Madhya Pradesh High Court
Santosh Kumar vs The State Of Madhya Pradesh on 6 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF MAY, 2024
CRIMINAL APPEAL No. 1918 of 2009
BETWEEN:-
SANTOSH KUMAR S/O BABLOO @ UMED AHIRWAR,
AGED ABOUT 33 YEARS, AMBEDKAR WARD TEH.
BANDA THANA BANDA DIST. SAGAR M.P. (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI JAFAR KHAN - ADVOCATE FOR APPELLANT)
AND
THE STATE OF MADHYA PRADESH P.S. BANDA DISTT.
SAGAR M.P (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI VINOD TIWARI - PANEL LAWYER FOR STATE)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Appellant- Santosh Kumar is present in pursuance of the bailable warrant
issued by the Court and he is identified by his counsel.
Heard finally.
This Criminal Appeal under Section 374(2) of the Code of Criminal
Procedure has been preferred being aggrieved with the judgment dated
30.09.2009 in S.T. No.230/2009 by VIth Additional Sessions Judge, Sagar,
whereby appellant/accused has been convicted under Section 325 of the IPC
and sentenced to undergo R.I. for one year and a fine of Rs.1,000/- with default
stipulations.
2. The prosecution case before the Trial Court was that on 04.03.2007 at
8:00 AM the complainant Surendra Jain (PW-1) was going to his shop and
when he reached at Bichhua Pul in front of Kundan Hotel, the appellant came
there with iron rod and demanded Rs.15/- for consuming the liquor when
complainant denied and proceeded towards his shop then the appellant
assaulted with iron rod in his back side of the shoulder and also assaulted in his
elbow in the meantime his father Balku came on spot with Lathi in his hand and
started beating him. Witness Bhagwan Das (PW-4) and Praful Kumar Jain (PW-
2) reached on the spot and they rescued the complainant. The appellant
returned uttering filthy abuses and threatening the complainant that he will kill
him. On the report of complainant, Police Station Banda, Sagar lodged an FIR
(Ex.P-1) as Crime No.81/2007 under Sections 327, 294, 506, 323 read with 34
of the IPC. The complainant was medically examined by Dr. N.K. Jain (PW-8)
and MLC report was prepared and examined through X-Ray by Dr. Jinesh
Diwakar (PW-6). As per the report Ex.P-8 the fracture was found on 10th rib of
complainant. The spot map was prepared (Ex.P-2). The iron rod was recovered
from the possession of the appellant and after completion of the investigation,
the charge sheet was filed before Judicial Magistrate First Class, Sagar on
21.05.2007. The case was committed to Sessions Judge and after transfer the
case was submitted for trial before the trial Court.
3. Trial Court framed the charges under Sections 329, 325, 294 and 506
against the appellant and against the co-accused Ballu charges under Section
325/34 and 323 were framed and read over the appellant they abjured the guilt
and prayed for trial.
4. Trial Court recorded the evidence of prosecution witnesses and
examined the appellant under Section 313 of the Cr.P.C. The appellant has
pleaded that the complainant has not paid his labour charges and when he
demanded that he was assaulted by the family members of the complainant. The
appellant has stated that he has been falsely implicated in the case and he has
examined himself as a defence witness and exhibited the report as D-1 lodged
under Section 155 of the Cr.P.C. and a complaint to DIG, Sagar.
5. Trial Court after hearing the parties has acquitted the appellant for the
offence punishable under Sections 329, 294 and 506 of the IPC but has
convicted the appellant for the offence punishable under Section 325 of the IPC
and sentenced as stated above. Hence, this appeal.
6. Learned counsel for the appellant has submitted that he is not agitating
the conviction of the appellant under Section 325 of the IPC and requested that
no criminal record was found. At the time of incident he was 33 years old, 15
years have been elapsed. He is facing the proceedings and appeal is pending
since 2009, the jail sentenced be quashed and find amount be enhanced.
7. Learned counsel for State has submitted that trial Court has rightly
convicted and no leniency is required. Looking to the facts and circumstances
of the offence, the appeal be dismissed.
8. I have gone through the record. From the record it is clear that on
04.03.2007, the appellant has assaulted the complainant Surendra Kumar Jain
(PW-1) with iron rod and the father of the co-accused also assaulted the victim.
The allegation against the victim is that he has assaulted only two times, one
time on the back side of right shoulder and another on the left side of elbow and
from the evidence of Dr.N.K. Jain (PW-8), 7x3 CM contusion was found over
the right shoulder and 1.5x1 CM abrasion was found on the left side of elbow
and no other injury was caused by the appellant.
9. Praful Kumar Jain (PW-2) has also stated that the appellant has
inflicted two injuries and this fact is also supported by the eye witness Bhagwan
Das (PW-4). It may be that some other injuries have come due to falling from
his cycle on the road and assault by the co-accused and as per the statement of
Dr. Jinesh Diwakar (PW-6) no fracture was found in the right shoulder and left
elbow. Fracture was found in the 10th rib of the right side.
10. Looking to the factual position, no cruelty has been done by the
appellant. It is also worth mention that the appellant has lodged a complaint on
01.03.2007 against the complainant Surendra Kumar Jain alleging that appellant
has carried some luggage of the complainant by his Hath Thela and when he
demanded the labour charges, the complainant gave only Rs.2/- and the
appellant demanded Rs.5/- and the complainant had not given Rs.5/- and
assaulted the appellant and the report was lodged on the same day i.e.
01.03.2007 at the Police Station Banda, Sagar. The information was entered in
the Registrar of non cognizable offence and advised him to file a complaint.
When the case was not registered against the complainant, he has filed a
complaint before the DIG, Sagar.
11. By discussing this fact, this Court wants to highlight the fact in which
circumstances the offence was committed and looking to the factors as brought
on record, the act of the appellant express some frustration and in response to
that the offence was committed.
12. Looking to these circumstances and the fact that the appeal is
pending since 2009 and the appellant is labour, no purpose would be served to
send him the jail for a period of one year. Purpose would be served if jail
sentence is reduced till rising of the Court and fine amount is enhanced from
Rs.1,000/- to Rs.10,000/-.
13. Thus, the appeal is partly allowed. The conviction of the appellant
under Section 325 of the IPC as recorded by the trial Court is maintained but
the jail sentence is reduced to T.R.C. and fine amount is enhanced from
Rs.1,000/- to Rs.10,000/-. The amount already deposited by the appellant
before the trial Court be adjusted in the amount deposited by the appellant
before the trial Court. The appellant shall appear before the trial Court within
three months from today to serve the jail sentence of the TRC and deposit the
remaining fine amount (Rs.9,000/-).
14. In default of depositing the fine amount within stipulated period, the
appellant shall under go SI for 4 months.
1 5 . A copy of this order along with record be sent back to the trial
Court.
16. Record of this case be consigned to the Record Room.
(DEVNARAYAN MISHRA)
JUDGE
DPS
