HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Appeal No.59/2011 Dewan Singh Maravi Vs. State of Madhya Pradesh ---------------------------------------------------------------------------------- Present : Hon'ble Shri Justice N.K. Gupta. ---------------------------------------------------------------------------------- Name of counsel for the parties: Ms. Neena Khera, counsel for the appellant. Shri Ajay Tamrakar, Panel Lawyer the respondent/State. ----------------------------------------------------------------------------------------------------- JUDGMENT
(Delivered on 21st day of November, 2012) The appellant has preferred this appeal against the judgment dated 4.5.2010 passed by the learned Sessions Judge, Balaghat in S.T. No.19/10, whereby the appellant was convicted for the offence punishable under Section 326 of IPC and sentenced for three years’ R.I. with fine of `500/- and in default of payment of fine, three months’ S.I. was also directed. 2 The prosecution’s case in short is that, on 17.12.2009 at about 9:00 p.m. in the night, the complainant Manglo Bai (PW-1) was sleeping in her house. The appellant, husband of the complainant was also present in the house. Suddenly, he assaulted the complainant by an axe and Bichhua on her face. The 2 Criminal Appeal No.59/2011 complainant Manglo Bai was taken to the Police Station, Baihar, where she had lodged an FIR, which was recorded in Rojnamcha- sanaha and thereafter, she was sent to the Primary Health Centre, Baihar for her medico legal examination and treatment. Dr. N.S. Kumre (PW-6) had examined the victim and gave his report Ex.P/7. He found that there were so many incised wounds on her face and head. On her head, two incised wounds were found, which were parallel in nature and bone deep. On her face including chicks etc. six incised wounds were found whereas one tooth from her jaw was removed. The victim was referred for further examination and treatment to the District Hospital, Balaghat. After due investigation, a charge sheet was filed before the J.M.F.C. Baihar, who committed the case to the Sessions Judge, Balaghat.
3. The appellant abjured his guilt. He did not take any specific plea but no defence evidence was adduced.
4. The learned Sessions Judge after considering the prosecution’s evidence convicted the appellant for the offence punishable under Section 326 of IPC and sentenced as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that the victim Manglo Bai (PW-1) and her mother Soni Bai (PW-2) have accepted that there was a dark inside the room and therefore, they could not say definitely that who assaulted the victim Manglo 3 Criminal Appeal No.59/2011 Bai and therefore, the learned Sessions Judge convicted the appellant on the basis of suspicion only. Hence, it is prayed that the appellant may be acquitted. In the alternate, it is submitted that out of the sentence directed by the trial Court, the appellant has already undergone more than two years in the custody and therefore, his sentence may be reduced to the period, which he has already undergone in the custody.
7. On the other hand, the learned Panel Lawyer has submitted that the conviction as well as the sentence directed by the trial Court appears to be appropriate. There is no basis by which any interference can be done at this stage.
8. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether, the appeal filed by the appellants can be accepted?. and whether the sentence can be reduced?.
9. Manglo Bai (PW-1) and her mother Soni Bai (PW-2) have stated that when Manglo was sleeping, the appellant assaulted with some weapons either it was a small axe or a Bichhua. He assaulted on her face. The trial Court has observed that face of the victim Manglo Bai was disfigured and she was unable to look anything from her right eye. She has lodged an FIR soon after the incident and her injuries were proved by Dr. N.S. Kumre (PW-6). Dr. Kumre found that all such injuries were caused 4 Criminal Appeal No.59/2011 by the sharp cutting weapon and therefore, there is no doubt that the victim was assaulted by a small axe or a Bichhua. The offence punishable under Section 326 of IPC was done with the complainant. The learned counsel for the appellant has raised an objection that the complainant and her mother could not identify the actual culprit and therefore, the benefit of doubt is to be given to the appellant. Manglo Bai has categorically stated that only her husband (appellant) was present in her house. It is admitted by the victim Manglo Bai as well as Soni Bai that at the time of the incident, there was darkness and therefore, nothing could be seen clearly. However, no robbery took place with the complainant. She did not say about enmity with anyone and therefore, there was no possibility that some outsider could have come inside the house and assaulted the victim Manglo Bai. If the appellant was present in the house at the time of the incident, it was for him to save his wife and to intimate the investigation officer, as to who assaulted the victim Manglo Bai, but such duty of the husband was not done by the appellant and therefore, there was no one present in the house except the appellant and therefore, looking at the silence kept by the appellant, it should be presumed that it was the appellant, who assaulted the victim Manglo Bai otherwise in a close house, where the complainant and the appellant only were present, no outsider could assault the victim.
10. It was the duty of the appellant to rebut the aforesaid 5 Criminal Appeal No.59/2011 presumption, but he did not say anything in his statement under Section 313 of Cr.P.C. No suggestion was given to the victim from the side of the appellant that who assaulted the victim. Under such circumstances, the version is nowhere rebutted by the appellant and therefore, it is proved beyond doubt that it was the appellant, who assaulted the victim by sharp cutting weapon.
11. It is apparent from the evidence given by the complainant that she was sleeping at the time of the incident and therefore, she did not give any sudden or gave provocation to the appellant. Similarly, no right of private defence was accrued to the appellant. The appellant could understand the result of his assault when he assaulted for the first time. He gave more than 6-7 blows to the complainant on her face and therefore, it is established that he knew the result of his assaults and he was intended to cause such assaults. It is proved beyond doubt that the appellant has voluntarily assaulted the victim Manglo Bai by sharp cutting weapon causing her some grievous injuries on her face. Therefore, the learned Sessions Judge has rightly convicted the appellant for the offence punishable under Section 326 of IPC. 1 So far as the sentence is concerned, the overt act of the appellant is brutal. He was not expected to assault his own wife in such a manner and therefore, no sympathy may be observed with the appellant. However, he remained in the custody since 18.12.2009 and therefore, it is possible that including his remission 6 Criminal Appeal No.59/2011 period, he has to undergo for one or two months more in the custody. Under such circumstances, where he has already undergone in the custody for more than two years and ten months, his jail sentence may be reduced to the period, which he has already undergone in the custody.
13. On the basis of aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. The conviction directed against the appellant for the offence punishable under Section 326 of IPC is hereby affirmed but his jail sentence is reduced to the period, which he has already undergone in the custody. No change in the fine amount.
14. The appellant is in jail and therefore, Registry is directed to arrange for issuance of a supper-session warrant accordingly at the earliest.
15. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance. (N.K . GUP T A) J 21.11.2012 7 Criminal Appeal No.59/2011 pnkj