Ravi @ Ravishankar Kahar vs State Of Madhya Pradesh

The applicant has filed this criminal revision under Section 397/401 of the Code of Criminal Procedure, 1973 being aggrieved by the conviction

punishable under Section 325 of the IPC and sentenced to undergo R.I. for 2 years with fine of Rs.500/- in default of payment of fine, additional R.I.

for 1 month passed by the Court of JMFC, Gouharganj, District Raisen in Criminal Case No. 733/2012 vide judgment dated 29.11.2018 and affirmed

by the Appellate Court vide judgment dated 02.05.2019 passed by the Additional Sessions Judge, Goharganj, District Raisen in Criminal Appeal No.

87/2018.

The case of the prosecution against the applicant before the trial Court, in short, are that the injured Rahul Nagar and applicant Ravi @

Ravishankar both were friends. On account of some dispute, the applicant called Rahul Nagar and took at his home. When Rahul Nagar reached in

home, then Ravi Kahar took the wooden stick and repeatedly assaulted Rahul Nagar and said to go from the spot. Rahul Nagar went away, one

Uttamsingh and his father took him at Civil Hospital Abdulaganj where from he referred to the Hamidiya Hospital, Bhopal for further treatment.

Police Officer of the Police Station Noorganj recorded the Dehati Nalishi and after inquiring into the matter registered a case against the applicant for

the offence punishable under Sections 294, 323 and 506 of the IPC and registered Crime No. 11/12. After investigation charge-sheet came to be filed

for the offence punishable under Sections 294, 323, 506, 325 and 326 of the IPC before the Court of JMFC Goharganj, District Raisen. Since the

offence under Section 326 of the IPC is exclusively triable by the Court of Session, the Court of JMFC committed the case to the Sessions Court vide

committal order dated 03.07.2012. The 3rd Additional Sessions Judge, Raisen vide order dated 23.08.2012 found that there is no ingredient of offence

of 326 of the IPC prima facie found, therefore, the case again remanded back to the Court of JMFC for trial of the offence under Sections 294, 325

and 506 Part-II of the IPC.

Learned JMFC Court framed the charge against the applicant, applicant denied for the charge. The trial Court recorded the evidence of Rahul

Nagar (P.W.-1), Kailash Chandra Nagar (P.W.-2), Seizure Witness, Dilip Malviya (P.W.-3), independent witness, Omprakash (P.W.-4), witness of

memorandum and seizure, Gulabsingh (P.W.-5), father of the injured, Uttam Singh (P.W.-6), who brought the Rahul Nagar to the hospital Abdulaganj,

Dr. Bhawana Benjamin (P.W.-7) who examined the injuries of Rahul Nagar and referred the injured for further treatment at Bhopal, Sub Inspector,

Mahendra Thakur (P.W.-8), Investigating Officer, Akhilesh Nagar (P.W.-9), brother of the injured, Dr. Anil Pawar (P.W.-10), who examined the

applicant at Hamidiya Hospital, Bhopal and Dr. Sumendra Singh, Raidiologist who click X-ray of the injured person and opined that there was a

fracture in Tibia and Febula of the right leg and ulna bone of the left hand. In examination of the accused under Section 313 of the Cr.P.C. the

applicant pleaded defence that victim forcibly trying to commit illegal relation with his wife and when his wife cried to save her, then victim fled away

from the spot and fallen on the hard surface of the stone and sustained some injuries. In his defence, the applicant examined Sunita Kahar (D.W.-1) .

The Court of JMFC after hearing both parties delivered a judgment on 29.11.2018 thereby acquitted the applicant for the charges under Sections

294 and 506 part-II of the IPC, however, convicted the applicant for the offence punishable under Section 325 of the IPC and sentenced him to

undergo 2 years R.I. with fine of Rs.500/- with default stipulation.

Against that conviction and sentence, the applicant preferred an appeal, registered as Criminal Appeal No. 87/2018. The Additional Sessions Judge,

Goharganj, District Raisen vide judgment dated 02.05.2019 dismissed the appeal and affirmed the conviction and sentence passed by the Court of

JMFC.

