CFb000059366 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR -•—" , CRB1INAL.APPEAL N0 ^ ;-;• ^... OF 1996 • s'c^ssa. <:• APPELLANT (in jail) : Durgesfa Agrawal aged about 24 years son of Shri Ramsahay Agrawal, resideat of Bakshi Marg> Khairagarii, district Rajnandgaon (M.P). VERSUS '•1'-. Ij ^-2-"T-€ sc: EE; uis.ieautct*N»WS< RSSPONDEI1TS !:!,.. GONVICTION ^£-£^&:^....1_ Under Section 507 of the "~""T~-~ I'.P.C. ,^ ; Ttie State of Madhya Pradesh through police statiou Khairagarh district Rajnandgaon (M.P). 3ENTENCE Rigorous imprison.'nent..for 4years and fine of Rs.1,000/=. In default of payment of fine rigorous impr-i- sonment for six months. R.IC.D.R. CRMINAL, APPE.4L UNDSR SECTION 374(2) QF THE CODE OF GRIMINAL '••M-;- •: »^/_ "s__^—-- lal'"Slhi^'.,^._~''._____.__.._.-_._____._panr:RnnRR •^' s I?/' ^y_ " '"SSl^ w^^ U! iT ingle Bench : Honble Mr. Justice Prltinker Diwal< Criminal Awsol No, _286 of 199& &upossh AQrcy^Gl. s/o ^ ^ ..^. T^r. .^ ^, Ramsahay Aqr-awal 'he State of Madhya Pradesh Smt. Hamida Siddiqui, counse! for the appeliant ihri Praveen Oas, Dy. Govt. Advocate for the C+^-i- CRIMINAL PROCEDUP JU&6WENT Present appeal arises out of the impugned judgment and order dated 30.1.1996 passed by the Additionai Sessions Judge, Khairagarh, Distt. Rajnarrdgaon in Sessions Trio.l 96/1993 convicting the Qccused/appellant under Section of the Indian Penai Code and sentencing him to undergo imprisonment for four years with fine of Rs.1,000/-, lefault of payment of fine to furi'her undergo r'igorous isonment for six months. n in about 1 Pansari accused Case of the prosecution in brief is that on 13.4.1993 G+ 11.15 pm F.I.R. (£x.P-4) was iodged by injured Premlai ?-2) alleging that on that day at about 10.45 pm the !/appe!iant along with deceased/accused ThmieshwGr came to his Hotel and demanded food. It is aileged that ispute arose betwesn h.1m and the sd/appellant, as a resuit of which deceasea/accused Thansshwcr Pandey gave him two biows of knife on his chest and stomach and, thereafter the said knife was taken by the id he too had assauited him with the said there accuse i'w,..^i.j;sNBWi" knife but whiie preventing himseif, complainant Premiai Pansari (PW-2) sustained injuries on his right pcim. Aftsr investigation challan vios filed by the police for tiie offence under Sections 307 of the Indian PenoJ Code rea.d with Sectson 25 of ths Arms Act agcinst the. present accused/appellant an.d the co- cccused Thaneshwar Pandey. However, during pendency of ths trial co-accused Thaneshwar Pandey has expired. 3. 5o as to ho!d to accused/appe!!ant guilty, prosecution has examined as many o.s 07 witnesses in support of its case. Statement of the csccused/appe!!ant was aiso rscorded under Section 313 of the Code of Criminal Pr'ocedure in which h-s d.enied the charges ieveii'ed aaainst him and pieaded his innocence and fajse impjication in the case. 4. After hearing counsel fo" the parties the tria! Court has "^l^ff* ^i/'r'udpr^/Trkrsipllrtrt'f' 'f.n^1 Tl^'i? a^^^,E^!,2iE/^i/ s.jti^'^^f; }iuU i ? i WS i 1 t'w- offence as mentioned above. Hence this appeal. Heard counsej for the parties ond perused the materia! ayailabie on record including Jud9ment impugned. Counse! for the appe!!ant submits that eyen if ths entire case of the prosecution is taken as it 's, offence under Section S07 of the Indian Penal Code is not made out Qqainst the appellant. Shs submits tho.t as per the cass of the prosecution itseif, the main injuries were caused by deceased/accused Thaneshwar Pandey ond the only injury which has been cajsea by the accused/appe!iant is on the right paim of the compiainant and at best the act attributed to him would fo.SI iin the ambit of Section 324 IPC, '^s5- ..