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Dinesh vs The State Of Madhya Pradesh on 15 November, 2018

1

Cri.A.No.1863/2017

HIGH COURT OF MADHYA PRADESH, PRINCIPAL
SEAT AT JABALPUR
(SINGLE BENCH : HON’BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No.1863/2017

Dinesh
Vs.
The State of Madhya Pradesh

Shri A.K.Saxena, Advocate for the appellant.
Shri V.S.Mishra, G.A. for the respondent / State.

Whether approved for reporting : (Yes / No).

JUDGMENT

(15/11/2018)

The appellant has preferred the present appeal being ag-
grieved with the judgment dated 22.4.2017 passed by Special
Judge (POCSO Act), Chhattarpur, District Chhattarpur, in Special
Case No.102/2015 whereby the appellant has been convicted for
the offence under Sections 354-ka(1)(i)(ii), 323 and 307 of the IPC
and sentenced to undergo RI for 1 year, R.I. for 1 year and R.I. for
8 years along with fine of Rs.10,000/-, in default 2 years further
R.I. respectively.

2. The prosecution case, in brief, is that on 23.7.2015 at about 1
PM in village Shyamri, Police Station Civil Lines Chhattarpur
when the prosecutrix PW5 was going to Chhattarpur from her vil-
lage, on the way she met with appellant accused who asked her as
to why she is going alone and with bad intention forced her to ac-
company him to Chhattarpur. When the prosecutrix refused, he
abused, caught hold her hand and slapped her with the intention
to outrage her modesty. Thereafter, the prosecutrix returned back
2

Cri.A.No.1863/2017

to her house and narrated the entire incident to her father Bhura.
Then her father called the appellant and his father, and enquired
about the incident. Some scuffle took place amongst them and
during the scuffle appellant assaulted father of the prosecutrix
with lathi on his neck and caused grievous injury with an inten-
tion to kill him. The incident was reported to the police station
Civil Lines, District Chhattarpur where FIR, Ex.P/1 was recorded
and Crime No.285/2015 was registered and after investigation
charge-sheet was filed against the appellant and his father Heer-
alal.

3. The appellant was tried for commission of offence under
sections 341, 294, 323, 354(1)(i)(ii) and 307 read with section 34
of the I.P.C. read with section 11(i)/12 of the POCSO Act and fa-
ther of the appellant Heeralal was tried for commission of the of-
fence punishable under section 307 read with section 34 of the
I.P.C. Appellant and his father abjured the guilt and claimed to be
tried. The defence of the appellant is that he has been falsely im-
plicated. At the time of incident victim Bhura had beaten him and
as Bhura fell down, he sustained injury on his head. However, fa-
ther of the appellant has taken the plea of alibi. After completion
of trial, the learned trial court has convicted and sentenced the ap-
pellant as mentioned above. However, father of the appellant was
convicted under section 323 of the I.P.C. and sentenced to the pe-
riod already undergone by him. No appeal has been filed against
the said order of conviction.

4. The finding of the learned trial court has been assailed on
the ground that the incident is not supported by any independent
witnesses. Apart from it, in the case there is no medical evidence
to prove the fact that the injury caused by the appellant to the vic-
tim was sufficient in the ordinary course of nature to cause death.
Even no x-ray report or report of CT scan has been adduced in the
evidence. Only on the ground of period of treatment in the Hospi-

3

Cri.A.No.1863/2017

tal it can be said that the nature of the injury sustained to the vic-
tim was grievous which was caused by ‘lathi’. Therefore, the ap-
pellant can hardly be convicted for commission of offence punish-
able under section 325 of the I.P.C. instead of section 307 of the
I.P.C. It is further submitted that when the appellant was beaten
by Bhura who is victim, then the appellant inflicted lathi blow. In
the circumstances, it cannot be said that he assaulted the appel-
lant with intention to cause any grievous injury or to cause death
of the victim. Hence, considering the facts and circumstances of
the case and the fact that at the time of incident, appellant was 19
years old boy having no previous criminal antecedents thus de-
serves to be dealt with liberally. Now, he has completed more
than three years imprisonment, therefore, he may be enlarged by
reducing his sentence to the period already undergone after en-
hancing the fine amount reasonably just to compensate the victim
as on account of the injuries he is in persistent vegetative state.

