Madhya Pradesh High Court
Vinod Sharma vs The State Of Madhya Pradesh on 16 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1698
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
Cr.A. No. 1418/1999
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT JABALPUR
S.B.-Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.A. No. 1418/1999
Vinod Sharma
Vs.
State of M.P.
JUDGEMENT
Post it for : 16/08/2019 (Rajendra Kumar Srivastava) Judge (14/08/2019) 2 Cr.A. No. 1418/1999 THE HIGH COURT OF MADHYA PRADESH : JABAPLUR S.B.-Hon'ble Shri Justice Rajendra Kumar Srivastava Cr.A. No.-1418/1999 Vinod Sharma Vs. State of M.P.
---------------------------------------------------------------------------------------------------- Shri Shantanu Ayachi, learned Amicus-curiae for the appellant. Shri Mohd. Siddiqque, learned P.L. for the respondent-State.
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JUDGEMENT (16.08.2019) This criminal appeal under section 374 (2) of Cr.P.C. has been preferred by the appellant being aggrieved by the judgment dated 31.03.1999 in S.T. No. 53/15 passed by III Additional Session Judge to the Court of Sessions Judge, Bhopal whereby the learned Sessions Judge has convicted the accused/appellant for the offence under Sections 323 and 342 IPC and sentenced him with fine of Rs. 200/- and Rs. 1000/-, respectively with default stipulation.
According to case, on the day of incident i.e. 03.10.1996, Smt. Bharti Sharma (PW-1), wife of accused/appellant was in the house of appellant alongwith her mother and daughter. Further, at about 4.30 P.M. accused came to house and told her wife (Bharti Sharma) to go out from the house. On refusal, he had started beating her by kick and fists and on intervention of her mother, accused had also committed marpeet with her. Thereafter, accused locked the 3 Cr.A. No. 1418/1999 house and he spread electric current in house. The roof and door of house was constructed with iron.
On information given by his wife, police has registered the case in crime No. 702/1996 for the offence punishable under sections 342,323 and 307 IPC.
In trial, the prosecution has examined 9 witnesses whereas 4 defence witnesses have been been examined by the accused/appellant. Statement of accused under section 313 Cr.P.C has also been recorded by the trial court. After considering the evidence available on record, the learned trial court found the appellant guilty for the offence punishable under sections 342 & 323 of IPC and sentenced him, as aforesaid. The trial court has acquitted the appellant for the offence punishable under section 307 IPC.
In appeal, the learned amicus curiae for appellant submits that the judgment of conviction passed by the learned trial court is contrary to fact and law and deserves to be set aside. He further submits that so far as conviction under section 323 IPC is concerned the medical evidence does not support the case of prosecution. Complainant-Bharti Sharma, as well as other witnesses of the case do not say that the appellant has beaten complainant. As far as offence 342 IPC is concerned there is no evidence which shows that the appellant has committed the same. As per spot map there is no other way for the complainant to escape. Apart from that appellant is government servant and due to this he has been removed from his service. With the aforesaid he prays for allowing this appeal.
On the other hand, learned counsel for the respondent/State opposes the submission of learned amicus curiae and stated that the prosecution has duly proved its case and the trial court has passed sentence in lesser side. Therefore, 4 Cr.A. No. 1418/1999 no interference is warranted in the appeal. With the aforesaid he prays for dismissal of this appeal.
Heard and perused the record.
On perusal of case, it reveals that the appellant has convicted for the offence punishable under section 323 & 342 of IPC for voluntarily causing hurt and wrongful consignment of complainant. The definition of voluntarily causing hurt and wrongful consignment are given under Sections 321 & 340 IPC, thus, before embarking on the facts of the case, I deem fit to reproduce the relevant provision of IPC which are quoted hereinunder:-
"321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
340. Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person."
Now, I revert back to the fact of the case it appears from the record that the FIR was registered by the complainant Bharti Sharma-wife of accused on 03.10.1996 alleging that appellant caused hurt by kick and fists to her. He has also assaulted her mother while intervention. Thereafter, when the complainant and her mother entered in house the appellant locked the same and connected the cable of electricity with roof and door as same were made up of iron. Medical examination of complainant as well as Ramkumari (mother of complainant) has also been conducted and according to it no mark of injury seen over the body of both. In trial, statements of 9 prosecution witnesses have also been examined by the trial court whereas statement of 4 defence witnesses is also recorded by the trial court. On reading of statement of complainant- 5 Cr.A. No. 1418/1999 Bharti Sharma, it appears that she has narrated the same incident as narrated in FIR. In her cross-examination, she stated that there was some dispute between her and accused and he has also given notice to him. She further contended that on 24.07.1996 accused had performed second marriage. Thereafter, when she returned back to house he found lock and the accused lived at Jahangirabad. She further contended that she broke the lock. She had been started living in the house situated at Ban Ganga on saying of father and brother of appellant- accused. PW-2 Ramkumari Bhardwaj has stated that on 03.10.1996, accused causing voluntarily hurt to the complainant Bharti, thereafter, he locked them into house and threw the electric cable upon the roof. Thereafter, police came there and escaped them from house. In her cross-examination, she has accepted the fact of dispute between complainant and appellant. She has also narrated the fact of second marriage of accused-appellant.