^^:^ ?^^^^^^"5^'5' !S;a 7. On the other hand, suppor+Lng the impugned judgme-nt it has been arqued ori behaif of the State t-ho+ the monner in which the victim Premlal (PVV-2) has been assaulted by the accused/appeiiant he has rightly been convicted for the offence undsr Ssction 307 of the Indian Psnal Code. He submits that for convictinQ anv nerson unde" Sec+jon 307 of the Indian Pena! Code nature of injury hardiy matters and it is the inte.ntion which is to be seen. Victim Premld Pansari (PW-2) in his court statement has stated that he is the proprietor of a Hotel and on 13.4.1993 the present appeilant and the deceased/accused Thaneshwcr Pandey came to his hotel and. had demandsd food and have aiso demmded tiquor. He has stated thaf there was some dispute between him and the accused persons on account of which firstiy the present appeljant caught hojd h's coilar and has started abusinq hirrs and thereafter, the deceased/accuse.d Thaneshwar'Paidey took out a knife from his pocket and gave biow of the ssme on the left side of his chest and also on the !eft side of hi.s stomach. 1-fs has stated that when the third attempt was made. by accuse.d/deceased Thorieshwar Paidey to assault him, he took turn, as a resuit of which he saved himse.if from sustaining third injury, He has further stated that thereafter, accused/appsllant Durgesh Agrawa.i took the knife from the hand of deceased/accused Thaneshwar Pandey by saying that he cannot kii! the victim and then he too made assault on his stomach but he caught hoid the hand of the accused/appe!!ant but then aiso suffered injury on his right palm. He has stated that thereafter, hs was taken to the Hospitai and after lodging the report, he was treatsd in the. 4 las'SBK^aBj'i hospital. In cross-examination, this witness stood firm to the statement mad®by him in the examination-in-cjTef. Dr. Kishore Kumar Jain (PW-1) is the witness who had medically examined the victim nameiy Premial Pansari (PW-2) and had given his report Ex.P-1 has cctegorica!iy stated that victim Premia! Pansari (PW-2) had suffered fc!towing injuries;- (i) Incised wound in the size of 2" x 1/2" x bone deep in the left side of chest over 3 d 4 rib at mid clavicle bone. (ii) Incised wound in the size of 4" x 1 i "x i " deep in the right palm of the victim. (iii) A superficid cut in the size of 1 cm deep in ieft palm and bleedina was there continuously. Savana Bai (PVV-3) - w'fe of the victim Premlai has supported the statement of her husband ond has stated that the accused/appeiiant and the deceased/accused had assaulted her h.usband. Rohan Singh (PVV-4) is the po.twari who had prepared the spot map. Jaiial (PW-5) has not support-ed the prosecution case and has been declared hostile. Chhagan Dave [PW-6) - Investigating Officer has supported the prosecution case. 10. From the minute scrutiny of the evidence of the witnesses, it is clear that main injuries were. caused to the victim Premlal Pansari (PW-2) by the deceased/accused and the oniy injury which was caussd by the accused/appellant was on ths left pdm of the victim. 11. Considering the totality of the fo.cts in particular the \ ro!e at+ributed to the appel!ant, in the opinion of this Court it { wouid be proper to convict the accused/appeliant unde.r Section 324 of ths Indian Pena! Code instead of Section 307 / ir'rtsp c'f the Indian Penat Code. Accordingly th< the trial Court is modified. The sentence of-the appeil&nt is from that of 4 years to 1 year whereos the fine is maintained. Sd/- 12. Appeai th.us partlydlowed. PritinkerDiwaker [tilEJI'M