5. On the other hand, learned G.A. opposed the aforesaid con-
tention and stated that looking to the nature of injury, the appel-
lant is not entitled to get any concession in the sentence.

6. Having heard the contention advanced by learned counsel
for the parties and on perusal of the record, in view of this Court,
the finding of the learned trial court with regard to commission of
offence under sections 354-ka(1)(i)(ii), 323 of the I.P.C. does not
require any interference as the ingredients of the offence have
been proved by the testimony of the prosecutrix, PW5 and corrob-
orated by the statement of Dr.Vineet Pateriya, PW13 and FIR,
Ex.P/1.

7. So far as the finding with regard to commission of offence
under section 307 of the I.P.C. is concerned, it is found that the
testimony of Kallu Ahirwar, PW2, Smt.Jamunabai, PW3,
Smt.Lalla, PW4 and the prosecutrix, PW5 established the fact that
4

Cri.A.No.1863/2017

the appellant assaulted victim Bhura with lathi on his neck.
Dr.Nirdesh Khare, PW12, who initially examined the victim and
prepared, MLC report, Ex.P/12 and Dr.Satish Choube, PW14, who
treated the victim have stated that he found injuries on the face of
the victim. He was unconscious. ASI Anup Yadav, PW16, has
stated that the papers relating to treatment of the victim were re-
ceived from District Hospital, Chhattarpur, which is Ex.P/18. Ac-
cording to Ex.P/18, the victim remained admitted in the Hospital
from 8.9.2015 to 3.10.2015. Hence, for more than 20 days the ap-
pellant remained admitted in the Hospital, therefore, he was un-
able to perform his daily pursuits. So far as offence punishable
under section 307 of the I.P.C. is concerned, there is no medical
evidence to prove the fact that the injury was sufficient in the ordi-
nary course of nature to cause death. The circumstances in which
the incident had taken place also do not indicate that the appel-
lant assaulted the victim with intention to cause his death or as-
saulted in such a manner that if he by that act caused death, he
would be guilty of murder as the circumstances show that when
the appellant was slapped by the victim, the appellant assaulted
the victim with lathi and only one blow was dealt with. Hence, the
finding with regard to establishment of commission of offence
punishable under section 307 of the I.P.C. is not sustainable and
at the most he is liable to be convicted for the offence under sec-
tion 325 of the I.P.C. Hence, the finding of the learned trial court
with regard to commission of offence punishable under section
307 of the I.P.C. by the appellant is set aside and instead the ap-
pellant is convicted under section 325 of the I.P.C.

8. On perusal of the record, it is found that the appellant is in
custody since 1.8.2015. He has completed more than three years
imprisonment and if the remission period be considered, the total
period would be nearabout 3 years and 8 months. At the time of
incident, appellant was 19 years old. He has no criminal an-

5

Cri.A.No.1863/2017

tecedents and the incident took place suddenly in a heat of pas-
sion. In the circumstances, no purpose would be served by keep-
ing the appellant in further custody. However, considering the im-
pact of injuries on the victim, the victim deserves to be compen-
sated appropriately. Therefore, the sentence of fine amount is en-
hanced to Rs.50,000/- in place of Rs.10,000/- which is to be paid
to be victim. In case of default of payment of fine amount, the ap-
pellant shall undergo further R.I. of 1 year. On realization of the
amount, the entire amount be given to victim Bhura Ahirwar, s/o
Chatra Ahirwar, r/o village Shyamri Purwa, Police Station Civil
Lines, Chhattarpur, District Chhattarpur or to his wife Jamunabai,
as victim Bhura is in vegetative stage.

9. In this result, this appeal is partly allowed. The appellant is
in jail. On payment of fine amount, he be released forthwith, if
not required in any other offence. Learned trial court is also di-
rected to inform the victim or his wife with regard to receiving the
amount of fine as compensation.

10. A copy of this judgment be sent to the court concerned for
information and compliance.

(J.P.GUPTA)
Digitally signed by
JUDGE
HS
HEMANT SARAF
Date: 2018.11.16
17:36:22 +05’30’

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