Madhya Pradesh High Court
Shiv Kumar Mishra vs The State Of Madhya Pradesh on 5 March, 2015
HIGH COURT OF MADHYA PRADESH JABALPUR
Criminal Revision No.2050/2013
Shiv Kumar Mishra
Vs.
State of Madhya Pradesh
Criminal Revision No.2482/2013
Satish Dubey
Vs.
Dinesh Kumar and others
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Present : Hon'ble Shri Justice N.K. Gupta.
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In Criminal Revision No.2050/2013:-
Shri Parag S. Chaturvedi, counsel for the applicant.
Shri Akshay Namdeo, Public Prosecutor counsel for
the respondent/State.
Shri G.S. Rajpoot, counsel for the objector.
In Criminal Revision No.2482/2013:-
Shri G.S. Rajpoot, counsel for the applicant.
Shri Parag S. Chaturvedi counsel for the respondent
nos.1 to 3.
Shri Akshay Namdeo, Public Prosecutor counsel for
the respondent no.4/State.
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2 Cr. R. Nos.2050/13 & 2482/2013
ORDER
(Passed on 5th day of March, 2015) Both the revisions are connected with the common judgments dated 11.10.2011 passed by the JMFC, Panna in Criminal Case No.1512/2007 and judgment dated 25.9.2013 passed by the First Additional Sessions Judge to the Court of First Additional Sessions Judge, Panna in Criminal Appeal No.168/2011 therefore, both of them are decided by the present common order.
2. The applicant of criminal revision no.2050/2013 has challenged the aforesaid judgments, whereby he has been convicted of offence under Sections 294 & 325/34 of the IPC and sentenced to the jail sentence of till rising of the Court and the jail sentence of till rising of the Court with fine of Rs.1,000/-.
3. The applicant of criminal revision no.2482/2013 has filed the present revision against the aforesaid judgments because a lesser sentence has been passed by the appellate Court.
4. Facts of the case in short are that on 5.9.2007 the victim Satish Kumar Dubey (PW-5) was standing in his shop situated at Panna. The applicant Shiv Kumar Mishra 3 Cr. R. Nos.2050/13 & 2482/2013 alongwith other accused persons came to his shop and abused him with obscene words. Dinesh Dubey had an axe in his hand and assaulted the complainant Satish Dubey with blunt side of axe causing a grave injury and other parts of his body. He fell down in a Gatar for two times. When he came out from the Gatar, the applicants Shiv Kumar and Smt. Geeta Dubey pushed him again in the Gatar therefore, he sustained some injuries. Pramod Dubey (PW-1) brother of the victim had lodged the FIR Ex.P/1 at Police Station Kotwali, Panna. The victim Satish Dubey was taken to the hospital for his medico legal examination. Dr. Rajesh Shrivastava (PW-3) examined the victim Satish Dubey and gave his report Ex.P/3. He found four injuries to the victim Satish and he was referred for x- ray examination. Dr. A.G. Vinchurkar (PW-4) after radiological examination of the victim Satish Dubey, gave his report Ex.P/4. He found a fracture of right humerus bone to the victim Satish Dubey. After due investigation, the charge sheet was filed.
5. The applicant and other accused persons abjured their guilt. They took a plea that actually, Satish and his companions were the assailants and they 4 Cr. R. Nos.2050/13 & 2482/2013 assaulted Smt Saraswati, Dinesh Dubey, Laxmi Dubey and Himanshu Dubey. Thereafter, The applicant and other persons saved the victims. In defence, Anantram (DW-1), Awadhesh Kumar Kushwaha (DW-2), Dinesh Dubey (DW-3) and Shiv Kumar Pandey (DW-4) have been examined.
6. The JMFC, Panna after considering the evidence adduced by the parties, convicted the applicant Shiv Kumar Mishra and other accused persons for the offences under Sections 294 & 325 or 325/34 of the IPC and sentenced to one month S.I. and one year R.I. with fine of Rs.500/- respectively. In appeal, the appellate Court confirmed the conviction but sentence was reduced. The applicant and other accused persons were sentenced for the offence under Section 294 of the IPC with the jail sentence of till rising of the Court and for the offence under Sections 325 or 325/34 of the IPC, they were sentenced with jail sentence of till rising of the Court with fine of Rs.1,000/-.
7. I have heard the learned counsel for the parties at length.
8. Learned counsel for the respondents in criminal 5 Cr. R. Nos.2050/13 & 2482/2013 revision no.2482/2013 has informed that the respondent Dinesh Dubey and Geeta Dubey have filed a Criminal Revision No.2279/2013, which was decided by the Single Bench of this Court on 9.12.2013 in which the conviction was maintained but sentence was further diluted. The respondent Dinesh Dubey and Geeta Dubey were sentenced to fine of Rs.500/- for the offence under Section 294 of the IPC and fine of Rs.500/- for the offence under Section 325 of the IPC. Since the competent Court has considered about the sentences imposed upon the respondent nos.1 & 2 in Criminal Revision No.2279/2013 therefore, in the Criminal Revision No.2482/2013, case of the respondent nos.1 & 2 cannot be considered afresh. Hence, revision filed by the applicant Satish Dubey shall be treated as stand dismissed against the respondent nos.1 and 2.
