Madhya Pradesh High Court
Mahesh @ Patua vs The State Of Madhya Pradesh on 31 March, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 31 st OF MARCH, 2023
CRIMINAL APPEAL No. 9116 of 2022
BETWEEN:-
MAHESH @ PATUA S/O SHRI RAMDEEN SHARMA,
AGED ABOUT 50 YEARS, RESIDENT OF VILLAGE
BARTHARI POLICE STATION ANTRI, DISTRICT
GWALIOR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ATUL GUPTA- LEARNED COUNSEL)
AND
THE STATE OF MADHYA PRADESH INCHARGE POLICE
STATION THROUGH FIRST ASJ DABRA, DISTRICT
GWALIOR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PAWAN SINGH RAGHUVANSHI- LEARNED PUBLIC
PROSECUTOR)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
The present criminal appeal under Section 374 of CrPC has been preferred by appellant challenging the judgment of conviction and order of sentence dated 27-09-2022 passed by Third Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial No.58 of 2019, by which appellant has been sentenced for five years RI with fine of Rs.1,000/- for commission of offence under Section 195 of IPC, six months RI with fine of Rs. 500/- for commission of offence under Section 211 of IPC and also six months RI with fine of Rs. 500/- for commission of offence under Section 182 of IPC with default Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM 2 stipulation. All the sentences have been directed to run concurrently.
Necessary facts for disposal of present appeal in short are that present appellant (complainant therein) Mahesh alias Patua lodged a report on 05-10- 2010 at Police Station Antri against Kallu alias Kalyan, Ballu alias Balwan and Kundan Jat who were arrested in connection with murder of one Khasi Bai Kushwah due to previous enmity and on apprehension that they may be implicated in that case by appellant and on account of rivalry when the appellant was going to his agricultural field at around 09:45 in the morning through his motorcycle and passed through the house of Kamlesh Baghel which is the public way, at that time Ballu alias Balwan fired a gunshot from his 315 bore gun with an intention to kill him due to which the bullet hit at the engine of the motorcycle of the appellant. When the appellant ran from there leaving his motorcycle, Kallu alias Kalyan and Kundan Singh Jat armed with lathi rushed towards him for assaulting him and damaged his motorcycle. Ballu alias Balwan also fired two rounds but they missed the target. When appellant along with Kamlesh and Devendra tried to apprehend them near the temple, Ballu alias Balwan also fired one more round and he saved. Thereafter all of them pelted stones. The incident was witnessed by Ramsingh, Omprakash and Lakhan Baghel. On the basis of which, Crime No. 159 of 2010 was registered for offence under Section 307 read with Section 34 of IPC against the above three accused persons. Investigation was done and after completion of investigation, challan was filed before the competent Court where the above three accused persons abjured their guilt and demanded for trial. After the committal of matter, the case was sent to Sessions Court for its trial and during trial, the appellant was called for giving his evidence. He did not support the prosecution case Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM 3 before the court below as he disowned his earlier version and stated that he had not seen the accused persons causing injuries to anybody. Relying on the testimony of present appellant, the trial Court vide judgment dated 29th of November, 2018 passed in Sessions Trial No. 83 of 2012 has held that the prosecution has failed to prove its case beyond reasonable doubt, therefore, given benefit of doubt to the accused persons and acquitted them of the charge under Section 307 or 307/34 of IPC. The trial Court also directed that prosecution for perjury may be initiated against present appellant for disowning his earlier statement by which the appellant has been convicted for commission of offence under Sections 182, 195 and 211 of IPC and sentenced accordingly, as stated above, vide judgment dated 27th of September, 2022 passed by learned Third Additional Sessions Judge, Dabra, District Gwalior in Sessions No. 58 of 2019.
It is contended by learned counsel for the appellant that regarding the same incident at the same police station a cross-case on the report of accused persons therein was lodged against the present appellant and five others for commission of offence under Sections 143, 147, 307/149, 323, 323/149 of IPC. In that case, a compromise had taken place between the parties by filing application under Sections 320(1)(2) of CrPC and the appellant along with other five others were acquitted of charges under Section 143, 307/149 of IPC. It is further contended by learned counsel for the appellant that the trial Court has committed an error in passing the impugned judgment due to change of version of appellant from his police statement. It is further contended that the appellant was on bail and was in custody from 30-03-2019 to 02-04-2019 and from the date of passing of impugned judgment dated 27-09-2022 till 22-11-2022 i.e. near about two months of jail incarceration out of jail sentence awarded by the trial Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM 4 Court. Fine amount has already been deposited by the appellant. Therefore, it is prayed that the substantive jail sentence awarded to the appellant for the aforesaid offences may be reduced to the period already undergone by him.
On the other hand, State Counsel opposed the contentions and submitted that there is neither any occasion to interfere with the sentence awarded to the appellant nor any compassion or sympathy is called for in the said case.
After going through the impugned judgments as well as record as well as after hearing the arguments advanced by the learned counsel for the parties, it will be just and proper if the sentence awarded by the trial Court to the appellant for the aforesaid offences is reduced to the period already undergone by him. Accordingly, the appeal is partly allowed. While maintaining conviction of appellant for aforesaid offences, the sentence awarded to him is hereby reduced to the period already undergone by him. The appellant is on bail, therefore, his bail bond and surety bond stand discharged.
(DEEPAK KUMAR AGARWAL) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/1/2023 1:04:01 PM