Madhya Pradesh High Court
Dannu Dheemar vs The State Of Madhya Pradesh on 13 September, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1 Cr.R. No. 1781/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL REVISION No. 1781 OF 2023
BETWEEN:-
1. DANNU DHEEMAR S/O SHRI BALDUA
DHEEMAR, AGED ABOUT 55 YEARS, OCCUPATION:
LABOUR R/O VILLAGE LAR BANJRYA POLICE P.S.
BUDERA DISTT. TIKAMGARH (MADHYA PRADESH).
2. MUKESH DHEEMAR S/O DANNU DHEEMAR,
AGED ABOUT 35 YEARS, OCCUPATION: LABOUR
R/O VILLAGE LAR BANJRYA, POLICE P.S. BUDERA,
DISTRICT TIKAMGARH (MADHYA PRADESH).
3. JASHRATH DHEEMAR S/O SHRI DANNU
DHEEMAR, AGED ABOUT 31 YEARS, OCCUPATION:
LABOUR R/O VILLAGE LAR BANJRYA, POLICE P.S.
BUDERA, DISTRICT TIKAMGARH (MADHYA
PRADESH)
.....PETITIONERS
(BY SHRI PRADEEP KUMAR NAVERIYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION BUDERA DISTRICT TIKAMGARH
(MADHYA PRADESH)
.... RESPONDENT
(BY DINESH PRASAD PATEL - DEPUTY GOVERNMENT
ADVOCATE FOR THE STATE)
2 Cr.R. No. 1781/2023
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Reserved on : 31.08.2023
Pronounced on : 13.09.2023
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This criminal revision having been heard and reserved for order,
coming on for pronouncement this day, Justice Achal Kumar Paliwal
pronounced the following:
ORDER
This criminal revision under Section 397/401 of Cr.PC. has been preferred against the judgment dated 18.04.2023 passed by learned Sessions Judge, Tikamgarh in Criminal Appeal No.34/2022 (Dannu Dheemar and others Vs. State of MP), whereby judgment dated 18.01.2022, passed by the learned JMFC in RCT No.1300953/2014 convicting the petitioners for commission of offence under Section 325/34 of IPC and Section 323/34 of IPC and awarding them sentence of six months RI and three months RI respectively and fine of Rs.500/- and Rs. 1000/- respectively with default stipulation has been affirmed.
2. Brief facts relevant for the disposal of present revision are that on 23.04.2014 at about 6:30 in the evening, accused Dannu Dheemar, Mukesh Dheemar, Dashrath Dheemar and Bablu Dheemar were removing wires from complainant Kashiram Dheemar's field. When complainant Kashiram Dheemar asked them not to do the same, then, accused persons started abusing unanimously and when he asked them not to abuse, accused Dannu assaulted him with wooden stick over his head & he started bleeding. When complainant Kashiram Dheemar 3 Cr.R. No. 1781/2023 cried, his family members Munna, Bhugunti, Kanhaiya, Sunuba, Deshraj and Baliram came for his rescue, then, accused persons beat them also, on account of which, they also sustained injuries. While leaving the spot, they also threatened to kill. On the basis of complainant's report, FIR No. 60/2014 under Section 294, 323, 506, 34 of IPC was registered against the accused persons. After medical examination, it was found that injured Kanhaiya has sustained fracture, therefore, Section 325 of IPC was added. After investigation, charge sheet was filed against petitioners under Section 294, 323/34, 325/34 and 506-II of IPC.
3. Learned trial Court framed charges against the petitioners under Section 294, 323/34, 325/34 and 506-II of IPC. Learned trial Court vide judgment dated 18.01.2022 passed in RCT No. 1300953/2014 (State of MP Vs. Dannu Dheemar and others), after evaluation of evidence, found petitioners to have committed offence under Section 325/34 and 323/34 of IPC and sentenced them as above. Against the above judgment, petitioners filed an appeal and learned appellate Court, vide judgment dated 18.04.2023 passed in Cr.A. No. 34/2022, dismissed the appeal of petitioners and affirmed the trial Court's judgment with respect to conviction and sentence. Against this, petitioners have preferred present revision.
4. I have heard both the parties and perused the record of the case.
Scope of Revision u/s 397 & 401 of CrPC:-
5. Before analyzing the facts of the case on merits, it would be appropriate to examine the scope & ambit of criminal revision/powers of Court u/s 397 & 401 of CrPC. In this connection, I would like to 4 Cr.R. No. 1781/2023 refer decisions of Hon'ble apex court in State Vs. R. Soundirarasu , AIR 2022 SC 4218, State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand, (2004) 7 SCC 659 & Duli Chand v. Delhi Administration, (1975) 4 SCC 649 (3-Judge Bench).
6. In Duli Chand (supra),Hon'ble apex court has held as under:-
"5.........The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse. ....."
7. In R. Soundirarasu (supra),Hon'ble apex court has held as under:-
"75. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC 631: (AIR 2002 SC 107: 2002 cri LJ 225 (SC)), this Court held as under:-
"3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."
76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be 5 Cr.R. No. 1781/2023 exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge- sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure."
