TARACHAND CHAUHAN v. PRINCIPAL SECRETARY STATE OF M.P. AND 4 ORS.

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimants by the Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross objection. In view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. As observed supra, it is a death case. On 25.6.2007, aged 35 years, met with a motor accident and died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs.1,80,000/-, breakup of which is as under:-

Rs.1,60,000/-Towards loss of dependency.

Rs.10,000/- Towards transport expenses.

Rs.5,000/- Towards consortium.

Rs.5,000/- Towards love and affection.

4. Learned Counsel for the appellants submit that deceased was aged 35 years and he received severe injuries on head,hand and leg and died during treatment. Learned Counsel submits that income of the deceased ha;d been assessed on notional basis which is on lower side. It is

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submitted that on other heads also amount awarded is on lower side. It is submitted that appeal be allowed, amount be enhanced.

5. Learned Counsel for respondent No3, submits that the amount awarded by the learned Tribunal is just and proper. It is submitted that appeal has no merits, the same be dismissed.

6. I have gone through the evidence adduced by the claimants. After taking into consideration all the evidence on record this Court is of the view that since the accident is of the year 2007 this Court is of the view that income ought to have been assessed @ Rs.3,000/- per month In my opinion it will be proper to enhance the compensation. The appellants are entitled for the following amount :

Rs.3,20,000/- towards loss of dependency.

Rs. 5,000/- towards funeral expenses.

Rs. 5,000/-towards love and affection.

Rs. 5,000/-towards loss of consortium.

Rs. 5,000/-towards loss of estate.

Rs. 3,40,000/-

=========================

- 1,80,000/-

=========================

1,60,000/-

7. Thus, the appellants are entitled for Rs.3,40,000/- instead of Rs.1,80,000/-. The enhanced amount of Rs.1,60,000/-, shall carry interest @ 8% per annum from the date of application.

8. The enhanced amount shall be deposited by the respondents/Insurance Company with the learned Tribunal and the

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learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant No.1 in the nearest Nationalized Bank, in the area where the appellant No.1 is residing, with the condition that the Bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant No.1, which shall be opened by the appellant No.1 from where appellant No.1 can withdraw the amount as per need. However, on an application by the appellant No.1, this condition can be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant No.1.

9. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody, J) M.Jilla.

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M.A.No.1879/2008

29.9.2011.

Appellant by Shri K.K.Tiwari, learned Counsel. Respondent No.3 by ShriS.V.Dandwate, learned Counsel.

With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 27.2.2008 passed by Motor Accident Claims Tribunal, Dewas, in Claim Case No.55/2007. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 1,80,000/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 30 years at the time of accident, which took place

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on25.6.2007. Appellant was hospitalised from...........to..........at..............Appellant sustained fracture of ....................Appellant was.........................It is submitted that learned Tribunal has awarded a sum of Rs................/-. Breakup of which is aqs under:

Rs......................./-Towards permanent disability. Rs......................./-Towards pain and sufferings. Rs......................./- Towards loss of income for a period of 6 months.

Rs....................../- Towards medical expenses and special diet.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side.

5. Learned Counsel for respondent No.3 submits that......................................Looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

6. I have gone through the evidence adduced by the claimant on the issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that.........................In my opinion, it will be proper to enhance the compensation by Rs........ .In other words, in view of this, the claimant is held entitled for a total sum of Rs.............../- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.............../- shall carry interest @ 8% p.a.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J)

M.Jilla. M.A.No.3482/2010

29.9.2011.

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Appellant by Shri.M.A.Khan,learned Counsel. Respondent No.2 by Shri Manoj Jain, learned Counsel. With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 28.9.2010 passed by Motor Accident Claims Tribunal, Indore,in Claim Case No.279/2010. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 2,02,900/-with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company

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either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 25 years at the time of accident, which took place on 4.10.2008. Appellant was hospitalised from 5.10.2008 to 21.10.2008 at M.Y.Hospital. Appellant sustained fracture of Tibia and Fibula bone and was operated and rod and screws were inserted. It is submitted that learned Tribunal has awarded a sum of Rs.2,02,900/-. Breakup of which is as under:

Rs.1,94,400/-Towards permanent disability.

