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MAUSIYA @ IMRAT LODHI V/S STATE OF MADHYA PRADESH, decided on Thursday, January 29, 2015.
[ In the High Court of Madhya Pradesh, Criminal Appeal No. 2404 of 2009. ] 29/01/2015
Judge(s) : N.K. GUPTA
Advocate(s) : Madan Singh. Akshay Namdeo, Panel Lawyer.
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    1. The appellant has preferred the present appeal being aggrieved with the judgment dated 10.12.2009 passed by the Special Judge under SC/ST (Prevention of Atrocities) Act Chhatarpur in Special Case No.55/2008 whereby the appellant was convicted of the offence punishable under Sections 323 323/34 and 452 of the IPC and sentenced to six months R.I. with fine of Rs.500/- for each offence. It was also directed that the sentences shall run concurrently.2. Facts of the case in short are that on 15.2.2008 at about 8:00 p.m. Nathua Basore was present at the house of one Santosh situated at village Sendhpa (Police Station Bada Malhara District Chhatarpur). The appellant alongwith co-accused Makhan went inside the house after preparation of causing hurt and assaulted Shakun Bai Uma Bai Pan Bai Nathua and Santosh causing simple injuries to them. After due investigation a charge sheet was filed and matter was tried by the Special Court under SC/ST (Prevention of Atrocities) Act (hereinafter it would be referred as 'the Special Act').3. The appellant abjured his guilt. He did not take any specific plea in defence but he has stated that he was falsely implicated in the matter however no defence evidence was adduced.4. The Special Judge after considering the prosecution's evidence acquitted the appellant for the offence under Sections 294 506 (Part-II) of the IPC and five counts of charges of Section 3(1)(x) of the Special Act. He has also acquitted the appellant of the offence under Sections 323 and 323/34 of the IPC for the victims Nathua Uma and Santosh. However for his overt act relating to Pan Bai and Shakun Bai he was convicted of the offence under Sections 323/34 and 323 of the IPC. Also he was convicted of the offence under Section 452 of the IPC and was sentenced as mentioned above.5. Since no advocate is appearing for the appellant since long therefore Shri Madan Singh Advocate who has a wide experience of criminal side was appointed by the High Court Legal Services Authority on behalf of the appellant. Thereafter I have heard the learned counsel for the parties.6. The FIR Ex.P/1 was lodged by the complainant Nathua (PW-1) who partly turned hostile. He could not state that who assaulted him. However Shakun Bai (PW-3) and Pan Bai (PW-4) have stated that the appellant assaulted them and the co-accused Makhan Lodhi had also assaulted the victim Shakun Bai. The testimony of these two witnesses is duly corroborated by the witnesses Uma Bai (PW-2) and Santosh (PW-7). Inspector P.C. Tekam (PW-9) has proved the FIR Ex.P/1 which was lodged soon after the incident in which the overt act of the appellant was narrated that he caused hurt to the victims Pan Bai and Shakun Bai. Dr. K.P. Bamoriya (PW-10) examined Shakun Bai and gave his report Ex.P/17. He found a contusion on her left shoulder and she was complaining of pain on her back and right calf. Similarly Dr. Bamoriya examined the victim Pan Bai and gave his report Ex.P/19. A contusion was found on her left thigh.7. The testimony of Pan Bai and Shakun Bai was duly corroborated by other eyewitnesses timely lodged FIR and medical reports therefore it was proved beyond doubt that the appellant had voluntarily caused hurt to the victim Pan Bai and he had common intention with the co-accused in voluntarily causing hurt to the victim Shakun Bai. The Special Judge has rightly convicted the appellant of the offence under Sections 323 or 323/34 of the IPC.8. It would be apparent from the evidence that the appellant and the co-accused assaulted 4-5 persons after entering in the house of Santosh and their intention to enter in the house was clear that they had prepared to cause injuries to the various victims in the house. The overt act of the appellant falls within the purview of offence of house trespass under Section 452 of the IPC. The trial Court has rightly convicted the appellant of the offence under Section 452 of the IPC.9. So far as the sentence is concerned it appears that the trial Court has imposed the sentence of six months for each offences which was to run concurrently and therefore in all the sentence of six months was granted. The offence committed by the appellant is not so grave because he did not use any weapon in causing hurt to the victims. The appellant has deposited the fine amount before the trial Court. However the trial Court has issued a certificate under Section 428 of the Cr.P.C. that the appellant remained in the custody during the trial for six days. If the entire story of crime is considered then the co-accused Makhan Lodhi was the main accused whereas the appellant assaulted victim Pan Bai and Shakun Bai in a superficial manner. The trial Court has imposed an appropriate fine upon the appellant and a compensation of Rs.500/- each was granted to Shakun Bai and Pan Bai. The appellant was the first offender and crime as committed by him was not so grave so that he could be punished with jail sentence. He has faced the trial and appeal since the year 2008 and therefore looking to his first offence and overt act of causing superficial injuries to the victims it is a good case in which the jail sentence imposed by the trial Court may be reduced to the period for which the appellant remained in the custody.10. On the basis of aforesaid discussion the present appeal filed by the appellant is hereby partly allowed. His conviction of the offence under Sections 323 323/34 and 452 of the IPC is hereby maintained but the sentence is reduced to the period for which he remained in the custody.11. Copy of the judgment be sent to the trial Court alongwith its record for information.