9. So far as the case of Shiv Kumar Mishra, the respondent no.3 and the applicant in Criminal Revision No.2050/2013 is concerned, he has also challenged the conviction, though there is a concurrent opinion given by the Courts below. It would be apparent from the evidence given by Satish Dubey (PW-5) that he did not state about 6 Cr. R. Nos.2050/13 & 2482/2013 the words told by the applicant Shiv Kumar Mishra. Other eyewitnesses like Heeralal (PW-2), Pramod Dubey (PW-1) did not explain about the words told by the applicant Shiv Kumar Mishra. If the words were not specifically mentioned by these witnesses told by the applicant Shiv Kumar Mishra then, the Courts below could not observe that the applicant Shiv Kumar Mishra has uttered the obscene words. It is the duty of the Court to assess as to whether some abuses told by the accused were obscene or not. If the applicant Shiv Kumar Mishra has uttered filthy abuses then, he could not be convicted of the offence under Section 294 of the IPC. Hence, it would be apparent from the evidence of eyewitnesses that the Courts below have committed an error in convicting the applicant Shiv Kumar Mishra for the offence under Section 294 of the IPC and the findings of the Courts below in this context are perverse therefore, an interference can be done.
10. If the evidence given by the eyewitnesses namely Pramod (PW-1), Heeralal (PW-2), Satish Kumar (PW-5) and Feran Singh (PW-7) is examined then, it would be apparent that the accused Dinesh Dubey assaulted the victim Satish Dubey by back of an axe. At the time of 7 Cr. R. Nos.2050/13 & 2482/2013 assault, nobody knew that the victim Satish Dubey sustained a grave injury. The victim Satish Dubey sustained a fracture in his right humerus bone due to assault caused by the accused Dinesh and therefore, it is apparent that the applicant Shiv Kumar Mishra did not cause any grave injury to the victim Satish Dubey.
11. Though, the accused Dinesh Dubey had a deadly weapon but he did not use the sharp edge of axe and therefore, he did not intend to cause any fatal injury to the victim Satish Dubey and certainly, by the action of accused Dinesh Dubey, the co-accused could not understand that he would cause a grave injury. Hence, if the applicant Shiv Kumar Mishra had participated in the crime but he did not know that the co-accused would cause a grave injury to the victim Satish Dubey hence, common intention of the applicant Shiv Kumar Mishra cannot be presumed with the co-accused Dinesh Dubey for the offence under Section 325 of the IPC and therefore, the applicant Shiv Kumar Mishra cannot be convicted of offence under Section 325 of the IPC with the help of Section 34 of the IPC. According to his common intention, he thought that the co-accused Dinesh Dubey would 8 Cr. R. Nos.2050/13 & 2482/2013 assault the victim Satish Kumar Dubey causing a simple injury because he did not use the sharp side of the weapon. The intention of the applicant Shiv Kumar Mishra could be at the most of offence under Section 323 of the IPC. Hence, it was for the Courts below not to convict the applicant Shiv Kumar Mishra for the offence under Section 325/34 of the IPC, whereas he could be convicted only for the offence under Section 323 of the IPC.
12. So far as the sentence is concerned, it is apparent that the applicant Shiv Kumar Mishra had pushed the victim Satish Kumar Dubey in the Gatar causing a simple injury and therefore, his offence is not so grave. It is also submitted by the learned counsel for the applicant Satish Kumar Mishra that the applicant is a government servant and if he is sentenced with the jail sentence then, he may lose his job. A reliance has been placed on the judgment passed by the Hon'ble Apex Court in the case of "Rajbir Vs. State of Haryana" [AIR 1985 SC 1278], in which in such a position, the accused was released on probation. Looking to the overt act of the applicant Shiv Kumar Mishra, he is a government servant and also that he was first offender, it would be proper that 9 Cr. R. Nos.2050/13 & 2482/2013 he may be released on probation.
13. On the basis of aforesaid discussion, the revision filed by the applicant Satish Dubey cannot be accepted. The sentence imposed upon the applicant Shiv Kumar Mishra cannot be enhanced. On the contrary, his conviction of the offence under Sections 325/34 and 294 of the IPC should be set aside. Hence, the criminal revision no.2482/2013 filed by the applicant Satish Dubey is hereby dismissed, whereas the criminal revision no.2050/2013 filed by the applicant Shiv Kumar Mishra is hereby partly allowed. His conviction for the offences under Sections 294 & 325/34 of the IPC are hereby set aside. He is acquitted from the aforesaid charges. However, in the head of charges of Sections 325/34 of the IPC, he is convicted for the offence under Sections 323/34 of the IPC and instead of giving any sentence, it is directed that he be released on probation after due admonition under Section 3 of the Probation of Offenders Act.
14. At present, the applicant Shiv Kumar Mishra is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged.
10 Cr. R. Nos.2050/13 & 2482/2013
15. Copy of the order be sent to the trial Court as well as appellate Court alongwith their records and for information.
(N.K. GUPTA) JUDGE 05.03.2015 pnkj