Rs. 8,500/Towards medical expenses.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side.

5. Learned Counsel for respondent No.3 submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

6. I have gone through the evidence adduced by the claimant on the issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs 30,000/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.2,32,900/-

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by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.30,000/- shall carry interest @ 8% p.a.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J) M.Jilla.

M.A.No.3735/2010

29.9.2011.

Appellant by Shri.V.S.Chauhan,learned Counsel. Respondent No.4 by Shri Manoj Jain, learned Counsel. Respondent No.5 by Shri Abhay Jain,learned Counsel. With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated13.9.2010 passed by Motor Accident Claims Tribunal, Khargone,in Claim Case No.100/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 10090/-with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for

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enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 33 years at the time of accident, which took place on 8.4.2009. Appellant was hospitalised at Civil Hospital Barwaha and then referred to M.Y.Hospital Indore. Appellant sustained injuries in which his two teeth were broken due to the accident. It is submitted that learned Tribunal has awarded a sum of Rs10090/-. Breakup of which is as under:

Rs.10,000/-Towards loss of damages.

Rs. 90/-Towards medical expenses.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side.

5. Learned Counsel for respondent No.3 submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

6. I have gone through the evidence adduced by the claimant on the

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issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.20,000/- .In other words, in view of this, the claimant is held entitled for a total sum of Rs.30,090/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.20,000/- shall carry interest @ 8% p.a. So far as the findings of liability is concerned, findings of the learned Tribunal shall remain intact.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J) M.Jilla.

M.A.No.282/2011

29.9.2011.

Appellant by Shri Avinash Yadav, learned Counsel. Respondent No.3 by Shri Mayank Upadhyaya,learned Counsel. Heard on IA No. 1547/2011 which is an application under Section 5 of the Limitation Act.

For the reasons assigned in the application in filing the appeal which is barred by two days is, hereby, condoned. With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 8.10.2010 passed by Motor

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Accident Claims Tribunal, Khargone, in Claim Case No.35/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs.60,000/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 50 years at the time of accident, which took place on 15.12.2008. Appellant was hospitalised at District Hospital Khargone and Sharda Hospital Khargone. Appellant sustained fracture of knee and wire was inserted. It is submitted that learned Tribunal has awarded a sum of Rs.60,000/-. Breakup of which is as under:

Rs.25,000/-Towards permanent disability.

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Rs.6,000/- Towards loss of income. Rs.29,000/- Towards medical expenses and special diet.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side.

5. Learned Counsel for respondent No.3 submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

6. I have gone through the evidence adduced by the claimant on the issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.25,000/-.In other words, in view of this, the claimant is held entitled for a total sum of Rs.85,000/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.25,000/- shall carry interest @ 8% p.a.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J) M.Jilla.

M.A.No.556/2011

29.9.2011.

Appellant by Shri Mahendra Purohit,learned Counsel.

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Respondent No.3 by Ms. Preeti Keswani, learned Counsel. With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 18.11.2010 passed by Motor Accident Claims Tribunal, Indore, in Claim Case No.158/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 54,865/-with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant I.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 34 years at the time of accident, which took place on16.8.2008. Learned

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Counsel submits that the appellant sustained fracture of left hand. Appellant was hospitalised for three days at Choithram Hospital Indore. Appellant suffered permanent disability of 26.8 % which has wrongly been assessed by the Tribunal as 5% and on other heads also amount awarded is inadequate which deserves to be enhanced. It is submitted that learned Tribunal has awarded a sum of Rs.54,865.17/-. Breakup of which is as under:

Rs.36,600/-Towards permanent disability.

Rs.1,000/-Towards pain and sufferings.

Rs.1,300/-/- Towards loss of income

Rs.18,965/- Towards medical expenses.

Rs. 1,000/- Towards attender expenses.

Rs. 1,000/- Towards special diet.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side.