8. In Jagmohan Singh Kuldip Singh Anand (supra), Hon'ble apex court has held as under:-
"21.In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 Cr.P.C. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party, i.e. Criminal Appeal No. 523 of 1997 decided on 9.3.2004 [Ram Briksh v. Ambika Yadav]. That was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.
22.The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.P.C. Section 401 Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such 6 Cr.R. No. 1781/2023 inferior court."
It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401 Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 Cr.P.C., read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power."
Findings:-
9. Now in the light of above legal parameters, I will examine facts of the instant case.
10. During argument, learned counsel for the petitioners has submitted that he is not challenging the conviction part of the impugned judgment and he is arguing only on the point of sentence.
11. Grounds taken by the petitioners in the revision petition show that petitioners have challenged appellate Court's judgment mainly on the ground that the prosecution witnesses are interested witnesses and no independent witness has supported the prosecution story and there are material contradictions, omissions and discrepancies between prosecution witnesses' Court testimony and their statements recorded under Section 161 of Cr.P.C.
12. Perusal of testimonies of Kashiram Raikwar (PW-1), Munna (PW-2), Baliram Raikwar (PW-3), Sunua Dheemar (PW-4), Kanhaiya Dheemar (PW-5), Deshraj (PW-6), Bhagunti (PW-7), Sooka (PW-10), Raja Bai (PW-11) and Babawade (PW-12), including their cross- examinations, reveal that they have been extensively cross-examined on behalf of petitioners but in their cross-examination nothing has come out which would show that they are not reliable witness. Further, 7 Cr.R. No. 1781/2023 perusal of testimonies of above witnesses reveal that there are no material contradictions, omissions and discrepancies between their testimonies and statements recorded under Section 161 of Cr.P.C. It is also important to note that out of above witnesses, Kashiram Raikwar (PW-1), Baliram Raikwar (PW-3), Sunua Dheemar (PW-4), Bhagunti (PW-7), Deshraj (PW-6) and Munna (PW-2) are injured witnesses.
13. From testimony of Kashiram and FIR (Ex. P/1), it is evident that FIR has been lodged immediately after the incident and it is a named FIR, in which names of petitioners are clearly mentioned. Further, perusal of Kashiram Dheemar's testimony and FIR Ex. P/1 reveal that there are no material contradictions, omissions and discrepancies between Kashiram Dheemar's testimony in Court and report lodged by him. Thus, FIR (Ex.P/1) also corroborates testimony of Kashiram/prosecution story.
14. Testimony of Dr. Alok Chaturvedi (PW-8) and medical reports prepared by him Ex. P/2 to Ex. P/8 reveal that he has examined complainant and other injured persons on the date of incident itself and has found injuries on the person of Complainant Kashiram and other injured persons as mentioned in above medical reports and has also found fracture in third bone of right side in the chest of injured Kanaihya. Thus, above medical evidence also corroborates the prosecution story/testimonies of prosecution witnesses.
15. So far as false implication and defense of petitioners is concerned, I have gone through the cross-examinations of prosecution witnesses and petitioners' examination under Section 313 of Cr.P.C. but 8 Cr.R. No. 1781/2023 there is nothing which would show that petitioners have been falsely implicated in the case.
16. It has also to be kept in mind that at the stage of revision, revisional Court can not examine the evidence afresh and minutely and learned counsel for the petitioners have failed to point out any illegality/perversity in the finding recorded by learned appellate Court with respect to conviction of petitioners for above offences. Learned counsel for the petitioners has failed to show that learned appellate Court has not taken into consideration any substantive/ material piece of evidence or has taken into consideration any evidence, which should not have been taken into consideration.
17. Hence, in this Court's opinion, there is no illegality and perversity in the findings recorded by the appellate Court, therefore, learned appellate Court has not committed any illegality in convicting the petitioners under Section 325/34 and 323/34 of IPC. 18 So far as sentence of imprisonment is concerned, learned counsel for the petitioners has submitted that partial compromise has taken place in the instant case and petitioners are in jail since 18.04.2023 & they have completed substantive part of sentence. Therefore, they may be sentenced with period already undergone by them. Learned Courts below has convicted the petitioners for commission of offence under Section 325/34 of IPC and Section 323/34 of IPC and has imposed sentence of six months RI and three months RI respectively and fine of Rs.500/- and Rs. 1000/- respectively with default stipulation has been affirmed.
19. In view of facts and circumstances of the case, I am of the view that it would be just and proper, if the jail sentence so awarded is 9 Cr.R. No. 1781/2023 modified and reduced to the period already undergone by the petitioners so far.
20. Resultantly, this revision is partly allowed to the extent as indicated above. The impugned judgment dated 18.04.2023 passed by learned Sessions Judge, Tikamgarh in Criminal Appeal No.34/2022 (Dannu Dheemar and others Vs. State of MP), so far as it relates to conviction, is affirmed but sentence of imprisonment is modified and petitioners are sentenced to the period already undergone by them.
21. A copy of this order be sent forthwith to learned trial Court/appellate Court Tikamgarh, & concerned jail for information & necessary action.
22. Present revision petition is disposed off accordingly.
(ACHAL KUMAR PALIWAL) JUDGE Digitally L.R. signed by LALIT SINGH RANA Date: 2023.09.13 18:07:28 +05'30'