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2020 DIGILAW 119 (MP)

Babbu Baiga v. State of M. P.

2020-01-21

VISHNU PRATAP SINGH CHAUHAN

body2020
ORDER : Vishnu Pratap Singh Chauhan, J. 1. The applicant has filed this criminal revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 being aggrieved by the judgment of conviction and order of sentence dated 13/07/2017 passed in Criminal Case No. 1980/2014 by the Court of JMFC thereby convicting the applicant under Section 325 of IPC and sentencing him to undergo one year RI along with fine of Rs. 200/- with default stipulation which had been affirmed in Criminal Appeal No. 18/2012 by learned Sessions Judge, Umaria vide judgment dated 13/08/2019. 2. The case of prosecution against the applicant, in short, is that applicant-Babbu Baiga was talking with two other persons, at that time victim child Ku. Shanu (PW-2) who was coming to her home after answering call of nature, stood near the house of applicant-Babbu Baiga. However, on seeing Ku. Shanu, applicant in an abusive language said her that why she is hearing chat. Thereafter applicant slapped and pushed Ku. Shanu, resultantly she fell down on ground and received injuries on the left hand. She narrated the whole incident to her mother Prembai (PW-1). When Prembai (PW-1), mother of victim Ku. Shanu, complained the same to applicant- Babbu Baiga, he again uttered filthy languages, then Prembai (PW-1) lodged FIR (Ex. P/1) against the applicant, which was recorded by Santosh Jhariya, ASI (PW-6). Injured Ku. Shanu (PW-2) sent for medical examination and Dr. V.K. Jain (PW-4) examined her injuries and found fracture in radius and ulna bone. Investigation conducted by Balendra Pratap Singh (PW-11) and Man Singh (PW-7). After investigation, charge sheet came to be filed. 3. Learned trial Court after framing the charge recorded the evidence of both the parties. In examination under Section 313 of the Code of Criminal Procedure, 1973, the applicant pleaded that he is innocent and he has falsely been implicated in the case. Learned trial Court after hearing both the parties, delivered judgment dated 13/07/2017 thereby convicted the applicant for the offence punishable under Section 325 of IPC and sentenced him to undergo one year PJ along with fine of Rs. 200/- with default stipulation. The applicant preferred an appeal against the conviction and sentence registered as Criminal Appeal No. 18/2017. Learned appellate Court vide judgment dated 13/08/2019 while dismissing the appeal affirmed the conviction and sentence passed by the trial Court. 4. 200/- with default stipulation. The applicant preferred an appeal against the conviction and sentence registered as Criminal Appeal No. 18/2017. Learned appellate Court vide judgment dated 13/08/2019 while dismissing the appeal affirmed the conviction and sentence passed by the trial Court. 4. The applicant has preferred this criminal revision on the ground that learned trial Court passed the judgment of conviction and order of sentence on the wrong appreciation of evidence. The applicant neither inflicted the injury nor assaulted the victim by any weapon, however, owing to the previous enmity, the applicant has falsely been implicated in this crime. Victim Ku. Shanu received the injuries while felling down on the ground. The applicant is 65 years old person and learned both Courts below imposed harsh punishment which is not required for the said act of applicant, therefore, prays that while allowing this revision set aside the conviction and sentence and acquitted the applicant of the charge. 5. On the other hand, learned Dy. Govt. Advocate for respondent/State supports the judgment passed by both the Courts below and submits that there is sufficient evidence available against the applicant on record. This revision has been filed by the applicant on the wrong grounds, therefore, prays for dismissal of the revision. 6. Having heard learned counsel for the parties, perused the record. 7. As per Section 393 of Cr.P.C., when the conviction and sentence passed by the trial Court has been affirmed by the appellate Court, the same attains its finality and revisional Court is having limited scope to appreciate the evidence while exercising the revisional jurisdiction. Hon'ble Apex Court discussed the ambit and scope of Section 397 read with Section 401 of Cr.P.C. in the case of Kishan Rao v. Shankargouda (2018) 8 SCC 165 : ( AIR 2018 SC 3173 ). Hon'ble Apex Court in paras 12 to 14 of the said judgment has held as under: 12. This Court has time and again examined the scope of Section 397/401, Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 : ( AIR 1999 SC 981 ), while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following (SCC pp. 454-55, para 5): "5. In State of Kerala v. