Gogalal vs The State Of Madhya Pradesh
2024 Latest Caselaw 15954 MP

Madhya Pradesh High Court

Gogalal vs The State Of Madhya Pradesh on 29 May, 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. 1268 of 2010
                               BETWEEN:-

                               GOGALAL, S/O DHANSHAYLAL
                               YADAV, AGSED ABOUT 32 YEARS,
                               OCCUPATION-   AGRICULTURIST,,
                               R/O RAHANGI, P.S. KARANJIYA,
                               DISTRICT-DINDORI.
                                                                                                                 .....APPELLANT

                               (BY SHRI SURENDRA PATEL - ADVOCATE)
                               AND


                                THE STATE OF MADHYA PRADESH
                                THROUGH     POLICE    STATION
                                KARANJIYA    DISTRICT-DINDORI
                                (M.P.)
                                                                                                               .....RESPONDENT
                                (BY MS. NALINI GURUNG - PANEL LAWYER )


                                -------------------------------------------------------------------------------------------------
                                                 RESERVED ON                      :    15.05.2024
                                                 PRONOUNCED ON                :       29.05.2024
                              _______________________________________________________________
                               This appeal having been heard and reserved for judgment, coming on for
                          pronouncement on this day, the court passed the following:-

                                                                    JUDGEMENT

This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and sentence dated 30.06.2010 passed by Special Sessions, Judge, Dindori in Special

Sessions Trial No.09/2009, whereby appellant has been convicted for the commission of Offence punishable under Section 354 of IPC and sentenced to undergo S.I. for six months with fine of Rs.500/- and has been convicted under Section 323 of IPC and sentenced to undergo S.I. for three months with fine of Rs.500/- with default stipulation.

2. Prosecution story in brief is that -

**¼1½ eS --------- xzke ------ esa jgrh gwaA fnikoyh ds igys dh ckr gSA lcsjs ds lkr cts FksA ?kj dk dke djds eS ysfVªu djus ds fy;s tc eS okil vk jgh Fkh eafnj ds rjQ xkao ds ckgj xksxkflag feyk tks vkt gkftj vnkyr vfHk;qDr mifLFkr gSA vfHk;qDr us esjs nksuks gkFk idM dj eq>s iVd fn;kA vfHk;qDr esjh iaVh mrkjus yxk esjs Åij p<us yxkA blus esjk ewg Hkh nck;k vkSj xyk Hkh nck;kA tc eSsus mldks ykr ekjh rks nwj fNVd x;kA fQj ls tc eS nks pkj dne pyh vkSj vfHk;qDr us esjs Cykmt QkM fn;kA vfHk;qDr us ;g dgk fd rqedks dqN ugha fd;k ?kj esa tkdj dqN ugha crk;k fQj eS jksrs jksrs gq;s ?kj x;h ?kj tkdj eSus ?kVuk ds ckjs esa vius ifr ----- lkal --------- rFkk llqj dks crk;kA

¼2½ fQj geus xkao dh iapk;r cqyk;h FkhA nl cts iapk;r 'kq: gks x;h Fkh rhu cts rd pyh FkhA vfHk;qDr ds firk us iapk;r esa iSls nsus dk izLrko fn;k Fkk ge yksx iSlk ugha [kkrs rc geus fjiksVZ --------- tkdj djk;h FkhA ------- Fkkus ls esfMdy ds fy;s Hkstk x;k FkkA iqfyl us gekjs lkeus ?kVuk LFky dk uD'kk cuk;k x;k FkkA iqfyl us eq>ls Cykmt tIr fd;k FkkA**

3. After case was committed to the trial court, the trial court framed charges against appellant & the same were read over to the appellant. The appellant pleaded not guilty & claimed to be tried for the offences charged with. To prove the charges against appellant, prosecution adduced oral as well as documentary evidence. After completion of prosecution evidence, appellant was examined u/s 313 of CrPC. The appellant pleaded total denial & stated that he has been falsely implicated. Appellant has examined Samar Singh as defence witness.

After evaluating the evidence that came on record, the learned trial court vide impugned judgment convicted & sentenced appellant as above.

4. Learned counsel for the appellant has submitted that impugned judgment is bad in law, illegal, incorrect & improper. Learned trial court has erred in placing reliance on depositions of prosecution witnesses as the same are full of contradictions, omissions, discrepancies, inconsistencies & improvements. The evidence of prosecution witnesses does not fully support/corroborates evidence of each other. Prosecution has not examined independent witnesses to prove its case. Prosecution witnesses are unreliable. Trial court has not appreciated prosecution evidence appropriately. Defence version ought to have been accepted. Statement of any eye-witnesses was also not on record. No broken bangles have been recovered from the scene of incident. On account of some disputes, 3-4 days prior to incident, appellant has been falsely implicated. Hence, trial court has erred in convicting & sentencing appellant as above. Alternately, it is also prayed that sentence imposed by the trial court is disproportionate to the offence proved. Looking to the age of appellant as well as other circumstances of the case, trial court should have extended benefit of section 360 of CrPC/Probation of Offenders Act. Therefore, appeal filed by the appellant be allowed, impugned judgment be set aside & he be acquitted.

5. 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. The trial court has rightly convicted & sentenced the appellant, as above, hence, appeal is liable to be dismissed.

6. I have heard learned counsel for the appellant/state & have perused/examined record of trial court & grounds taken by the appellant/accused in the appeal memo minutely & carefully.

7. So far as conviction of appellant under Section 354 and 323 of the IPC is concerned, perusal of prosecution evidence reveals that prosecution case primarily rests on testimonies of eye-witnesses etc. & documentary evidence.

