Kedar vs State of Madhya Pradesh

This revision under Section 397 read with Section 401 of the Cr.P.C has been directed against the order dated 10.07.2013, passed by 2nd A.S.J, Chhatarpur, in Criminal Appeal No. 72/2011, whereby the judgment dated 08.03.2011, passed by J.M.F.C, Loudi, (Lavkushnagar) in Criminal Case No. 250/2010, convicting the petitioner for offence under Sections 325 and 323 of I.P.C and sentenced to six months simple imprisonment with fine of Rs.2,000/- and only simple imprisonment of one month respectively has been affirmed and conviction under Section 294 of I.P.C has been set aside.

The prosecution story in brief is that on 04.01.2004, at about 7 pm, the accused persons Kedar and Binda were loitering in front of the house of complainant- Madan. When the complainant- Madan asked them not to do so, the accused persons abused the complainant with obscene words and they inflicted injuries to the complainant by means of wooden stick. The complainant shouted. His wife Sushma, son Surendra came to the scene of crime and saved him. The accused allegedly inflicted injury to them. On lodging the report, the injured was sent for medical examination and after investigation, charge sheet was filed under Sections 294, 323, 325 and 506 of I.P.C.

During the trial, the co-accused Binda died, therefore, the learned trial Court pronounced the judgment on 08.03.2011 with regard to the petitioner- Kedar. The learned trial Court convicted the petitioner. The appellate Court acquitted the petitioner for offence under Section 294 of I.P.C but confirmed the conviction and sentence passed by the learned J.M.F.C for offence under Sections 325 and 323 of I.P.C and sentenced as mentioned above.

The petitioner challenging the judgment dated 10.07.2013, has filed this revision on the ground that the appellate Court did not consider the evidence in its right perspective. No independent witnesses have been examined. The complainant fell down and received grievous injury on his

waist. The medical officer has stated that he received bony injury on the ribs. The statement is not supported by medical evidence. The complainant was standing in the corner and collided with the bus. He fell down and sustained the injuries. Because he had enmity with the petitioner, he has falsely implicated the petitioner.

Perused the record.

Dr. S.S. Chourasia (PW 8) examined injured Madan and found (i) a lacerated wound 7 cm x 2 cm x skin deep on the vertex of the scalp (ii) a lacerated wound 5 cm x 2 cm x skin deep on the vertex region (iii) a lacerated wound 6 cm x 2 cm x skin deep on the left temporal region (iv) a contusion 6 cm x 3 cm on the left chest (v) a contusion 5 cm x 3 cm on the side of the chest (vi) an abrasion 1cm x 1/2 cm on right index finger.

He also examined Sushma and found three injuries:- (i) a lacerated wound 6 cm x 2 cm on the vertex of scalp (ii) a contusion 3 cm x 2 cm on the left arm (iii) a contusion 4 cm x 2 cm on the right thigh.

He also examined Surendra the son of the complainant and found (i) a lacerated wound 3cm x 2 cm on the vertex of scalp (ii) a lacerated wound 4 cm x 2 cm on the vertex of scalp and (iii) a contusion 6 cm x 2 cm on the right forearm. M.L.C reports are Ex. P/10 to Ex. P/12. The x-ray report has been examined by Dr. R.K. Sharma (PW 7).

Now it would be appropriate to examine whether these injuries have been caused by the petitioner- Kedar and accused Binda. According to Madan (PW 1), he received three injuries on the head and when he tried to save himself, he also received injury on the finger of the right hand.

According to him when his wife Sushma and son Surendra came to his rescue, they were also beaten by the accused persons with the help of wooden sticks. His wife and son also received injuries, which have been corroborated by the medical evidence. He lodged the report Ex. P/1 at Police Station Loudi, (Lavakushnagar) on the same day. Therefore, the prompt F.I.R supported by the oral evidence and the medical documents can be relied upon.

Evidence of Surendra (PW 2) and Sushma (PW 3) also corroborate the evidence of Madan (PW 1). Asha (PW 4) has supported the prosecution story. Asha (PW 4) is the daughter of complainant and Abhilash (PW 5) another daughter of complainant have also supported the prosecution story. The statements of Asha (PW 4) and Abhilash (PW 5), medical evidence and the prompt F.I.R are sufficient to establish the offence though lathi (wooden stick) has not been seized by the police or even if seized has not been proved.

The lathi which has been seized from the accused persons by seizure memo Ex. P/3 and P/4 also confirm the prosecution story. The complainant- Madan has stated that he received fracture above the waist and as per the medical officer, the fracture has been found on the ribs.

The petitioner is an old man, labourer and of village background. His statement was recorded in the court on 05.07.2008 after four and half years of the incident. Therefore, contradiction is bound to occur. This also indicates there was remote possibility of any tutoring.

Kedar (DW 1) has been examined as defence witness. Kedar is the son of Binda who was the co-accused and died during the trial.

According to Kedar, the petitioner came armed with axe, but the statement of Kedar cannot be believed without suspicion. Though on the report of Binda, the criminal case was initiated against Munna but that itself cannot wash away the evidence available on record and the medical reports.

For the reasons mentioned above, it would be appropriate to mention that the injury received by the complainant, his wife and son which are simple in nature are because of the voluntarily causing injuries by the petitioner- Kedar and deceased/accused Binda. Similarly, the grievous bony injury on the middle finger of the complainant- Madan.

The conviction by the Courts below are, therefore, called for any interference. So far as the sentence part is concerned, it would be appropriate to consider that the incident took place on 04.01.2004, which is about fourteen years. There was a counter case. The grievous injury was on the middle finger and not on any vital part of the body.

Keeping in view that the offence allegedly was committed on 04.01.2004, the petitioner- Kedar had suffered the rigour of the trial as well as the appeal. The petitioner is in late 40''s and is well settled in his life. The petitioner was sent to jail on 10.07.2013 and was released on 07.09.2013, therefore, he remained in custody for about two months, however, sending him to jail immediately would not be proper.

Following the principle of Ramesh Kumar @ Babla Vs. State of Punjab, 2016 SAR (CRI) 669, as the petitioner appears to be almost 40 years of age and fully settled in life, ends of justice would be met by granting benefit of Probation of Offenders Act to the petitioner.

In view of the aforesaid, it is directed that the petitioners be released on executing a bond of Rs.30,000/- (Rupees Thirty Thousand Only) before the trial Court within thirty days from today to appear and receive sentence of simple imprisonment for six months when called upon to do so and in the mean time to keep the peace and be of good behaviour.

With the above modification in conviction and sentence, the revision is allowed in part.