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HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT, JABALPUR
SINGLE BENCH
PRESENT: HON'BLE JUSTICE SHRI N. K. GUPTA
CRIMINAL APPEAL NO.1625/1995.
Laxmi Prasad Garg
Vs.
State of Madhya Pradesh
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For the appellant : Shri H. S. Dubey, Advocate
For the respondent: Shri Akhilesh Shukla, Deputy Government
Advocate.
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Date of hearing : 28.9.2010
Date of judgment : 30.9.2010
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JUDGMENT
The appellant has preferred this appeal against the judgment dated
17.11.1995, passed by First Additional Sessions Judge, Damoh in S.T. No.
121/1990, by which he was convicted for offence punishable under
Section 326 of I.P.C. and was inflicted with a sentence of rigorous
imprisonment of three years.
2. In short the prosecution story is that on 14.10.1990, when injured
complainant Ramlal, a Constable, was coming back from his duties near
the police line, met with accused Laxmi Prasad who was his cousin.
Accused/appellant started a quarrel with the complainant and suddenly he
assaulted the complainant with a dagger (Chhura) causing him injury in
his left elbow in hand and the dagger after perforating his skin also
entered in the back of the left abdomen. In the meantime, Anand
Pachori and Guddu Dhobi came to the spot and therefore the
accused/appellant left the spot immediately. Complainant Ramlal
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immediately rushed to the Police Station Kotwali, Damoh and lodged an
FIR. He was taken to the hospital. Dr. Sachdev (P.W.1) found two
penetrating wounds on the left elbow of the complainant. One was entry
wound and another was exit wound whereas he found one entry wound
in his left abdomen. He referred the complainant Ramlal for x-ray
examination. Dr. O.P. Dubey (P.W.2) found that middle 1/3 rd of ulna
was found broken. A charge sheet was submitted for offence punishable
under Sections 341, 294, 506-B, 333 & 326 of IP.C.
3. The appellant abjured his guilt and took defence before the trial
Court that since the complainant was a Police Constable who was also a
Court Moharir in the Court of CJM, Damoh, he had lodged a false FIR
against the accused with the help of his seniors. Actually, he fell on an
angle by which injuries were caused in his left elbow and abdomen.
There was some dispute of land between both the parties and therefore,
the accused was falsely implicated in the matter. In defence, accused
has examined himself as a defence witness in the trial Court.
4. Learned Additional Sessions Judge after due consideration of
evidence adduced, acquitted the appellant for offence punishable under
Section 294, 506 and 333 of I.P.C but, convicted him for offence
punishable under Section 326 of I.P.C and inflicted the aforesaid
sentence.
5. I have heard learned counsel for both the parties.
6. Learned counsel for the appellant submits that at present appellant
is not challenging findings of the Lower Court in toto but, he is
challenging conviction under Section 326 of I.P.C because no grievous
injury was proved to be caused by the appellant to the victim. He further
submits that if assault is made by a dagger and it passes through the skin
and muscles of elbow and also causes injury in the abdomen then it is
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not possible that such blow will cause any bony injury. If dagger was
dashed to a bone and it was broken, then it was not possible that the
dagger could have crossed the bone causing through and through injury
in the skin of elbow and also pierced in the abdomen. Secondly he
submits that a grievous injury was not corresponding to the visible injuries
caused by a dagger. As per MLC report Ex.P/1, incised wound was found
on the elbow of left arm whereas Dr.Dubey (PW2) found a fracture in left
ulna in middle one third. Therefore, fracture must be three to four
inches away from that injury which was caused by the dagger.
7. Submission made by learned counsel for the appellant seems to be
acceptable. Complainant Ramlal (PW6) has lodged an FIR Ex.P/13 and
he has not made any description regarding any injury to his bone in the
FIR. Dr. Sachdeva found that there was a entry wound in left elbow of
the complainant and there was an exit wound on the elbow of the
complainant but, he did not mention that in between those two wounds
the bone was found broken. Secondly if bone of that place was broken
then it should be the lower 1/3 rd of ulna, whereas Dr. Dubey opined
that middle 1/3 rd of ulna bone was found broken. Therefore, it is clear
that fracture of ulna bone could not be caused by the alleged assault
caused by the appellant therefore, Additional Sessions Judge has
committed a mistake in holding that the appellant caused grievous injury
to the complainant. It is nowhere proved that any of the stab injury
caused to the complainant was grave.
8. At present learned counsel for the appellant does not want to
challenge the evidence regarding the incident and therefore, it is accepted
that appellant caused three injuries to the complainant by one blow of the
dagger which were simple in nature. Therefore, conviction under Section
326 of I.P.C cannot be sustained but, the appellant can be convicted for
offence under Section 324 of I.P.C which is an inferior offence of similar
nature with regard to offence punishable under Section 326 of I.P.C. In
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these circumstances, appeal of the appellant can be partly accepted and
therefore, is accepted accordingly. His conviction for offence under
Section 326 of I.P.C is quashed. He is acquitted from the charges of
offence punishable under Section 326 of I.P.C. but, he is convicted for
offence punishable under Section 324 of I.P.C under the same charge.
9. As far as sentence is concerned, learned Counsel for the appellant
submits that the incident is 20 years old, the appellant has no criminal
past. He was cousin of the complainant. He remained in custody for
more than 15 days and therefore, he should not be sent to jail for any
further punishment. Submission made by learned counsel for the
appellant is acceptable. However, the blow given by the appellant was
powerful which caused perforations in skin of the complainant on elbow
and also caused a stab injury in the abdomen. However, he faced trial in
this appeal for last 20 years and therefore, it would not be proper to send
him again to jail but, appropriate sentence of fine would be sufficient in
the interest of justice in addition to jail sentence, for a period which he
has already undergone in the custody. Therefore, it is directed that the
appellant is sentenced to jail sentence for a period which he has already
undergone in custody during the trial and appeal with a fine in sum of
Rs.10,000/- (Rupees ten thousand only); in default he has to undergo
rigorous imprisonment for a term of six months. He is directed to deposit
aforesaid fine within 3 months from today, otherwise the trial Court would
be free to execute default sentence.
10. The appeal is hereby disposed of with the aforesaid modification in
conviction and sentence.
11. The bail bonds of the appellant shall stand discharged.
(N.K.GUPTA)
JUDGE
bina
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