Dwarika Prasad and others vs State of MP

The applicants have called in question the judgment dated 17.8.2016 passed in Criminal Appeal No. 27/2016, by which the appellate Court (Addl. Sessions Judge), Seondha, District Datia has modified the judgment of sentence passed against the applicants, however judgment of conviction has been affirmed.

Briefly stated the facts are that on 19.12.2008 at about 9.30 am the present applicants are alleged to have dumped waste material in the drainage canal in front of the complainant''s house for the purpose of making it convenient to cross the said drainage canal. On account of this act of the applicants, the complainant objected by stating that it will cause stench making it difficult for him to reside in the house. Due to this, a confrontation occurred between the applicants and the complainant leading to scuffle in which the complainant Matadeen and his son Lakhan sustained injuries including the injury on the head of complainant Matadeen caused by applicant No.3-Gopal by sharp cutting object. This incident was witnessed by Laxman Bundela, Balram Bundela and

several other persons in the locality and eventually the police report was lodged which is Ex.P/5. After completion of investigation, police has filed charge sheet before the competent Court.

The charges were framed against the applicants for the offence punishable under Sections 294, 323, 323 / 34, 324, 324 / 34 and 506-B of IPC. Consequently, the prosecution witnesses were examined, although one of the witnesses, namely, Balram did not support the prosecution story and testimony of complainant Matadin was not recorded. Further, the defence put on by the applicant was that the complainant was the aggressor and the applicants had also lodged a report, in response to which the FIR in question was lodged. The trial Court after conclusion of evidence pronounced the judgment dated 9.2.2016 in Criminal Case No.215/2009 and concluded that the applicants are guilty of committing offences punishable under Sections 324, 323 read with Section 34 IPC and pronounced the sentence of three moths RI with respect to the applicants No.1,2 and 4 with a fine of Rs.1000/- along with default stipulation that in case of non-deposit of fine, these applicants will undergo an additional one month RI. Further, the applicant No.3 was convicted for the offence punishable under Section 324 IPC and was sentenced to one year RI with fine of Rs.1500/- with a default stipulation of one month additional imprisonment.

This judgment of conviction was challenged by filing an appeal under Section 374 CrPC, in which the judgment was passed on 17.8.2016 whereby the appellate Court has maintained the conviction of the

applicants but has modified the judgment of sentence with a direction to pay fine only as imposed by the trial Court. This judgment is subject matter of challenge in the instant revision application.

Learned counsel for the applicants has invited attention of this Court to the testimony of PW3-Anand Uniya, who is a doctor, to emphasize on the point that the injury which was inflicted on the head of injured Lakhan can be caused on account of accident with a tractor, therefore, the courts below erred in convicting the applicant No.3 for the offence punishable under Section 324 IPC. It was further submitted that complainant Matadeen was the aggressor and since his testimony was not recorded, the prosecution story cannot be treated to be proved. Further, the other prosecution witnesses are not independent making them unreliable. It was also pointed out that the FIR in question was lodged as a counter case to escape from the offence punishable in furtherance to the FIR lodged by the applicants, therefore, the judgment of conviction is unsustainable in law.

On the contrary, learned counsel for the respondent/State pointed out that once the defence of the applicants is that the FIR in question was lodged as a counter-blast, the same would also mean that the applicants are admitting to the occurrence of the said incident. The trial Court has meticulously examined the material and the appellate Court has pronounced the well-reasoned judgment leaving the scope of interference by the High Court. Thus, it was contended that the instant revision application must fail.

Having considered the rival contentions and perused the record, this Court is of the considered view that the contention of the respondent has much force as the perusal of the evidence establishes the occurrence of the incident and since the injuries were sustained by injured Lakhan, which included the injury on the head, the incident cannot be ignored. Further, the observation of the trial Court with respect to the testimony of the doctor cannot be found faulted with as the doctor''s opinion is to be considered in the context of the statement of the complainant, which does not mean that the entire prosecution story is to be disbelieved because the incident has taken place in open surrounding and there were several witnesses to it. With regard to the contention that this matter is counter blast, suffice it to observe that the courts below have examined this aspect and the appellate Court has modified the judgment of sentence considering that the parties to the incident are resident of same village and are related.

It is anyways a trite position of law, as has been held by the Hon''ble Supreme Court in State of Maharashtra vs. Sujay Mangesh Poyarekar, (2008) 9 SCC 475, that the revisional jurisdiction of the High Court is to be exercised sparingly and only in exceptional cases. A revisional Court cannot convert itself into a regular Court of Appeal.

With the aforesaid observation, the instant revision application fails and is hereby dismissed.