Madhya Pradesh High Court
Shambhu Prasad Tiwari vs The State Of Madhya Pradesh on 18 July, 2012
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HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SINGLE BENCH
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.915/2009
Shambhu Prasad Tiwari and three others
Vs.
State of M.P.
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For the appellants : Shri Manoj Kumar Pandey, Advocate.
For the respondent : Shri G.S. Thakur, Panel Lawyer
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JUDGMENT
(Delivered on the 18th day of July, 2012) The appellants have preferred this appeal against the judgment dated 29.4.2009 passed by Special Judge under SC/ST (Prevention of Atrocities) Act, Panna in Special Case No.45/2008 whereby the appellants are convicted for offence punishable under Sections 323 and 294 of I.P.C and the appellant no.1 was sentenced for three months rigorous imprisonment with fine of Rs.1000/- whereas the remaining appellants are sentenced by imposition of fine of Rs.1000/-. Each of them was required to undergo rigorous imprisonment of one month, in default of payment of fine. All the appellants are sentenced for offence punishable under Section 294 of I.P.C with fine of Rs.500/- only and 15 days rigorous imprisonment is awarded in default of payment of fine.
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2. Prosecution's case in short is that on 16.10.2008 the victim Mohanlal (P.W.1) went to repair the electrical line in village Sunhara, Tahsil Panna. The appellant Shambhu Prasad Tiwari went to the spot and abused him with abuses based upon his caste. Thereafter, all the appellants assaulted him by kicks and fists. The appellant Shambhu Prasad Tiwari also assaulted him by a stick. Manoj Kumar (P.W.2), cousin of the victim Mohanlal had lodged an FIR Ex.P/1 on the same day at Police Station, AJK, Panna and case was registered. Injured person was directed to the Civil Hospital, Panna for his treatment and Medico Legal Examination. Dr. Upadhyaya (P.W.7) found as many as five injuries to the victim and he gave his report Ex.P/10. No bony injury was found to the victim Mohanlal. After due investigation a charge sheet was filed before CJM, Panna which was duly committed to the Sessions Court.
3. The appellants abjured their guilt. They did not take any specific plea but, they have stated that they have been falsely implicated in the matter. In the defence Raghvendra Singh Mehdele (D.W.1) and Head Constable Harishankar Tiwari (D.W.2) were examined to prove the FIR.
4. After considering the evidence adduced by the parties, the learned Special Judge acquitted the appellants for offence punishable under Section 506(2) of I.P.C and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act (hereinafter referred to as the "Act") but, convicted the appellants for offence punishable under Sections 294, 323 of I.P.C and sentenced as mentioned above. 3
5. I have heard learned counsel for the parties.
6. Learned counsel for the appellants submits that the complainant was the aggressor and an FIR was lodged by witness Raghvendra Singh Mehdele (D.W.1) which was exhibited as Ex.D/7 and proved by Head Constable Harishankar Tiwari (D.W.2). Under such circumstances, due to right of private defence no offence under Section 323 of I.P.C is made out against the appellants. It is also submitted that the sentence passed against the appellantno.1 Shambu Prasad Tiwari, appears to be harsh.
7. On the other hand, learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct and no interference is warranted.
8. After considering the submissions made by learned counsel for the parties and looking to the evidence adduced by the parties it is to be considered that whether the conviction directed by the trial Court appears to be correct and whether the sentence awarded by the trial Court can be reduced.
9. Mohanlal (P.W.1) and Manoj (P.W.2) have confirmed the incident and their version is duly confirmed by FIR (Ex.P/1) which was lodged within a reasonable period before Police Station, AJK, Panna whereas witness Sampat Bai (P.W.3) turned hostile but, she has stated that some quarrel took place between the parties. Dr. V. S. Upadhyaya (P.W.7) has proved his MLC report Ex.P/10. He found that the victim Mohanlal sustained five injuries which were caused either by sticks or by kicks and fists. After appreciation of the evidence given by the witnesses, it appears that the trial Court 4 has rightly found that the appellants assaulted the victim Mohanlal by kicks and fists whereas the appellant no.1 Shambhu Prasad Tiwari had also assaulted him by a stick.
10. Defence witness Radhvendra Singh Mehdele (D.W.1) has stated that the victim Mohanlal was connecting a wire from L.T. Line directly and therefore, the witness directed him not to do so and therefore, Mohanlal abused him. Thereafter, Mohanlal brought a stick and assaulted the witness Raghvendra Singh Mehdele by a stick for two times and thereafter, that stick was held by one Bajrang Prasad. The FIR (Ex.D/7) is also proved by the Head Constable Hari Shankar Tiwari (D.W.2). In the FIR it is no where mentioned that whether the appellants participated in the crime or not. If the victim Mohanlal had assaulted the witness Raghvendra Singh then certainly his stick was held by one Bajrang Prasad and the entire incident was over. There is no reason shown in the FIR Ex.D/7 as to how the appellants indulged in the crime. In the FIR Ex.D/7, time of the incident is mentioned to be 2.00 p.m whereas, in FIR Ex.P/1, time of the incident is mentioned to be 3.00 p.m and therefore, it appears that two different incidents took place. In the first incident, Mohanlal assaulted the witness Raghvendra Singh Mehdele and thereafter, when he was connecting the line, the appellants assaulted Mohanlal due to revenge and therefore, by an incident which took place at 2.00 p.m, no right of private defence accrued to the appellants. On the contrary they assaulted the victim Mohanlal due to revenge and therefore, they assaulted victim Mohanlal 5 voluntarily. Under such circumstances, conviction directed by the trial Court for offence punishable under section 323 of I.P.C appears to be correct.
11. Similarly, the appellants had abused the victim at a public place with obscene words and therefore, the trial Court has rightly convicted the appellants for offence punishable under Section 294 of I.P.C.
12. So far as the sentence is concerned, learned counsel for the appellants does not challenge the sentence imposed upon the appellants no.2 to 4 but, he challenges the sentence imposed upon the appellant no.1. It is true that th appellant no.1 used a stick to assault the victim but, still there is no criminal past shown against the appellant no.1. He remained in custody for four days during the trial and therefore, looking to his overt act he could not be sentenced for imprisonment. Imposition of fine was sufficient in the case and therefore, jail sentence directed by the trial Court can be reduced to the period which the appellant no.1 has alaredy undergone in custody.
13. On the basis of the aforesaid discussion the appeal filed by the appellants is hereby partly allowed. The conviction and sentences passed against the appellants no.2 to 4 are hereby maintained but, conviction against the appellant no.1 is maintained whereas jail sentence for offence punishable under Section 323 of I.P.C is reduced to the period which he has already under gone in the custody. There is no change in fine amount imposed upon the appellant no.1.
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14. The presence of the appellant no.1 is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
15. Copy of the judgment along with record of the trial Court be sent to the trial Court for information.
(N.K.GUPTA) JUDGE 18.7.2012 bina