IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH th ON THE 9 OF MAY, 2024 CRIMINAL APPEAL No. 208 of 2013 BETWEEN:-

1. MUKESH AND ANR. S/O KAMAL SINGH, AGED ABOUT 32 YEARS, OCCUPATION: AGRICULTURIST GRAM AALNIYA P..S. KALAPIPAL (MADHYA PRADESH)

2. OMPRAKASH S/O HINDUSINGH , AGED ABOUT 26 YEARS, OCCUPATION: AGRICULTURIST GRAM AALNIYA P.S. KALAPIPAL DIST. SHAJAPUR (MADHYA PRADESH)

.....APPELLANTS (NONE FOR THE APPELLANTS )

AND THE STATE OF MADHYA PRADESH THROUGH P.S. AJK, SHAJAPUR (MADHYA PRADESH)

.....RESPONDENT (BY SHRI MAYANK MISHRA - PANEL LAWYER )

This appeal coming on for hearing this day, the court passed the following:

ORDER

This appeal has been filed by the appellants under Section 374 of Cr.P.C. being aggrieved by the judgment dated 28.01.2013 passed by the learned Special Judge (Atrocities), District Shajapur in S.S.T.No.53/2010. By the impugned judgment, the trial Court has convicted the appellant no.1-Mukesh for offence under Section 334 of IPC and sentenced to three counts (one month R.I each count) and appellant no.2- Omprakash for the offence under Signature Not Verified Section 334/34 of IPC and sentenced to three counts (One month R.I.each count) and under Section 25(1-B) (B) of the Arms Act and sentenced to undergo 1 year R.I. each with fine of Rs.500/-each with default stipulation. 2. Being aggrieved by the impugned judgment, the appellants filed this appeal on the ground that the trial Court failed to see that there is no evidence on record to prove that accused was guilty. There are material contradictions and omissions in the statement of the prosecution witnesses. The Investigating Officer was unable to prove that seized talwar was sealed on his part and put in proper way in Malkhana. The independent witness turned hostile and did not support the prosecution case. On these grounds, prays for setting aside the impugned judgment and acquittal of the appellant.

3. The trial Court framed charges against the appellants, which was denied by the appellants. The trial Court after recording the evidence and hearing the arguments found the appellants guilty for offence under the aforesaid Sections and convicted them as aforesaid.

4. Learned counsel for the State supported the impugned judgment and prays for dismissal of the appeal.

5. Now question arises whether the appeal of the appellants is admissible or not?

6. So far as conviction for offence under Sections 334, 334/34 of the IPC is concerned, I have gone through the evidence adduced by the prosecution and examined it minutely. From perusal of overall evidence on record, it is clearly established that learned trial Court did not commit any error in convicting the appellants under Sections 334, 334/34 of the IPC. Hence, findings recorded by the trial Court with respect to conviction are affirmed.

7. So far as sentence is concerned, appellants remained in custody Signature Not Verified from 17.06.2010 to 18.06.2010. Accused were 32 and 26 years of age at the time of incident and now they are near about 46 and 40 years old. Hence, while modifying the sentence of imprisonment, appellants are sentenced to the period already undergone by them with fine as imposed by the trial Court. The appellants are on bail. Their bail bonds stand discharged accordingly.

8. So far as offence under Section 25(1-B) (B) of Arms Act is concerned from perusal of the record, it is found that the Investigating Officer stated in examination in chief that he seized the talwar from the appellants, but he did not stated in the examination in chief that he sealed the talwar on the spot. It is true that evidence of the police officer cannot be discarded on the basis that independent witness has not supported him. It also true that evidence of police officer must be examined as independent witness and if it is found that he was doing investigation without any malicious intention then his evidence cannot be discarded on the basis that he was a police witness. Prosecution was u