Madhya Pradesh High Court
Sarwar Musalman vs The State Of M.P. on 10 March, 2015
1
Criminal Appeal No.1989/2004
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH
PRESENT :
HON'BLE SHRI JUSTICE N. K. GUPTA
CRIMINAL APPEAL NO.1989/2004
Sarwar Musalman
Vs.
State of M.P.
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Shri B. J. Chourasiya, counsel for the appellant. Shri G.S. Thakur, P.L. counsel for respondent/State. ........................................................................................
JUDGMENT (Delivered on the 10th day of March, 2015) The appellant has preferred the present appeal being aggrieved with the judgment dated 23.11.2004 passed by the Vth Additional Sessions Judge, Chhatarpur in ST No.99 of 2004 whereby, the appellant has been convicted of offence under Section 325 of I.P.C and sentenced to one year rigorous imprisonment with fine of Rs.500/.
2. The facts of the case is short are that on 21.3.2004, the complainant Kasiya, had lodged an FIR Ex.P/1 that at 2 Criminal Appeal No.1989/2004 about 3.00 p.m he was present at city of Chhatarpur to purchase some wheat. When he sat to answer the call of nature near the pond near Chhatrasal talkies, the appellant called him and demanded for some money. Thereafter, he assaulted the complainant brutally. An FIR was lodged. The complainant was sent for his medico legal examination to District Hospital, Chhatarpur. Dr. Rajesh Jain (PW2) after examining the complainant gave his report Ex.P/3. He found 34 injuries to the victim. Out of them the injury on right hand could be grave in nature and therefore, the complainant was referred for Xray examination. Dr. L. D. Rajput (PW10) has given his radiological report Ex.P/8 and informed that there was a fracture of right ulna bone. After due investigation, charge sheet was filed for trial of offence under Section 329 of I.P.C and other offences.
3. The appellant abjured his guilt. He did not take any specific plea in defence but, he has stated that he was falsely implicated in the matter. No defence evidence was adduced.
4. The trial Court after considering the evidence of the prosecution acquitted the appellant from all other charges but, 3 Criminal Appeal No.1989/2004 convicted him of offence under Section 325 of I.P.C and sentenced the appellant as mentioned above.
5. I have heard the learned counsel for the parties.
6. After considering the evidence of the prosecution, it appears that the eye witness Chhabilal (PW9) has turned hostile. However, Kasiya (PW1) and his brother Baldeva (PW6) have stated about the entire incident. Chhabilal has also stated that he found Kasiya lying on the ground in an injured condition and his brother took him in an autorickshaw to the Police Station. There was no enmity between the complainant and the accused so that the complainant would have falsely implicated the appellant. Evidence of Kasiya and Baldeva was duly corroborated by a timely lodged FIR Ex.P/1 and MLC report Ex.P/3 proved by Dr.Rajesh Jain (PW2) and X ray report Ex.P/8 proved by Dr. L. D. Rajput (PW10). There is no any reason to disbelieve these witnesses and it is proved that the appellant assaulted the victim Kasiya causing him a grave injury.
7. The appellant did not take a plea that the complainant has done any overt act so that he got any right of private defence or he was suddenly provoked with grave provocation. The appellant caused four injuries to the victim 4 Criminal Appeal No.1989/2004 whereas, he could know the result of his act on first assault given by him. Hence, it is also established that the appellant had caused grievous injuries to the victim Kasiya voluntarily. The trial Court has rightly convicted the appellant of offence under Section 325 of I.P.C.
8. So far as the sentence is concerned, the learned counsel for the appellant has submitted that no previous conviction of the appellant was proved and therefore, he was the first offender though he was a mature man of 35 years of age but, he has faced the trial and appeal for more than 10 years. He remained in the custody for 75 days and therefore, he may not be sent to the jail again.
9. After considering the submissions made by the learned counsel for the appellant, the grounds taken by him appear to be acceptable. The sentence of the appellant may be reduced to the period for which he remained in the custody by enhancing the fine amount.
10. On the basis of the aforesaid discussion the appeal filed by the appellant is hereby partly allowed. The conviction under Section 325 of I.P.C of the appellant is hereby maintained and the sentence is reduced to the period for which he remained in the custody but, the fine amount is enhanced 5 Criminal Appeal No.1989/2004 from a sum of Rs.500/ to a sum of Rs.7500/. The appellant is directed to deposit the remaining fine amount before the trial Court within two months from today failing which he shall undergo for six months rigorous imprisonment. If fine is deposited then a sum of Rs.5000/ shall be provided to the victim Kasiya s/o Ramla r/o Village Katarwara, Police Station Civil Lines, Chhatarpur by way of compensation.
11. The appellant was on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged after depositing the fine amount.
12. Copy of the judgment be sent to the Courts below with the direction that if the fine is not deposited within the stipulated period then it be recovered as per the provisions of Section 68 of the I.P.C.
(N. K. GUPTA) JUDGE 10.3.2015 bina