8. Prosecutrix has deposed in her examination-in-chief as under:-

** ¼1½ eS --------- xzke ------ esa jgrh gwaA fnikoyh ds igys dh ckr gSA lcsjs ds lkr cts FksA ?kj dk dke djds eS ysfVªu djus ds fy;s tc eS okil vk jgh Fkh eafnj ds rjQ xkao ds ckgj xksxkflag feyk tks vkt gkftj vnkyr vfHk;qDr mifLFkr gSA vfHk;qDr us esjs nksuks gkFk idM dj eq>s iVd fn;kA vfHk;qDr esjh iaVh mrkjus yxk esjs Åij p<us yxkA blus esjk ewg Hkh nck;k vkSj xyk Hkh nck;kA tc eSsus mldks ykr ekjh rks nwj fNVd x;kA fQj ls tc eS nks pkj dne pyh vkSj vfHk;qDr us esjs Cykmt QkM fn;kA vfHk;qDr us ;g dgk fd rqedks dqN ugha fd;k ?kj esa tkdj dqN ugha crk;k fQj eS jksrs jksrs gq;s ?kj x;h ?kj tkdj eSus ?kVuk ds ckjs esa vius ifr ----- lkal --------- rFkk llqj dks crk;kA

¼2½ fQj geus xkao dh iapk;r cqyk;h FkhA nl cts iapk;r 'kq: gks x;h Fkh rhu cts rd pyh FkhA vfHk;qDr ds firk us iapk;r esa iSls nsus dk izLrko fn;k Fkk ge yksx iSlk ugha [kkrs rc geus fjiksVZ --------- tkdj djk;h FkhA ------- Fkkus ls esfMdy ds fy;s Hkstk x;k FkkA iqfyl us gekjs lkeus ?kVuk LFky dk uD'kk cuk;k x;k FkkA iqfyl us eq>ls Cykmt tIr fd;k FkkA

¼3½ eS -------tkfr dh gwa vfHk;qDr vghj tkfr dk gSA fjiksVZ iz- ih&1 esjs }kjk fy[kk;h x;h ftl ij v ls v Hkkx ij esjs gLrk0 gSA tIrh iapukek iz- ih&2 rFkk uD'kk iapukek iz-ih&3 ij izR;sd ij v ls v Hkkx ij gLrk0 gS ;g lc dkxtkr esjs lkeus rS;kj fd;k x;k FkkA **

9. Prosecution witness PW- 2, PW-3 and PW-8 have also deposed almost identically to that of prosecutrix and they have deposed on the basis of information provided to them by prosecutrix. Further, prosecution witnesses Kashiram (PW- 4) Shivkumar (PW-5) and Durga Singh (PW-7) have deposed with respect to Panchayat called after the incident.

10. Now question arises as to whether prosecution witnesses are reliable and trustworthy.

11. I have gone through cross-examination of prosecution witnesses. There is nothing in their cross-examinations, so as to render them unreliable and untrustworthy. Further, there are no material contradictions, omissions and discrepancy in their statements inter se and their Court testimony and their police statement etc. Thus, prosecution witnesses are wholly reliable and trustworthy.

12. From deposition of PW-1 and FIR (Ex.P/1), it is evident that FIR has also been lodged immediately after the incident and there are no material contradictions and omissions in prosecutrix's Court testimony and in FIR (Ex.P/1). Further, from deposition of Dr. S.K. Jhariya (PW-6) and MLC (Ex.P/4), it is evident that Dr. S.K. Jhariya has examined prosecutrix on the date of incident itself and found swelling in left leg. Thus, from FIR as well as medical evidence also testimony of prosecutrix stands corroborated.

13. Further, from deposition of prosecution witnesses, it is also evident that after the incident, Panchayat was called in the village and therein, appellant has admitted his offence. Thus, from above also, prosecutrix's testimony stands corroborated.

14. From deposition of prosecutrix, Durga Singh, Investigating Officer S.N. Pathak and seizure memo (Ex.P/2), torn blouse of prosecutrix has been recovered on 13.10.2009.

15. It is correct that prosecution witnesses PW-8 and PW-9 have turned hostile but in view of discussion in the forgoing paras, it does not affect prosecution case adversely.

16. So far as defence of appellant is considered, I have gone through the suggestions given to prosecution witnesses in their cross examinations, appellant's examination under Section 313 of CrPC and defence witness Samar

Singh's testimony, in this Court's opinion, from appellant's above defence, it is not established that appellant has been falsely implicated in the instant case.

17. 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 see 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.

18. 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 appellant/accused's conviction for above offence/offences. Therefore, grounds taken by the appellant in appeal memo with respect to conviction are not acceptable & hence, rejected. Hence, learned trial court's findings & judgment with respect to appellant/accused's conviction for offence/offfences under Sections 354 and 323 of the IPC are hereby affirmed.

19. So far as sentence is concerned, trial Court has sentenced appellant under Section 354 of the IPC with 6 months simple imprisonment and fine of Rs.500/- and under Section 323 of the IPC with 3 months simple imprisonment and fine of Rs.300/-. In the instant case, appellant has remained in custody from 14.10.2009 to 20.10.2009. There are no criminal antecedents of appellant. Incident is dated 08.10.2009. Therefore, ends of justice would be served, if appellant is sentenced with period already undergone and if fine amount is enhanced.

20. Hence, in view of above, appeal filed by appellant is partly allowed and appellant is sentenced under Sections 354 and 323 of the IPC with period already undergone. Appellant is also sentenced under Section 354 of the IPC with fine of Rs.2,000/- and under Section 323 of the IPC with fine of Rs.1,000/- and in default for each offence, 15 days simple imprisonment.

21. In view of discussion in the foregoing paras, appeal filed by the appellant is partly allowed to the extent as indicated hereinabove.

22. Present appeal is disposed of accordingly.

(ACHAL KUMAR PALIWAL JUDGE

vai