Mukhtar Ahmed PW-3 has turned hostile and does not support the case of prosecution whereas Chetnarayan Sharma, PW-4 has supported the prosecution case and have stated that the quarrel was took place between the complainant and accused thereafter, accused took them into room of house and locked the door, thereafter, police came there and after disconnecting the electric cable they had released the complainant and her mother. The trial court has also examined Dr. Smt. Vandana Sharma, as PW-5 who stated that while medical examination she did not find any injury on their body.
PW-6 Bhagwan Das Mangele-Junior Engineer posted at M.P.E.B., Bhopal stated that on receiving complaint, he reached on the spot and disconnecting the electric cable. In his cross-examination, he stated that the roof and other articles of house were made by iron thus the electric may pass through it and on 6 Cr.A. No. 1418/1999 touching death of person may be caused. PW-9 S.I. Mamta Singh deposed that on receipt of information, she reached on the spot and in the presence of Assistant Engineer MPEB, electric current was discontinued thereafter after breaking lock of door complainant and her daughter and mother escaped from the house. In her cross-examination, she has accepted that a case under Section 498-A was on existence between the complainant and she inquired the matter. Shankarlal DW-1 has accepted the presence of complainant and her daughter and mother in the house on the day of incident. Accused also took the defence that he was in government service and on the day of incident, he was on duty and in this regard, Rajendra Singh, DW-3 has stated that in attendance register, the presence of accused has been marked.
It is also necessary to be noted that vide order sheet dated 10.01.1998, the learned trial Judge found that the appellant-accused had lost his mental balance and there is requirement of medical examination through Psychiatrist. Thereafter, it was mentioned by the trial judge that in view of the report received from psychiatrist, further trial of the accused is not possible, thus, by holding up the trial the accused was sent to Mental Hospital, Gwalior for treatment. Thereafter, vide order dated 15.07.2018, the trial judge has again proceeded with trial and passed the final judgment of conviction.
In the light of abovesaid facts, this court shall examine the issue whether the conviction under Section 323 of IPC is correct or not? According to prosecution, accused caused voluntary hurt to complainant Bharti and her mother Ramkumari and while examination mother of complainant Ramkumari has expressed her body pain to medical officer but Dr. Smt. Vandana Sharma PW-5, who performed medical examination of the complainant and Ramkumari 7 Cr.A. No. 1418/1999 does not found any injury on the their body. Other witnesses of the case namely Chetnarayan Sharma PW-4 & Ashok Mandal PW-8 have stated that there was quarrel took place between the appellant and complainant and appellant and accused was beating complainant on the day of incident. Though, PW-8 Ashok Mandal has declared as hostile witness. Thus, looking to the principle that injury is not essential ingredient to constitute the offence under Section 323, this court is of the view that the conviction passed by trial court with regard to Section 323 IPC for causing voluntarily hurt to complainant Bharti Sharma is found correct.
As far as Section 342 IPC is concerned, the complainant alleged that when she did not came out from house, accused locked the door from outside. This version of complainant is supported by her mother PW-2 Ramkumari. PW- 4 Chetnarayan has also stated that the accused locked them into house. Hostile wintess PW-8 Ashok Mandal has also supported the prosecution case to this extent. PW-9 Manta Singh Investigating Officer of the case has stated that they has escaped complainant, her mother and daughter after breaking door. The evidence which adduced by the prosecution in this regard are sufficient to fulfill the ingredients of Section 340 IPC 'wrongful confinement'. Thus, the findings of learned trial court with respect to conviction under Section 342 IPC is also found correct.
Now this court shall examine the sentence passed by learned trial court. On reading of provision of Section 323 & 342 IPC, it reflects that the offence of Section 323 is punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs. 1,000/- or with both. As far as offence 342 IPC is concerned, same is punishable with 8 Cr.A. No. 1418/1999 imprisonment of either description for a term which may extend to one year with fine which may extend to Rs. 1,000/- or with both. In the present case, the appellant has been sentenced with fine of Rs. 200/- for the offence of Section 323 IPC and Rs. 500/- (two counts) for the offence punishable under Section 342 IPC, which also found justifiable, as the circumtances of the case. The learned amicus curiae of the appellants submits that on perusal of of record it reflects that the appellant was in government service and during trial he was suffering from insanity, thus, liberal approach to be adopted in favour of the appellant looking to his future prospect with regard to his service benefit. He prays to give the benefit of Probation of Offenders Act to the appellant. Section 3 of Probation of Offenders Act, 1958 is quoted hereinunder:-
"3. Power of court to release certain offenders after admonition.-- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
In the present case, the offences involved are not punishable with more than one year's imprisonment and there is also no previous criminal record is found on record of the appellant. The appellant was in government service when the incident was occurred. Looking to the evidence and circumstances of the case, this is a fit case to give the benefit of Section 3 of Probation of Offenders Act.
Therefore, the order of conviction passed by the trial court is hereby set-aside 9 Cr.A. No. 1418/1999 and the appellant is hereby released with admonition that in future he would not repeat such type of act and shall maintain peace in his vicinity.
Accordingly, this petition is disposed of.
I appreciate the assistance provided by learned amicus curiae.
Registry is directed to send the copy of this judgment to legal service authority so that remuneration of Rs. 3,000/- be paid to learned amicus curiae for his valuable legal assistance.
(Rajendra Kumar Srivastava) JUDGE pallavi PALLAVI SINHA 2019.08.22 16:36:11 +05'30'