1 HIGH COURT OF MADHYA PRADESH ; JABALPUR Cr.R.No. 768/2010 Lakhan Vs. State of M.P. For the Applicant : Shri B.J.Chourasia, Advocate. For the Respondent : Smt Nirmala Nayak, GA ORDER (oral) (23/09/2011) Per : U.C.Maheshwari J. This revision is directed on behalf of the applicant/accused under section 397/401 of the Cr.P.C, being aggrieved by the judgment dated 27.4.2009 passed by the Sessions Judge, Chhatarpur in Cr.A.No.139/09 whereby dismissing his appeal, the judgment dated 26.6.09 passed by the JMFC, Chhatarpur in Cr.C.No.1607/08 convicting and sentencing him for the offence under section 452 and 326 of the IPC with a direction to undergo RI one year with fine of Rs.500/- separately in such sections, has been affirmed. 2. The short facts of the case necessary to adjudicate this revision are that on 23.10.98, the present applicant went to the house of victim Rajola where she was all-alone. After opening the door of her house, he went to the upper story of the same where after some discussion with the victim who was his first wife, he gave the blow of Axe on her by which she sustained some injury in her palm then another blow was also given by which she sustained some injury on the left shoulder and he also caused biting injury on her nose. On lodging the report by the victim at Police station Khajuraho a crime was registered against the applicant at police station Khajuraho for the offence under section 452,323 and 506-B of the 2 IPC. The victim was sent to the hospital where her MLC report was prepared. On completion of the investigation, the applicant was charge sheeted for the offence under section 452,323 and 506-B of the IPC. On framing the charge of section 452,326,324 and 506-B of the IPC, the applicant abjured the guilt, on which the evidence was recorded and on appreciation of the same, he was convicted and sentenced as stated above. On filing the appeal, the same was dismissed, on which, the applicant has come to this court with this revision. 3. Shri Chourasia, learned counsel for the applicant without challenging the findings of the courts below holding the applicant responsible for the alleged incident, made his limited submission saying that in view of the nature of the injuries sustained by the applicant in the alleged incident which has been stated by Dr.Pankaj Rastogi (PW 6) in his deposition, the applicant could not be convicted under section 326 of the IPC and, in any case, this was not the case of more than section 324 of the IPC besides the section 452 of the IPC. Pursuant to it, he also said that looking to the pendency of this litigation since long and the disputed relationship between the parties, the jail sentence of the applicant imposed by the courts below, considering his argument on modification of the aforesaid offence in the matter, the same be reduced upto the period for which he has already undergone. In this respect he said that during pendency of the trial, the applicant remained in judicial custody between 25.10.98 to 3.12.98 and 24.2.09 to 25.2.2009 near about 42 days and after passing the impugned judgment by the appellate court on 27.4.2010 till passing the order of suspension of jail sentence on 14.5.2010, he remained in jail near about 19 days. Accordingly, he has suffered more than two months of the jail custody and prayed to reduce the jail sentence till this extent by allowing this revision. 4. On the other hand, responding the aforesaid argument Smt Nirmala Nayak, 3 GA by justifying the impugned judgments submits that the approach of the courts below holding conviction against the applicant under section 326 of the IPC, is based on proper appreciation of the evidence and it does not require any interference at this stage. In continuation she also said that in any case, in the available circumstances, the applicant does not deserve either for modification of the offence or for reduction of the jail sentence awarded by the courts below and prayed for dismissal of this revision. 5. Having heard the counsel, keeping in view their arguments, I have carefully gone through the record along with the impugned judgments. The approach of the courts below holding responsible to the applicant for the alleged incident is based on proper appreciation of the evidence led by the prosecution, hence such findings does not require any interference at this stage. So till this extent, the impugned judgments are hereby affirmed. In such premises, the conviction of the applicant under section 452 of the IPC is also affirmed. 6. So far modification of conviction of the applicant from the charge of section 326 of the IPC is concerned, this court has to examine the evidence in the light of the injuries sustained by the victim and stated by Dr.Pankaj Rastogi (PW 6) by proving the MLC report (Ex.P/2) of such victim Smt Rajola. On medical examination the following injuries were found on the person of the victim. The same are stated in the MLC report (Ex.P/2) as follows :- “1. One lacerated wound area external part of nasal to tip of nose size 1.5 cm x 0.5cm x skin deep produced by hard and blunt object, grievous in nature. 2. One lacerated wound area left palm below the base of middle and ring finger size 3 cm in length x 0.5 in width and skin deep produced by hard and blunt object, simple in nature. 3. Reddish contusion area left shoulder region size 2cm x 1cm. Reddish in color produced by hard and blunt object, simple in nature. 4. one contusion area left ring toe size 1 cm x skin 4 deep x 0.5 cm in width produced by hard and blunt object simple in nature. 5. Pain in both legs but no fresh injury external seen except tenderness present.” 7. It is apparent fact on record that in respect of any of the aforesaid injury neither x-ray plate nor x-ray report, has been proved on record. In the lack of it, it could not be assumed that any of the aforesaid lacerated wound or other injuries was grievous in nature or the same was caused by any hard and sharp weapon. Thus, in such premises, the alleged injury No.1, in the available circumstances, could be treated to be simple wound caused by the applicant by biting through his teeth and in such premises the same is punishable under section 324 of the IPC. As such, in view of the available evidence any of the aforesaid injury including the injury of the nose, could not be treated to be grievous injury defined under section 320 of the IPC. It is also noted that in entire in-chief of the aforesaid doctor, he has not stated anything showing that due to the alleged injury, any disfiguration on the face of the victim had taken place. In such premises, I am of the considered view that the courts below have committed error in holding conviction and sentence against the applicant under section 326 of the IPC. Consequently, the same is set aside and instead it, the applicant is held guilty for the offence under section 324 of the IPC. 8. Coming to consider the other prayer of the applicant's counsel for reduction of the jail sentence under section 452 of the IPC and also for giving lesser punishment under section 324 of the IPC are concerned, I have found some substance in it. Looking to the nature of the injuries and the earlier relationship between the applicant and the victim and also taking into consideration that the applicant is facing the mental agony of the present litigation since last ten years, I deem fit to reduce his jail sentence imposed under section 452 of the IPC upto the 5 period for which he has already undergone either in pendency of the trial or subsequent to the impugned judgment of the appellate court till passing the order by this court for suspension of the jail sentence as stated above. Simultaneously, in section 324 of the IPC, I deem fit to punish him with the aforesaid same jail punishment for which he has already undergone but with fine of Rs.500/-. 9. Therefore, by affirming the conviction under section 452 of the IPC, this revision is allowed in part and the conviction and sentence of the applicant under section 326 IPC for which is hereby set aside. Instead it, he is held guilty for the offence under section 324 of the IPC and he is punished with the jail sentence for the period for which he has already undergone with fine of Rs.500/- as stated above. In default of payment of fine amount, he shall suffer further SI one month. Simultaneously, the punishment awarded against the applicant under section 452 IPC is also reduced upto the period for which he has already undergone by maintaining the amount of fine in such section. However, it is made clear that the amount of fine imposed on the applicant under section 326 IPC if deposited then the same shall be adjusted in the aforesaid imposed fine of section 324 IPC. 10. The revision is allowed in part as indicated above. (U.C.Maheshwari) Judge MKL 6