5. Learned Counsel for the respondent No.3 submits that the amount awarded by the learned Tribunal is just and proper which requires no interference. It is submitted that appeal be dismissed.

6. Learned Counsel for respondent No.3 submits that after taking into consideration all the facts and circumstances of this case this Court is of the view that appellant is entitled for the following amounts:-

Rs.40,000/- towards permanent disability.

Rs. 5,000/- towards special diet.

Rs. 5,000/- towards pain and suffering.

Rs. 5,000/- towards attender expenses.

Rs.18,965/- towards medical expenses.

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Rs. 5,000/- towards loss of income. ----------------------------------------------

78,965/-

− 54,865/-

− 24,100/-

7. Thus, the appeal filed by the appellant is allowed. Amount awarded is enhanced by Rs. 24100=00. In other words appellant shall be entitled for a sum of Rs. 78965=00 instead of Rs.54865=00. Enhanced amount shall carry interest @ 8% p.a. from the date of application.

(N.K.Mody,J) M.Jilla.

M.A.No.931/2011

29.9.2011.

Appellant by Shri G.K.Neema,learned Counsel. Respondent No.1 and 2 by Ms. Archana Maheshwari, learned Counsel.

Respondent No.3 by Shri Manoj Jain,learned Counsel. With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 8.2.2011 passed by Motor

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Accident Claims Tribunal, Jhabua, in Claim Case No.126/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 2,10,000/-with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant I.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 20 years at the time of accident, which took place on 9.4.2009. She sustained multiple fractures in her right leg right hand and also injuries on other parts of the body. Appellant was hospitalised from at Dahod at Saifi Hospital. It is submitted that learned Tribunal has awarded a sum of Rs.2,10,000/-. Breakup of which is as under:

Rs.80,000/-Towards permanent disability.

Rs.10,000/-Towards pain and sufferings.

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Rs.24,000/- Towards loss of income Rs.96,000/- Towards medical expenses and special diet.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side. Learned Counsel for the appellant submits that permanent disability of the right leg was 24.4% and 22.8% of the right hand totaling 47.2% which has wrongly been assessed as 16% of the whole body. It is submitted that income has been assessed @ 2500/- which is on lower side. It is submitted that on other heads also amount awarded is on lower side.

5. Learned Counsel for the respondent No.3 submits that the amount awarded is just and proper which requires no enhancement. It is submitted that appeal be dismissed.

6. After taking in to consideration all the facts and circumstances of the case and keeping in view the injuries sustained by the appellant this Court is of the view that the income has been assessed on lower side. Permanent disability has also been assessed on lower side. Appellant is entitled for the following amounts:-

Rs.1,40,000/- towards permanent disability.

Rs.1,00,000/- towards medical expenses.

Rs. 10,000/- towards pain and sufferings.

Rs. 30,000/- towards loss of income.

Rs. 10,000/- towards special diet.

Rs.10,000/- towards transport expenses.

Rs.10,000/- towards attender expenses.

7. In view of this appeal filed by the appellant is allowed. Amount is enhanced by Rs.1,00,000/-.In other words, in view of this, the claimant is held entitled for a total sum of Rs.3,10,000/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.1,00,000/- shall carry interest @ 8% p.a.

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8. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J) M.Jilla.

M.A.No.838/2011

29.9.2011.

Appellant by Shri V.S.Chauhan,learned Counsel. Respondent No.3 by Shri Anil Goyal and Shri Akhilesh Goyal,learned Counsel.

With consent of the parties matter heard finally.

O R D E R

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This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 11.11.2010 passed by Motor Accident Claims Tribunal, Ratlam, in Claim Case No.35/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs.76,700/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 22 years at the time of accident, which took place on 27.7.07.Appellant was hospitalised from 23.7.07 to 31.7.07 at Baroda. Appellant sustained fracture of below the knee. It is submitted that learned Tribunal has awarded a sum of Rs.76,700/-. Breakup of which is as under:

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Rs.25,000/-Towards permanent disability. Rs.3,000/- Towards pain and sufferings. Rs.5,000/- Towards loss of income. Rs.43,200/-Towards medical expenses and special diet. Rs. 500/-Towards Transport expenses.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side. Learned Counsel submits that keeping in view the permanent disability which has been assessed by the Tribunal as 8-10% which ought to have been 12% and the income of the appellant ought to have been assessed 2500/- ought to have been assessed @ 3,000/- this Court is of the view that the amount awarded is on lower side. The appellant is entitled for the following amount:-

Rs.61,200/- towards permanent disability.

