Madhya Pradesh High Court

CRA/1049/2020 of SHIV DHAKAD Vs THE STATE OF MADHYA PRADESH on 29 December 2023

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COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI

1

IN THE HIGH COURT OF MADHYA PRADESHAT INDORE

BEFOREHON'BLE SHRI JUSTICE GAJENDRA SINGHON THE 29[th] OF DECEMBER, 2023

CRIMINAL APPEAL No. 1049 of 2020

BETWEEN:-

SHIV DHAKAD S/O PREM SINGH DHAKAD, AGEDABOUT 23 YEARS, VILLAGE NARANIA PS PACHOR(MADHYA PRADESH)

.....APPELLANT

(BY MS. POORVA MAHAJAN, ADVOCATE THROUGH LEGAL AID)

AND

1.THE STATE OF MADHYA PRADESH STATIONHOUSE OFFICER THROUGH PS PACHOR, DISTT.RAJGARH (BIAORA) (MADHYA PRADESH)

2.MATHRALAL S/O BAPULAL VARMA, AGED ABOUT80 YEARS, OCCUPATION: LABOURER VILLAGENARANIA P.S. PACHOR, DIST RAJGARH (MADHYAPRADESH)80 YEARS, OCCUPATION: LABOURER VILLAGENARANIA P.S. PACHOR, DIST RAJGARH (MADHYAPRADESH)

(BY SHRI KAPIL MAHANT, PUBLIC PROSECUTOR)

.....RESPONDENTS

This appeal coming on for orders this day, th e court passed the following:

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JUDGMENT

This Criminal appeal has been filed under section 374 (2) of the Cr.P.C.being aggrieved by judgement dated 21.01.2020 passed by Special Judge andExclusive Special Judge, [SC/ST (Prevention of Atrocities) Act] Rajgarh(Biaora) in Special Case No.119/2017 whereby the appellant/accused has beenconvicted under section 323 r/w 34 of IPC and sentenced to undergo R.I. for a period of one year.

2. Facts of the case in brief are that appellant/accused was prosecutedunder Section 452, 294, 323/34, 506 Part II of IPC and Section 3(1)(r), 3(1)(s),3(2)(VA) of SC/ST (PA) Act, 1989 for an incident occurred on 31.07.2017 at07:30 PM wherein it is alleged that appellant/accused caused voluntary injury tovictim (PW-1).

3. Prosecution examined the complainant Mathuralal as PW-1, mother ofthe complainant Durgabai as PW-2, investigating officer SDOP NarendrakumarNahar as PW-3 and Medical Officer Dr. Mohit Gupta as PW-4.

4. On appreciating the prosecution evidence the trial Court acquitted theappellant/accused from charges under Section 452, 294, 506 Part II of IPC andSection 3(1)(r), 3(1)(s), 3(2)(VA) of SC/ST (PA) Act, 1989, but convicted theappellant/accused under Section 323/34 of IPC and sentenced to one year RI.

5 . Challenging the findings of conviction and sentence, this appeal hasbeen preferred mainly on the ground that the trial Court has committed error inconvicting the appellant/accused on the testimony of the prosecution witnessesand also committed error for not extending the Probation of Offenders Act,1958 to the accused/appellant and submitted the ground that whenappellant/accused has been acquitted from other charges then on the sameevidence, he cannot be convicted under Section 323/34 of the IPC also.

6. Heard with the aid of amicus curiae Ms. Poorva Mahajan, advocateand perused the record.

7. The learned Public Prosecutor for the respondent/State has supportedthe conviction and sentence.

8. Falsus in uno and falsus in omnibus does not apply fully in India andperusal of testimony of complainant Mathuralal as PW-1, mother of thecomplainant Durgabai as PW-2 and Medical Officer Dr. Mohit Gupta as PW-4

does not lead a ground to discard the testimony regarding the conviction of theaccused/appellant under Section 323/34 of IPC. So the conviction of theappellants/accused under Section 323/34 of IPC is affirmed.

9. Now we are considering on the quantum of sentence and extension of benefit of Probation of Offenders Act, 1958 to appellant/accused.

10. The trial Court has not recorded any reason not to extend the benefitof Probation of Offenders Act, 1958 to appellant/accused.

11. In this case, there is no criminal antecedent of the appellant/accused.

He is facing the trial from 2017. Looking to the nature of the incident, havingregard to the facts and circumstances of the case and the character ofappellant/accused as first offender, it is expedient to release him on probationof good conduct under section 4 of the Probation of Offenders Act, 1958.

12. The finding of the trial court regarding the sentence is modified andinstead of sentencing the appellant/accused at once it is directed thatappellant/accused be released on bail entering into bond with surety ofRs.50,000/-(Rupees Fifty Thousand Only) to the satisfaction of the trialcourt within a period of 30 days to appear and receive sentence when calledupon by the trial Court during a period of 3 years and in the meantime to keepthe peace and be of good behavior.

13. Under Section 5 of Probation Of Offenders Act, 1958 theappellants/accused shall also pay Rs.5,000/- (Rupees Five Thousand Only)to complainant Mathuralal S/o Shri Bapulal, Occ. Labour, Village Naraniya,P.S. Pachor, Dist. Rajgarh (MP) as compensation for the injury suffered forthe commission of offence. The appellant/accused shall deposit thecompensation amount within 90 days failing which the said amount shall be recovered from appellant/accused in accordance with law.

14. With the aforesaid, the criminal appeal is disposed off.

soumya

(GAJENDRA SINGH)JUDGE

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