Being aggrieved by the judgment and order passed by both the Courts below, the applicant filed this criminal revision on the ground that the learned

both Courts below have not appreciated the evidence properly. Prosecution failed to prove his case beyond reasonable doubt. There are so many

material contradictions and omissions found in the statement of the witnesses. Learned both Courts below have not extended the benefit of doubt to

the applicant. Learned trial Court did not consider the defence version. Some of the prosecution witnesses turned hostile. Learned both Courts below

have erred in convicting the applicant for the offence, therefore, he prays to set aside the conviction and sentence and acquit the applicant of the

charge.

Learned Panel Lawyer for the respondent/State submits that both the Courts below have not committed any illegality, irregularity or perversity in

passing the impugned orders, therefore, prays for dismissal of the revision.

Having heard learned counsel for both parties and perused the evidence of witnesses recorded before the trial Court.

The applicant produced his wife in his defence. She stated that on the date of incident, her husband Ravi was not at home she was cooking food in

kitchen. Victim Rahul Nagar (P.W.-1) came and caught hold her and was trying to make illicit physical relation with her, she cried and after that he

fled away from the spot, he jumped the boundary wall and fell down other side and sustained some injury because at that time darkness was there.

After that victim Rahul went to the Dilip Malviya and both lodged a false report against her husband. She did not make a report to save her image. In

her cross-examination, she admitted that she came to know after two days about lodging of report and she also admitted that she had not made a

report against the applicant with regard to entering in her house and trying to make illicit physical relation upon her. She also admitted in her cross-

examination that whenever she went to take water from the well, Rahul teased her and tried to make forceful relation with her. She also admitted that

before this incident, Rahul 4 to 5 times tried to make a relation with her, but she did not reported the matter. She also stated that the boundary wall is

of 7 to 8 feet height and when Rahul jumped on the other side of the boundary wall, she cannot see what happened there, but, when she peeped from

the gate, then she saw that Rahul was going to the house of Dilip Malviya. She also stated that at that time, he was running fast. In her cross-

examination in para 3 she categorically admitted that he wants to save her husband and also admitted that she was having a love affairs with the

applicant Rahul.

On going through the statement of Sunita Kahar (D.W.-1), this fact emerges out that she was having a love affairs with the applicant/victim Rahul

and also at the time of incident he met her but she did not uttered this to anyone. She is trying to save her husband from the offence and she could not

see the Rahul after he jumped other side of the boundary and Rahul was going fast to the house of the Dilip Malviya.

Dilip Malviya (P.W.-3) has stated that he knows both the applicant as well as vitim Rahul Nagar. This witnesses stated that he hold the Rahul in

front of the house of Harishankar, but Rahul never stated about the incident, but, this witness categorically stated that at that time, Rahul was not in a

position to walk freely, therefore, this witness hold him.

Rahul Nagar (P.W.-1) stated that applicant called him at his house and took him inside the house and without saying anything assaulted by stick,

then he went outside and with the help of Dilip called his father and he took him to the hospital and after that lodged a report in the Police Station

Noorganj (Ex.-P/1). This witness categorically stated that why the applicant beat him he did not know. His bone of leg was broken. In his cross-

examination in para 3 he again stated that the applicant started beating without saying anything by wooden stick, but he denied the fact that he trying

to make a forceful physical relation with the wife of the applicant and by jumping the boundary wall, he sustained injury.

Kailash Chandra Nagar (P.W.-2) stated that one wooden stick seized at the instance of the applicant. Gulab Singh (P.W.-5) stated that he is

father of Rahul, applicant told him to send Rahul the shop of Durgesh. Rahul was not at home at that time and when Rahul came he told him that Ravi

came and called him, then Rahul went and Ravi took him at his home. In his cross-examination in para 5, this witness admitted that applicant Ravi and

his son Rahul were the friends.

On going through the evidence of Dr. Bhavana Benjamin (P.W.-7), Dr. Anil Pawar (P.W.-10) and Dr. Sumendra Singh (P.W.-11), this fact

emerges out that Rahul sustained 11 injuries of his person. There was no eye witness. As per statement of Rahul Nagar (P.W.-1), the applicant called

him and took him in his house and without saying anything started assaulting him on stick, but, Sunita Kahar (D.W.-1) who was having a love affair

with Rahul, stated that at the time of incident her husband was out Rahul came there and tried to make physical relation and while he was jumping the

boundary wall, he sustained some injuries. Rahul Nagar (P.W.-1) not stated that Sunita Kahar (D.W.-1) was present at the time of incident in house.