Rs.70,500/- towards medical expenses.

Rs. 3,000/- towards pain and suffering.

Rs. 2,000/- towards special diet.

Rs. 3,000/- towards transport expenses.

Rs. 2,000/- towards attender expenses.

Rs. 5,000/- towards loss of income.

Learned Counsel for respondent No.3 submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made. It is submitted that appeal be dismissed.

5. I have gone through the evidence adduced by the claimant on the

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issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.70,000/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.1,46,700/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.70,000/- shall carry interest @ 8% p.a.

6. The enhanced amount shall be deposited by the respondents/Insurance Company with the learned Tribunal and the learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant in the nearest Nationalized Bank, in the area where the appellant is residing, with the condition that the Bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant, which shall be opened by the appellant from where appellant can withdraw the amount as per need. However, on an application by the appellant, this condition can be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J) M.Jilla.

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M.A.No.3645/2009

29.9.2011.

Appellant by Shri.V.S.Chauhan,learned Counsel. Respondent No.3 by Shri Anil Goyal with Shri Akhilesh Goyal,learned Counsel.

With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 30.9.2009 passed by Motor Accident Claims Tribunal, Indore, in Claim Case No.23/2007. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 1,36,100/-with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such

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as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged 45 years at the time of accident, which took place on 31.8.06.Appellant was hospitalised from 31.8.06 to.9.9.06 and from 6.3.07 to 8.3.07 at Bombay Hospital Indore. Appellant sustained fracture of femur bone and of condie bone. It is submitted that learned Tribunal has awarded a sum of Rs.1,36,069/-. Breakup of which is as under:

Rs.32,760/-Towards permanent disability.

Rs.15,000/-Towards pain and sufferings.

Rs.3,000/- Towards special diet.

Rs.85,309/- Towards medical expenses.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side. Learned Counsel submits that keeping in view the permanent disability which has been assessed by the learned Tribunal is 10% which ought to have been 20% and the income of the appellant ought to have been assessed @ 3,000/-. This Court is of the view that the amount awarded is on lower side. Looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made. The appellant is entitled for the following amount:

Rs. 1,08,000/- towards disability.

Rs. 90,069/-towards medical expenses.

Rs. 15,000/- towards pain and suffering.

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Rs. 3,000/- towards special diet. Rs. 3,000/- towards transportation. Rs. 5,000/- towards attender expenses. Rs. 12,000/-towards loss of income.

5. I have gone through the evidence adduced by the claimant on the issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.1,00,000/- .In other words, in view of this, the claimant is held entitled for a total sum of Rs.2,36,069/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.1,00,000/-/- shall carry interest @ 8% p.a.

6. The enhanced amount shall be deposited by the respondents/Insurance Company with the learned Tribunal and the learned Tribunal is directed to invest 80% of the said amount on long term fixed deposit in the name of appellant in the nearest Nationalized Bank, in the area where the appellant is residing, with the condition that the Bank will not permit any loan or advance. Interest on the said amount shall be credited on monthly basis in S.B. Account of appellant, which shall be opened by the appellant from where appellant can withdraw the amount as per need. However, on an application by the appellant, this condition can be modified by the learned Tribunal in exceptional circumstances, if made out by the appellant.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

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(N.K.Mody,J) M.Jilla.

INJURY CASE

M.A.No......../of.........

.10.2011.

Appellant by Shri..................,learned Counsel. Respondent No.3 by Shri......,learned Counsel. Case is listed in default of fresh PF of respondent Nos. 1 & 2. Learned Counsel for the appellant prays for dispensing with services of respondent Nos.1 & 2. Prayer is allowed. Services of respondent Nos.1 & 2 are dispensed with at the risk of appellant.

With consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated.........passed by Motor Accident Claims Tribunal, .................,in Claim Case No......... By the impugned award, the Claims Tribunal has awarded a total sum of Rs. .............with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant I.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to that extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying

384

compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly none of these findings though recorded in claimant's favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. Learned counsel for the appellant submits that appellant was aged.........years at the time of accident, which took place on...........Appellant was hospitalised

from...........to..........at..............Appellant sustained fracture of ....................Appellant was.........................It is submitted that learned Tribunal has awarded a sum of Rs................/-. Breakup of which is as under:

Rs......................./-Towards permanent disability. Rs......................./-Towards pain and sufferings. Rs......................./- Towards loss of income for a period of 6 months.

Rs....................../- Towards medical expenses and special diet.

4. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned Tribunal is on lower side.

5. Learned Counsel for respondent No.3 submits that......................................Looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

6. I have gone through the evidence adduced by the claimant on the issue of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that.........................In my opinion, it will be proper to enhance the compensation by Rs........ .In other words, in view of this, the claimant is held entitled for a total sum of Rs.............../- by way of compensation for the injuries sustained by appellant in

385

the accident. The enhanced amount of Rs.............../- shall carry interest @ 8% p.a.

7. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody,J) M.Jilla.

M.A.No.3727/2007 26/9/2011.

Appellants by Ms Archana Maheshwari, advocate. Respondent No.1 by Mr.S.V.Dandwate,advocate. With the consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 31.8.2007,passed by MACT,Jhabua in claim case No.79/2006. By impugned award, the Claims Tribunal has awarded a total sum of Rs.57,500/- with interest to the claimants for the death of one Amritlal,who died in vehicle accident. According to claimants, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal.

386

So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to what extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimants by the Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross objection. In view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. As observed supra, it is a death case. On 17.5.2005, aged 30 years, met with a motor accident and died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for her/his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs.57,500/-, breakup of which is as under:-

Rs.50,000/-Towards loss of dependency.

Rs. 2,000/- Towards funeral expenses.

Rs.2500/-Towards loss of estate.

Rs. 3,000/- Towards legal expenses.

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4. Learned Counsel submits that in a death case the amount is grossly inadequate which deserves to be enhanced. It is submitted that deceased was a peon and was getting a salary of Rs. 4183/- at the time of his death. It is submitted that appeal be allowed. The amount be enhanced.

5. Learned Counsel for respondent No.1, submits that the deceased Amritlal himself was responsible as he met with accident with a motorbike which was stationary. It is submitted that criminal case was registered against the deceased. It is submitted that at the relevant time, the deceased was under intoxication, therefore, the amount which has been awarded by the learned Tribunal is on account of no fault liability. It is submitted that in fact the claim petition has been dismissed on merits. It is submitted that in the facts and circumstances of the case, the appeal has no merits and the same is dismissed.

6. From perusal of the record it appears that appellant has examined Jaswant who was the pillion rider who has stated that accident occurred because of rash and negligent driving of respondent No.2 who was driving the motorcycle which was owned by respondent No.3. Complete post mortem report is not on record to find out the exact reason of the death of the deceased. The statement of Jaswant has been disbelieved by the learned Tribunal on the ground that since he was the pillion rider and, therefore, he was not in a position to see that in what circumstances the accident took place. It is true that a criminal case was registered against the deceased. It is not enough to hold that it was only the deceased who was liable for the accident. At the most it could have been said that the deceased and respondent No.2 were equally liable for the accident. Since

388

the deceased was earning Rs.4183/- at the relevant time, therefore, the income ought to have been assessed on that basis and keeping in view the age of the deceased, multiplier of 8 ought to have been applied. Since the deceased was a bachelor and was equally liable for the accident, therefore, the appellants is entitled for compensation on account of loss of dependency after deducting half towards personal expenses and 50% on account of contributory negligence.

7. I have gone through the evidence adduced by the claimants. After taking into consideration all the evidence on record this Court is of the view that case of enhancement is made out. In my opinion it will be proper to enhance the compensation. The appellants are entitled for the following amount :

Rs.100392/- Loss of dependency.

