Madhya Pradesh High Court
Mukesh Dwivedi vs The State Of Madhya Pradesh on 5 December, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2024:MPHC-JBP:60017
1 CRR-4077-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 5 th OF DECEMBER, 2024
CRIMINAL REVISION No. 4077 of 2024
MUKESH DWIVEDI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Y.M. Tiwari - Advocate for the applicant.
Shri Y.D. Yadav - GA for the State.
ORDER
This revision has been filed by the applicant being aggrieved by the judgment dated 29.7.2024 passed by the Sessions Judge, Mandla in Criminal Appeal No. 10 of 2022 whereby the applicant has been convicted under Section 323 of the Indian Penal Code and sentenced for imprisonment till rising of the Court with fine of Rs. 1000/-.
2. As per the case of the prosecution, on 31.8.2016, the complainant, who is the wife of the applicant, lodged a complaint at Police Station Pindrai, District Mandla alleging that on the same date at about 6:30 AM, the present applicant manhandled the complainant, as a result of which her upper tooth got broken and bottom tooth started wiggling. The allegations of demand of dowry were also levelled in the aforesaid complaint against the mother, father and brother of the applicant. On the basis of the aforesaid complaint, an offence under Section 498A, 323, 506 Part 2, 34 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act was registered Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 2 CRR-4077-2024 against the applicant, his mother, father and brother vide Crime No. 357 of 2016.
3 . After due investigation, the charge-sheet was filed against the accused persons before JMFC, Nainpur, District Mandla, who framed the charges under Sections 498-A, 323, 323/34, 325, 506 Part 2, 309 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act against the accused persons.
4 . The accused persons and other accused persons abjured the guilt and pleaded false implication.
5. The trial Court on due appraisal of oral and documentary evidence available on record, acquitted the mother, father and brother of the applicant of the offences under Sections 498A, 323, 323/34, 325/34 of the IPC and Section 4 of the Dowry Prohibition Act and also acquitted the applicant under Section 498A, 323/34, 506 Part 2, 309 of the IPC and Section 4 of the Dowry Prohibition Act. However, convicted the applicant under Section 325, 323 of the Indian Penal Code and sentenced him to undergo R.I. for 1 year with fine of Rs. 500/- and R.I. for 6 months with fine of Rs. 500/- respectively with default stipulations.
6 . Being aggrieved by the judgment of conviction and order of sentence passed by the trial Court, the applicant preferred an appeal before the Sessions Judge, Mandla whereby the Sessions Judge, Mandla modified the judgment of conviction and order of sentence dated 24.12.2021 passed by Judicial Magistrate First class, Nainpur, District Mandla and acquitted the applicant of the offence under Section 325 of the IPC and convicted him Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 3 CRR-4077-2024 under Section 323 of the IPC and sentenced him for imprisonment till rising of the Court with fine of Rs. 1000/- with default stipulation. Assailing the judgment passed by the appellate Court, this revision has been preferred.
7. The counsel for the applicant contends that in the present case, the appellate Court itself arrived at a conclusion that there was contradictions in the testimony of the complainant (PW-1) and her version regarding injury was totally contradictory to the description of the injury given by Dr. Surendra Varkade (PW-6). It is contended that this anomaly, which goes to the root of the prosecution's case, was discussed by the trial Court in Paragraph-13 and also by the appellate Court but both the Courts below have observed that mentioning of injury on the right side of the cheek, right hand and right side of the neck of the complainant was the bonafide human error committed by the Doctor concerned. It is also contended that the appellate Court has further observed that the injury pertaining to teeth was an old injury and the present applicant was sought to be connected with the said injury while alleging that the upper tooth of the complainant got broken as the present applicant inflicted fist blow on the mouth of the complainant. It is further contended that in the present case when the factum of injury was not supported by Dr. Surendra Varkade (PW-6), there was no occasion to convict the applicant under Section 323 of the IPC by the appellate Court. The appellate Court was required to appreciate the testimony of Dr. Surendra Varkade (PW-6) wherein he has stated that the injuries could be self inflicted. It is asserted that the appellate Court also grossly erred in arriving at the finding in Paragraph 37 that as per the MLC Form, the injuries were Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 4 CRR-4077-2024 sustained by the complainant on left cheek and left side of the neck but Dr. Surendra Varkade (PW-6) stated that the injuries were sustained by the complainant on the right side. As the appellate Court itself expressed suspicion regarding injuries pertaining to teeth as per discussion made in Paragraphs 41, 42 and 43 of the judgment of the appellate Court, the entire case of the prosecution turns automatically out to be suspicious in regard to remaining injuries, which were minor abrasions. It is submitted that in such eventuality, the judgment of conviction passed by the appellate Court is liable to be set aside and the appellant deserves to be acquitted of the offence under Section 323 of the IPC.
8 . Per contra, the counsel for the State has supported the judgment passed by the appellate Court and submitted that the appellate Court has already modified the judgment of conviction and order of sentence passed by the trial Court and has reduced the sentence of the appellant till rising of the Court. There is conviction only under Section 323 of the Indian Penal Code and the applicant has been acquitted of the offence under Section 325 of the IPC by the appellate Court. It is submitted that the appellate Court has arrived at a finding upon due analysis in regard to the injuries and upon due appreciation of testimonies of the complaint (PW-1) and Dr. Surendra Varkade (PW-6). Thus, no interference is warranted in the present revision and same is liable to be dismissed.
9. No other point is argued or pressed by the counsel for the parties. 1 0 . Heard the submissions advanced on behalf of the parties and perused the record.
Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AMNEUTRAL CITATION NO. 2024:MPHC-JBP:60017 5 CRR-4077-2024
11. On perusal of the record, it reflects that in the present case, the judgment of conviction passed by the trial Court has been modified by the appellate Court and as per the impugned judgment passed by the appellate Court, the appellant has been convicted under Section 323 of the IPC and sentenced till rising of the Court with fine of Rs.1000/- and the appellant has been acquitted of the offence under Section 325 of the IPC. Therefore, the short question, which is required to be dealt with in the present revision is as to whether the judgment of the appellate Court in regard to the conviction of the appellant under Section 323 of Cr.P.C. is sustainable or not.
12. The appellate Court in the present case has discussed the factum of the injuries, which according to the prosecution, were found on the person of the complainant (PW-1). The injuries have been discussed in Paragraph 35 of the judgment of the appellate Court. A perusal of the same reflects that there were five abrasions, two contusions and injury No. 8 reflects that the teeth of the complainant was broken. The complainant (PW-1) in her testimony stated that as a result of the incident, she had sustained injury on left side of her neck, left cheek and also on her left hand. This statement of the complainant (PW-1) is specific and contrary to the statement of the complainant (PW-1), Dr. Surendra Varkade (PW-6), who stated in his testimony that he had found the injuries on the right side of the person of the injured i.e. right side of the neck, right hand and right cheek. The trial court in Paragraph 13, concluded that such lapse regarding location of the injuries was immaterial and same was a bonafide human error. The appellate Court also in Paragraph 37 further mentioned that perhaps on account of the Doctor Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 6 CRR-4077-2024 being over burdened with heavy work, the said mistake was crept up, which was clerical and a human error.
13. To deal with the aforesaid finding so arrived at by the trial Court as well as the appellate Court, if the testimony of Dr. Surendra Varkade (PW-
6) is perused carefully, it reflects that he has stated that the injuries were sustained by the complainant on her right side of the body i.e. right side of the neck, right side of the cheek and right hand. In Paragraph 2, Dr. Surendra Varkade (PW-6), further admitted that the injuries could have been self inflicted. He further stated that the abrasion sustained by the injured could not have been caused by any hard and blunt object. It is further important to mention here that so far as injury pertaining to teeth was considered, it was clearly stated by this witness that the complainant had made complaint regarding pain in teeth and also breaking of teeth. Thus, the aforesaid testimony of Dr. Surendra Varkade (PW-6), firstly goes contrary to the MLC, which is contained in Ex. P-6, as according to the MLC report, injuries were on the left side; secondly the injuries pertaining to teeth were also found to be an old injury, which is evident from the perusal of Paragraphs 41, 42 and 43 of the judgment of the appellate Court. Therefore, when the injured was produced for the purpose of examination before the Doctor, the complainant complained about multiple injuries and one of the said injuries is found to be suspicious, as upon analysis it was concluded by the appellate Court that it was not clear whether the injury pertaining to the teeth was as a result of assault by the present applicant or not.
14. In such circumstances, the version of the complainant so put forth, Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 7 CRR-4077-2024 could not have been treated to be trustworthy. There was contradiction so far as the location of the injury was concerned. Dr. Surendra Varkade (PW-6) clearly stated that the injuries could be self inflicted. The complainant tried to implicate the present applicant while projecting that there was injury on the teeth as a result of assault. However, no injury on the mouth of the injured was found and there was no sign of any recent assault around mouth or teeth of the complainant. Thus only on the basis of other injuries i.e. contusions and abrasions, the conviction of the applicant was not sustainable.
15. The Apex Court in the case of Kapildeo Mandal v. State of Bihar, (2008) 16 SCC 99 held in Paragraphs 23 & 25 as under:-
"23. It is now well settled by a series of decisions of this Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. [See Mange v. State of Haryana [(1979) 4 SCC 349 : 1979 SCC (Cri) 985] (conviction based on sole testimony of eyewitness), State of U.P. v. Krishna Gopal [(1988) 4 SCC 302 : 1988 SCC (Cri) 928] (SCC in para 24) and Ramanand Yadav v. Prabhu Nath Jha [(2003) 12 SCC 606 : 2004 SCC (Cri) Supp 526] (SCC in para 17).] But when the court finds inconsistency in the evidence given by the eyewitnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts.
25. In Mani Ram v. State of U.P. [1994 Supp (2) SCC 289 : 1994 SCC (Cri) 1242] this Court held: (SCC p. 292, para 9) Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 8 CRR-4077-2024 "9. ... It is well settled by long series of decisions of this Court that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence this is a most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case."
16. In view of the aforesaid analysis and in the light of the aforesaid observations made by the Apex Court, in the considered view of this Court, the appellate Court fell in error in convicting the applicant under Section 323 of the Cr.P.C. inasmuch as, Dr. Surendra Varkade (PW-6) did not corroborate the version so put forth by the complainant.
17. Resultantly, the revision is allowed . The judgment dated 29.7.2024 passed by the Sessions Judge, Mandla in Criminal Appeal No. 10 of 2022 so far as it relates to the conviction of the applicant under Section 323 of the Indian Penal Code stands set aside. The applicant is acquitted of the offence under Section 323 of the Cr.P.C.
18. It is made clear that the rest part of the judgment dated 29.7.2024 passed by the Sessions Judge, Mandla in Criminal Appeal No. 10 of 2022 shall remain intact.
19. Let records of the Courts below be sent back immediately along Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:60017 9 CRR-4077-2024 with a copy of this order for compliance and necessary action.
(MANINDER S. BHATTI) JUDGE PB Signature Not Verified Signed by: PRADYUMNA BARVE Signing time: 12/10/2024 11:31:37 AM