Vijay vs State of Madhya Pradesh

Tarun Kumar Kaushal, J.—This appeal has been preferred against the judgment dated 29th July, 1997 passed by Sessions Judge, Betul in S.T. No. 69/1997 convicting the appellant u/s 452 IPC and sentenced to 1 year R.I and with fine of Rs. 200/- and further convicted him u/s 324 IPC and sentenced to 1 year R.I. and with fine of Rs. 1000/-. Facts of the case, in short, are that on intervening night of 29-30/09/1996 at about 2.00 am appellant along with one co-accused entered house of Mango Bai (PW-1). Appellant assaulted Mango Bai with iron rod and in sequence further assaulted her son Kailash (PW-2) and daughter Sushila Bai (PW-3). After incident, appellant ran away from the house. Rod used by the appellant was snatched by Mango Bai (PW-1). On 30/09/1996 at about 9.00 am Kailash lodged FIR Ex. P/1 at Police Station Betul. A case at Crime No. 446/1996 u/s 306, 452, 323 IPC and u/s 3(1)(10) The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 was registered against the appellant and one unknown person. Injured persons were sent for medical examination. During investigation police seized weapon of offence, blood stained clothes, soil etc from the spot.

After completing investigation police Betul, citing 16 witnesses, submitted a charge sheet against the appellant and another u/s 307, 452, 323 IPC. Trial court framed charges u/s 452 IPC and u/s 307 IPC and/or u/s 307/34 IPC for causing injuries to Kailash (PW-2) and Sushila Bai (PW-3) and u/s 323 IPC for causing injuries to Mango Bai (PW-1). Appellant abjured guilt. Defence of the appellant was that of false implication on account of enmity and suspicion.

To substantiate the case of prosecution, statements of Mango Bai, injured (PW-1), Kailash, injured (PW-2), Sushila Bai, injured (PW-3), Cheti Bai (PW-4), K.K. Verma, Sub Inspector (PW-5), Dr. Vitthal Rao Nagale (PW-6) and Vinay Bajpayee, Inspector (PW-7) were recorded.

Appreciating the aforesaid evidence, trial court acquitted the co-accused person of all charges for want of his identification in the court. Trial Court acquitted appellant of the charge u/s 307, 323 IPC. However convicted him u/s 452, 324 IPC and sentenced him as above.

Assailing aforesaid judgment, this appeal has been preferred on the grounds that trial court has not appreciated evidence in proper perspective. In fact none of the assailant identified by the injured persons. Even though conviction has been based on insufficient and doubtful evidence. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence.

Admittedly, no appeal has been filed against the acquittal of appellant u/s 307, 323 IPC. Meaning thereby act of the appellant has to be ascertained and appreciated in respect of causing injuries to Kailash (PW-2) and Sushila Bai (PW-3) only. On careful perusal of evidence of Kailash (PW-2), it is clear that he did not support the prosecution and was declared hostile. Initially he did not identify any of the assailant. Kailash (PW-2) admitted the suggestion of prosecution put to him in cross examination that he had mentioned the name of appellant in his police statement. Such type of statement is not safe to rely. Sushila Bai, injured (PW-3) stated that appellant assaulted her with rod on her head. In her cross examination her above statement remained intact and reliable.

In view of the evidence of Dr. Vitthal Rao Nagale (PW-6) and MLC reports Ex. P/7, Ex. P/8, and Ex. P/9 and further in view of evidence of query report Ex. P/11, it remained no longer disputed that a rod like weapon was used by the appellant in the incident. It is submitted by learned counsel for the appellant that this is not a weapon of cutting, shooting, or stabbing. According to medical evidence all injuries are lacerated wounds and abrasions. There is no indication of any injury caused by a weapon like cutting, shooting, or stabbing.

On careful perusal of evidence of Sushila Bai, injured (PW-3) and Dr. Vitthal Rao Nagale (PW-6). Conviction of appellant u/s 324 IPC becomes unsustainable rather he is liable to be convicted u/s 323 IPC.

As discussed above, appellant is acquitted of the charge u/s 324 IPC. Rather stands convicted u/s 323 IPC. I see no infirmity in appreciation of evidence in so far as conviction of appellant u/s 452 IPC is concerned.

At this stage learned counsel for the appellant submit that for offences u/s 323, 452 IPC, there is 27 days period of custody to the credit of the appellant pending investigation and trial. No useful purpose would be served in sending the appellant back to jail after a period of about 12 years of incident. At the time of incident appellant only aged 21 years.

For offences u/s 323 IPC, sentence of 27 days undergone period seem to be just, proper and sufficient. In addition to aforesaid undergone period appellant is sentenced to fine of Rs. 1000/- also. Similarly for an offence u/s 452 IPC, appellant is sentenced to 27 days period already undergone and with fine of Rs. 200/-. Fine amount has already been deposited by appellant pending trial/appeal.

This appeal is allowed in part. Conviction of appellant u/s 324 IPC is set aside, instead convicted u/s 323 IPC. For offences u/s 323 IPC and 452 IPC, appellant is sentenced to 27 days period already undergone period and with fine of Rs. 1000/- and Rs. 200/- respectively, that has already been deposited. Appeal is allowed in part.