Dinesh v. State of Madhya Pradesh

:Shri Satish Singh Thakur, Advocate For Respondent/State : Shri Ajay Tamrakar, Panel Lawyer JUDGMENT 14/02/2012 This appeal has been preferred against judgment dated

18.03.2005 passed by Special Judge (Atrocity), Sehore in Special Case No.310/2002 convicting the appellant under Section 324 IPC and sentenced to 3 years R.I.

2. Facts of the case, in short, are that on 14.10.2002 at about 6:45 p.m. a quarrel arose between appellant and Radha Kishan (PW-1) near hand pump and appellant assaulted a knife injury on stomach of PW-1. He was immediately taken to hospital. Dehati Nalisi (Ex. P/1) was recorded by police Kotwali Sehore at Case No.0/2002 in hospital itself against the appellant. In view of the critical condition of the injured dying declaration was also recorded and injured was referred for further treatment. On the basis of Dehati Nalisi, a case against the 2 Cr.A.No.949/2005 appellant under Sections 294, 323 and 506 IPC and under Section 3(2)(5) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “SC/ST Act”) at Crime No. 742/2002 at Police Station Kotwali Sehore was registered .

3. After completing the investigation, charge sheet was submitted against the appellant. Trial Court framed charges under Section 3(1) (10) and 3(2)(5) of SC/ST Act and under Sections 294 and 307 IPC. Appellant abjured guilt. Defence of the appellant was that of self defence and false implication both. Wife of appellant Yashoda was indecently assaulted by Radha Kishan (PW-1). In this incident appellant also suffered a head injury. A cross case has been registered against the injured also.

4. To substantiate the charges, statements of Radha Kishan (PW-1), Ramswaroop (PW-2) Imratbai (PW-3), Dr. L.N. Namdev (PW-4), Mukesh Vaishya, SDOP, (PW-5), Dharmendra (PW-6) and B.L. Atode, SI, (PW-7) were recorded. To substantiate the defence, statement of Anup Rathore (DW-1) was recorded.

5. Appreciating the aforesaid evidence trial court acquitted the appellant of the charges under section 294, 307 IPC and also acquitted him of the charge under Section 3(1)(10) and 3(2)(5) of the SC/ST Act, however, convicted him under Section 324 IPC and sentenced him as above.

6. This appeal has been preferred on the ground that appreciation of evidence is not proper. Injury of the appellant has not been taken into consideration in proper perspective. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both. 3 Cr.A.No.949/2005

7. In present case, it remains no longer disputed that for the incident happened on 14.10.2002 at 6:45 p.m., Radha Kishan (PW-1) lodged a Dehati Nalisi (Ex.P-1) against the appellant. FIR (Ex.D-1) under Sections 294, 324 and 506 IPC was lodged by the appellant against Radha Kishan (PW/1) at Police Kotwali Sehore. It also remains undisputed that vide MLC report Ex.P-3 Radha Kishan sustained stab wound measuring 4.5 cm x 0.3 c.m. on his stomach and vide Ex. D-5 appellant sustained a head injury measuring 0.5 cm x 0.5 c.m. on the left side of the skull. For ascertaining fact situation, if version given in Dehati Nalisi Ex.P-1 and version given by the wife of the appellant in her police statement Ex. D-4 is taken into consideration, it appears that there had been a dispute arose near the hand pump between Radha Kishan (PW-1) and the appellant. In the aforesaid back ground if the statement of Radha Kishan (PW-1) is appreciated then it becomes evidently clear that injury of appellant has not been explained by him.

8. Ramswaroop (PW-2) son of injured is clearly admitting that there had been scuffling between his father PW/1 and the appellant. There had been some altercation with appellant's wife also Scuffle went on about 5 to 10 minutes. He saw the appellant bleeding from his head.

9. On careful perusal of the aforesaid evidence of prosecution, I am of the view that act of appellant while causing a stab wound on the stomach of PW/1, has exceeded the requirement of the situation. True it may be that injured is not explaining the injury of the appellant but appellant also cannot escape of degrees of his act. I see no perversity in appreciation of evidence by trial Court holding the appellant guilty under Section 324 IPC. It is apparently clear that appellant assaulted a knife injury on the stomach of the injured. Conviction under Section 324 IPC is therefore sustainable and there appears no error in appreciation of evidence in so far as his conviction under Section 324 4 Cr.A.No.949/2005 IPC is concerned.

10. At this stage, learned counsel for the appellant submits that this incident happened at about 10 years ago. Appellant has suffered a custody of 64 days pending investigation and trial. No useful purpose would be served in sending back him to jail after such a long period. On the other hand learned Panel Lawyer submitted that sufficient jail sentence in such a case should be avoided.

11. In view of the totality of the facts and circumstances of the case, where the appellant has sustained a head injury and it has not been explained properly and considering the 64 days undergone period, it seems to be a fit case where the appellant is not required to send jail again, however, considering the seriousness of the incident, fine of Rs. 5000/- is also imposed on the appellant. In default of payment of fine, appellant shall undergo simple imprisonment for three months.

12. As discussed above, this appeal is allowed on the point of sentence only. Conviction of appellant under Section 324 IPC is affirmed. Fine sentence of Rs.5,000/- is also imposed. In default of payment of fine, appellant shall undergo simple imprisonment of three months.

13. Appellant is directed to remain present in the Trial Court on or before 20th April 2012 for depositing the amount or to undergo default sentence, as the case may be.

14. Appeal is allowed in part as above. Ak/ (TARUN KUMAR KAUSHAL) JUDGE