) and Gyanilal Uikey (PW-2). The objection raised regarding the reliability of these witnesses on the ground of delay of FIR and recording of their statement by the Investigating Officer has no substance.

14. Trial Court rejected the testimony of Ashok Kumar Daheria (DW-1) with cogent reason and ground of non-examination of independent witness also has no substance and finding that on 11.06.2003 at about 7 to 7:08 PM, appellant/accused caused voluntary injuries to Mitthan Lal Uikey (PW-1) is not only proved but in the backdrop of incident prior to causing the injuries, it is also proved that appellant/accused caused the voluntary injuries to Mitthan Lal Uikey (PW-1) in furtherance of their common intention to cause injuries to Mitthan Lal Uikey (PW-1).

15. Now the question arises what offence is constituted by the injury due to teeth bite. Trial Court has concluded that offence falls within the purview of Section 324 of the IPC. This finding is being tested in the decision of Supreme Court in the case of Sakeel Ahamad vs. State, Delhi, (2004) 10 SCC 103 in which it is held that :-

"The appellant stands convicted under Section 326 read with Section 34 of the Indian Penal Code. Injuries, no doubt, are grievous as the phalanx of the index finger has been snipped off.

But the allegation is that the assailant had bitten the index finger and caused the said injury. Teeth of human being cannot be considered as deadly weapon as per the description of deadly weapon enumerated under Section 326 of the IPC.

Hence the offence cannot escalate to Section 326. It can best remain only at Section 325 of the IPC. We, therefore, alter the

conviction to Section 325 of the IPC read with Section 34 of the IPC."

16. Accordingly, trial Court has committed error for holding liable under Section 324 read with Section 34 of the IPC. Their act constitute offence of Section 323 only.

17. On record prosecution has been utterly failed to prove that victim Mitthan Lal Uikey (PW-1) falls within the category of SC or ST, accordingly, the findings recorded in para-27 of the judgment are unsustainable.

18. In the light of above discussion, this appeal is partly allowed and appellants/accused are acquitted from the charges of Section 3(1)(x) of SC and ST (POA) Act, 1989 and from the charges of Section 324 read with Section 34 of the IPC and they are convicted under Section 323 read with Section 34 of the IPC for causing voluntary injury to Mitthan Lal Uikey (PW-1) in furtherance to their common intention on 11.06.2003.

19. Appellants/accused have undergone a custody from 14.07.2003 to

16.07.2003 during the investigation and incident relates to more than 20 years ago.

20. As per arrest memo of appellants/accused Ex.P-3, P-4 and P-5, there is no criminal antecedent of the appellants/accused. Looking to the nature of the incident, having regard to the facts and circumstances of the case and the character of appellants/accused as first offender, it is expedient to release them on probation of good conduct under section 4 of the Probation of Offenders Act, 1958 and it is directed that the finding of the trial court regarding the sentence is modified and instead of sentencing the appellants/accused at once, it is directed that appellants/accused be released on bail entering into bond with surety of Rs.10,000/-(Rupees Ten Thousand Only) each to the satisfaction

of the trial court within a period of 90 days to appear and receive sentence when called upon by the trial Court during a period of 3 years and in the meantime to keep the peace and be of good behavior.

21. With the aforesaid, the criminal appeal is disposed off.

(GAJENDRA SINGH) JUDGE DPS