IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA ON THE 03^rd OF JANUARY, 2024 CRIMINAL APPEAL No.1222 of 2008 BETWEEN:-

BHOJ KUMAR S/O TEJRAM, AGED ABOUT 36 YEARS, R/O VILLAGE MOHADI, MANGLE GAON KA TOLA, P.S. KATANGI, DISTRICT BALAGHAT (MADHYA PRADESH)

.....APPELLANT (BY SHRI UMESH TRIVEDI - ADVOCATE)

AND THE STATE OF MADHYA PRADESH .....RESPONDENT (BY SHRI SAURABH SHUKLA - PANEL LAWYER)

……………………………………………………………………………………………

"Reserved on : 14/12/2023" "Pronounced on : 03/01/2024"

This appeal having been heard and reserved for judgment, coming on for pronouncement this day, the court passed the following:

J U D G M E N T

This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 31/05/2008 passed by Special Judge (The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act) in Special Sessions Case No.34/2007, by which appellant has been convicted and sentenced for the following offences:-

Both the sentences shall run concurrently.

2. Facts necessary for disposal of present appeal in short are that on 26/04/2007 at about 5:30 PM, complainant Yuvraj was returning back to his home. As soon as he reached in front of the house of appellant, it is alleged that appellant and his son (juvenile) started abusing him and assaulted him by fist and blows as well as lathi and also extended a threat to his life. As a result, complainant sustained simple injuries. The motorcycle of complainant was also set on fire by appellant. The incident was witnessed by Jhanaklal, Bhuwanlal, Sewakram and others who intervened in the matter. MLC of the complainant was got done. Damage panchnama of the motorcycle was prepared. Since co-accused was juvenile, therefore charge sheet was filed against him before Juvenile Justice Board. Police filed a charge-sheet against appellant for offence under Sections 294, 324, 506B, 435, 34 of IPC and under Section 3(1)(10) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

3. The Trial Court by order dated 03/07/2007 framed charges against appellant under Sections 323, 323/34, 294, 435 of IPC and under Section 3(1)(10) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

4. Appellant abjured his guilt and pleaded not guilty.

5. Prosecution examined Kishore (PW-1), Jhanaklal (PW-2), Sewakram (PW-3), Yuvraj (PW-4), Dr. D.K. Raut (PW-5), Laxmichand (PW-6), Bablu @ Deepak (PW-7), Bhuwanlal (PW-8), Santosh Kumar Mahto (PW-9), Dr. Pankaj Dubey (PW-10) and V.N. Paraste (PW-11).

Appellant did not examine any witness in his defence.

6. Trial Court by the impugned judgment and sentence, acquitted the appellant for offence under Sections 294, 323/34 of IPC and under Section 3(1)(10) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and convicted him for offence under Sections 323, 435 of IPC.

7. Challenging the judgment and sentence passed by Court below, it is submitted by counsel for appellant that he does not wish to challenge the conviction of appellant but his sentence may be reduced to the period already undergone by him.

8. Per contra, appeal is vehemently opposed by counsel for the State.

9. Heard learned counsel for the parties.

10. Although appellant has not challenged his conviction, but Supreme Court in the case of Nagpal Traders Vs. Davinder Singh reported in (2017) 11 SCC 431 has held that unless and until merits of the case are considered, Court should not interfere with the quantum of sentence. Accordingly, merits of the case shall be taken into consideration.

11. Kishore (PW-1) is the seizure witness. Jhanaklal (PW-2) had stated in his examination-in-chief that appellant had set the motorcycle on fire but in cross-examination, he admitted that he do not know as to how the motorcycle got burnt. Thus, it is clear that he cannot b