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 : ( AIR 1999 SC 981 ), while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following (SCC pp. 454-55, para 5): "5. .....In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which- -would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence....." 13. Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke and others (Reported in AIR 2015 SC (Supp) 127).This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14: "14. ....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401, CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction." 14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis." 8. Perused the evidence of prosecution recorded before the trial Court. Injured child victim-Ku. Shanu Baiga (PW-2) clearly stated that applicant pushed her and her hand broke down when she fell down. Perused the cross-examination of the said witness. This witness again in para-3 of her statement categorically stated that at the time of incident applicant was chatting with Gilla and Billu. In para-2 she denied the suggestion that she fell down from the tree. She categorically stated that applicant pushed her. 9. Ranjeet Baiga (PW-3), Umesh Baiga (PW-5), Ramdhani Baiga (PW-8), Baban Baiga (PW-9), Siyasharan Baiga (PW-10) declared hostile by the prosecution. All these witnesses categorically stated that they are not having any knowledge about the incident nor they saw the incident. On the basis of the statement of these witnesses, all witnesses can be categorized as a witness of none. Neither they supported the story of the prosecution nor they supported the story of defence. They categorically stated that they had not seen the incident. Meaning thereby, they were not present at the time of incident and if they were present at the time of incident, they did not want to state anything about the incident. 10. Prembai Baiga (PW-1), mother of child victim, categorically stated that victim Ku. They categorically stated that they had not seen the incident. Meaning thereby, they were not present at the time of incident and if they were present at the time of incident, they did not want to state anything about the incident. 10. Prembai Baiga (PW-1), mother of child victim, categorically stated that victim Ku. Shanu Baiga (PW-2) categorically narrated the incident to her. FIR was lodged on the next day because Police Station, Nowrozabad is 25 km away from the place of incident and after incident there was no conveyance available to reach at the Police Station. 11. Dr. V.K. Jain (PW-4) who examined the child victim found fracture in radius and ulna bone of left hand of victim Ku. Shanu Baiga. Dr. A.R. Yadav examined the victim and found swelling in left wrist of the child victim. On the basis of the above evidence, this Court finds that both the Courts below have not committed any error in convicting the applicant for the offence punishable under Section 325 of IPC. 12. So far as sentence is concerned, as the applicant has been sentenced to undergo one year RI and fine of Rs. 200/-, this Court finds that it is on higher side considering the act of the applicant. The applicant only pushed the child victim. No doubt, he intentionally pushed, but he was not in the knowledge that the child victim would suffer the grievous hurt when she fell down. The applicant neither assaulted the child victim by means of any wooden stick or by means of any weapon to inflict the injury, however, intentionally pushed her knowing that she could receive injury and she fell down. In these circumstances, this Court finds that the punishment imposed by the trial Court as well as by the appellate Court is not justified. The applicant has already undergone sentenced from 13/08/2019, meaning thereby he has already undergone more than five months in the custody which is sufficient period in the present scenario of this case. Thus, this Court is inclined to allow this revision on the point of sentence. 13. In view of aforesaid discussions, this criminal revision is partly allowed. The conviction of applicant under Section 325 of IPC is remained winterfeed, however, the sentence is hereby modified from one year RI to the period already undergone by the applicant. The sentence of fine amount remains same. 13. In view of aforesaid discussions, this criminal revision is partly allowed. The conviction of applicant under Section 325 of IPC is remained winterfeed, however, the sentence is hereby modified from one year RI to the period already undergone by the applicant. The sentence of fine amount remains same. The applicant be released forthwith, if not required in any other criminal case. 14. Let copy of this order along with record be sent to the trial Court immediately for information and necessary action. 15. Interlocutory applicant, if any pending, stands dismissed.