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2022 Supreme(MP) 474
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
RAJENDRA KUMAR (VERMA), J.
Kalu @ Shabbir, S/O Suleman – Appellant
Versus
The State Of M.P. (Madhya Pradesh) – Respondents
Criminal Appeal No. 1339 of 1999
Decided on : 20-12-2022
Advocate Appeared:
For the Appellant : SHRI RAJESH YADAV
For the Respondent: SHRI RAJESH JOSHI
The main legal point established is the consideration of mitigating circumstances and family responsibilities in sentencing decisions.
Headnote:
Cr.P.C. - Criminal Appeal - Section 374 - Offence under Section 326 of IPC - [IPC Section 326] - The court discussed the evidence and material available on record and convicted the appellant for causing grievous hurt. The appellant's sentence was reduced considering mitigating circumstances and his family responsibilities.
Fact of the Case:
The appellant was convicted for causing grievous hurt under Section 326 of IPC. The incident occurred due to a dispute regarding a field, where the appellant attacked the complainant with an axe, causing serious injuries.
Finding of the Court:
The court found the appellant guilty based on the direct testimony of witnesses and medical evidence. The appellant's sentence was reduced due to mitigating circumstances and family responsibilities.
Issues: Dispute regarding ownership of a field, credibility of witnesses, severity of injuries, and sentencing considerations.
Ratio Decidendi: The court relied on the direct testimony of witnesses and medical evidence to establish the appellant's guilt. Mitigating circumstances and family responsibilities were considered in reducing the appellant's sentence.
Final Decision: The appeal was allowed in part, and the appellant was found guilty for causing grievous hurt under Section 326 of IPC. His sentence was reduced, and he was ordered to pay compensation to the injured party.
JUDGMENT :
This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 09.09.1999 passed by the IIIrd Additional Sessions Judge, Ratlam in S.T.No.161/1998 wherein the appellant has been convicted for offence under Section 326 of IPC and sentenced to undergo R.I. for 4 years with fine of Rs.1,000/- and in default of payment of fine to further undergo four months S.I.
2. As per the prosecution story, on 01.10.1998 near about 11 A.M. in Gram Barkheda the complainant Gul Mohammad was talking to Ramju who was standing in the shop of Kailash Porwal, at that time, appellant Shabbir @ Kalu came there and said to the complainant that the field in which he took the tractor belongs to him, on refusal of the same, the appellant saying that complainant wanted to capture his field, took an axe and gave blow with it due to which the complainant fell down and appellant threatened him to kill if he reported the matter to the police. Hence, the case was registered against the appellant.
3. During investigation, medical examination of the complainant was conducted, spot map was prepared and on the memorandum under Section 27 of the Indian Evidence Act, axe was recovered. The blood stained clothes of the complainant was also recovered. The seized articles were sent to the Forensic Laboratory and after taking the statements of the witnesses the matter was committed to the Court of Judicial Magistrate First Class, Alot and thereafter received by the Court of Sessions.
4. The prosecution has examined total 13 witnesses namely Gul Mohammad (PW-1), Shafi Mohammad (PW-2), Jujhar Singh (PW-3), Hatmakhan (PW-4), Kailash (PW-5), Yakub (PW-6), Dr.S.K.Varun (PW-7), Ramju (PW-8), Dr. Prakash Upadhyay (PW-9), Mohanlal (PW-10), Bharat Kumar Yadav (PW-11), Naseebkhan (PW-12), and Ramgopal Joshi (PW-13).
The appellant/accused abjured his guilt and he took a plea that he is innocent.
5. The appellant was tried and charged under Section 326 of IPC. The learned Court below, after considering the evidence and material available on record has convicted the appellant, as stated above.
6. Learned counsel for the appellant submits that the judgment of the learned Court below is contrary to law and facts on record. The judgment is neither legal, nor proper nor correct. The learned Court below has erred in believing the prosecution witnesses and discarding the defence version. The learned Court below has erred in not appreciating the material omissions and contradictions in the statement of the prosecution witnesses. Hence prayed that the judgment of the lower Court may kindly be set aside and the appellant be acquitted.
7. Learned Government Advocate has opposed the prayer. Inviting my attention towards the conclusive paragraphs of the impugned judgment, he has submitted that the injuries caused by the appellant is serious in nature. He supported the impugned judgment by submitting that there is clear evidence against the appellant, therefore, the appeal deserves to be dismissed.
8. I have heard the learned counsel for the parties and have also perused the record.
9. The case of the prosecution is based on the direct testimony of Gulmohammad(PW-1)(Complainant/Injured), Shafi Mohammad (PW-2), father of PW-1, eye witness Kailash (PW-5), Dr.S.K.Varun (PW-7) medical officer, Dr. Prakash Upadhyay (PW-9) medical officer. The incident is stated to have taken place at 11 A.M.in front of shop of Kailash Powral (PW-5). The incident occurred due to some dispute regarding the field. The presence of the appellant was admitted by the defence in para 16 of the cross examination of Gul Mohammad (PW-1). As per defence due to quarrel between the appellant and Gulmohammad, he fell down and got hurt. Dr. Prakash Upadhyay (PW-9) examined Gul Mohammad and held as under:-
"An incised wound head mid parietal region horizontally placed 9x1 1/2 cm. bone deep clavicle injury to the bone."
10. Dr. S.K.Varun (PW-7) stated that in X-ray he found fractur