Sunita Kahar (D.W.-1) stated that at the time of incident, she was alone, her husband was not at home. It is reflected from her statement that she

was having love affairs with the victim and victim used to come in her house and before this incident, 4 to 5 times, the victim tried to make illegal

physical relation with her, but she never complained to this to anyone. The question arises in the above circumstances is that whether Rahul had

jumped the boundary wall of 7 to 8 feet of height. It seems that it is a story developed by Sunita Kahar (D.W.-1) because she stated that she is

inclined to save her husband who is applicant herein.

Now considering the statement of Rahul Nagar (P.W.-1), he categorically stated that applicant Ravi called him and when this witness reached the

home of the applicant, applicant started assaulting on him by stick without saying anything. No doubt, there would have been some doubt in the mind of

the applicant that the victim came in his house for making illegal physical relation with his wife, on account of that he started to beat him. If this was a

situation, applicant was not permitted to do criminal act. He could make report to the police or his wife can make a report to the police. Place of

incident is the house of the applicant and Rahul Nagar (P.W.-1) sustained the grievous injury and simple injury in the various part of the body. The

name of the applicant is reflected in the FIR (Ex.-P/1). Before this incident both were the friends of each other and there was no previous enmity to

implicate the applicant falsely.

In this case, considering all these facts and circumstances, this Court finds that there is no gross injustice done by both Courts below in

appreciation of the evidence. This Court should not invoke the revisional power in these circumstances. The JMFC Court of Goharganj convicted the

applicant for the offence punishable under Section 325 of the IPC and sentenced him to undergo 2 years R.I. along with fine of Rs.500/- with default

stipulation. Applicant filed an appeal being aggrieved by that conviction and sentence before the Appellate Court, registered as Criminal Appeal No.

87/2018. Additional Sessions Judge, Goharganj, District Raisen, after hearing both parties, delivered a judgment on 02.05.2019 whereby while

appreciating the evidence of both parties recorded before the trial Court, affirmed the conviction and sentence passed by the trial Court.

Now as per Section 393 of the Cr.P.C., the judgement of the Appellate Court upholding the conviction and sentence passed by the trial Court is

final. It is clearly mentioned in Section 393 of the Cr.P.C. that the judgment and order passed by the Appellate Court, in an appeal, shall be final.

Meaning thereby that the revisional Court is having limited jurisdiction of appreciation of evidence. If revisional Court finds that there is a gross

miscarriage of justice caused in appreciation of evidence, then revisional Court can interfere into the finding of conviction and sentence because

revisional Court is not having a power of appreciation of evidence in the same capacity as is having the Appellate Court.

On the basis of above discussions, this Court finds that there is no need to interfere in the conviction under Section 325 of the IPC imposed against

the applicant. Learned counsel for the applicant submits that the learned both Courts below imposed a severe punishment which warrants interference

because applicant and complainant were the friends and complainant was having a love affairs with the wife of the applicant and trying to make illegal

physical relation with her. Being aggrieved by that, the applicant committed this offence, therefore, prays for reducing the punishment.

Considered the submissions made by learned counsel for the applicant. No doubt, on the basis of evidence it is reflected that complainant used to

go the house of the applicant and tried to make physical relations with his wife and applicant and victim both were the friends before this incidnet.

Rahul Nagar (P.W.-1) clearly stated that he did not know that why the applicant started beating him and what was the cause upon the applicant to

beat the victim.

This Court is not inclined to provide benefit of Probation of Offender Act to the applicant, but inclined to reduce the period of imprisonment.

Therefore, this Court reduce the imprisonment of punishment from 2 years R.I. to 3 months R.I. and enhanced the fine from 5,00/- to Rs.3,000/- with

the same default stipulation as imposed by the JMFC.

Consequently, this revision is partly allowed. Conviction is upheld and sentence of imprisonment is reduced to 3 months R.I. and fine is increased

to Rs.3,000/-in default of payment of fine, the applicant shall undergo the additional 1 month R.I.

Accordingly, with the aforementioned modification, the revision is disposed of.