Rs. 5000/- Funeral expenses.

Rs. 10000/- Loss of love and affection.

Rs. 5000/- Loss of estate.

Rs. 5000/- Litigation expenses.

=========================

Rs.1,25,392/- Total

=========================

-57,500/-

=========================

67,892/- Balance

=========================

8. Thus, the appellant is entitled for Rs.1,25,392/- instead of Rs.57500/-. The enhanced amount of Rs.67892/- which shall carry interest @ 8% per annum from the date of application.

8. With the aforesaid modification the appeal stands disposed of. No order as to costs.

389

(N.K.Mody, J) M.Jilla.

M.A.No 2161/2008 26/9/2011.

Appellants by Ms. Madhu Bhatia, advocate. Respondent No.3 by Mr.Pradeep Gupta, Shri Bhasker and Shri H.G.Shukla,advocates.

With the consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 10.4.2008, passed by MACT, Shujalpur in claim case No.36/2007.By impugned award, the Claims Tribunal has awarded a total sum of Rs.92,000/- with interest to the claimants for the death of

390

one Azad, who died in vehicle accident. According to claimants, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to what extent ?

2. It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimants by the Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross objection. In view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. As observed supra, it is a death case. On 10.4.2008, met with a motor accident and died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for her/his

391

death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs.92,000/-, breakup of which is as under:-

Rs.80,000/-Towards loss of dependency.

Rs.2,000/- Towards funeral expenses.

Rs.10,000/-Towards Love and affection.

4. Learned Counsel for the appellants submit that appellants are the parents of the deceased. Learned Tribunal assessed the dependency @ 2/3^rdas the deceased was bachelor. It is submitted that the income of the deceased has been assessed on notional basis which is on lower side. On other heads the appeal be allowed and the amount be enhanced.

5. Learned Counsel for respondent No.3, submits that the amount awarded is just and proper. No case for enhancement is made out. Appeal be dismissed. Since the appeal is of the year 2003, therefore, the income of the deceased has been on lower side which ought to have been assessed 2,500/- per month since the deceased was bachelor, therefore, deduction of 1/3^rd towards dependency is on lower side which ought to have been half. On other heads the amount awarded is on lower side.

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Appellants are entitled for the following amounts.

6. I have gone through the evidence adduced by the claimants. After taking into consideration all the evidence on record this Court is of the view that marginal enhancement is made out. In my opinion it will be proper to enhance the compensation. The appellants are entitled for the following amount :

Rs.12,0000/- Loss of dependency.

Rs. 5,000/- Funeral expenses.

Rs.10,000/- Loss of love and affection.

Rs. 5,000/- Loss of estate.

------------------------------

Rs.1,40,000/- Total

------------------------------

Rs. 92,000/- Less awarded

=========================

Rs. 48,000/-Balance payable.

=========================

7. Thus, the appellants are entitled for Rs.1,40,000/- instead of Rs.92,000/-. The enhanced amount of Rs.48,000/-, shall carry interest @ 8% per annum from the date of application.

8. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody, J) M.Jilla.

393

M.A.No.2569/2008 26/9/2011.

Appellants by Mr Maqbul Ahmed Mansoori, advocate. Respondent No.3 by Mr Sunil Jain with Shri Amit Pal,advocate. Being aggrieved by the award dt. 8.10.2001 passed by MACT Khachrod, in Claim Case No. 21/1998 whereby claim petition filed by the appellants was allowed and a sum of Rs. 2,01,000/- was awarded present appeal has been filed since the appeal is barred by 2418 days, therefore, an application for condonation of delay is filed.

After hearing the counsel for the appellant and keeping in view the allegations made in the application this Court is of the view that sufficient ground is made out. The application is allowed. Delay is condoned. Heard on merits.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 8.10.2001,passed by MACT, Khachrod in claim case No.21/1998.By impugned award, the Claims Tribunal has awarded a total sum of Rs.2,01,000/- with interest to the claimants for the death of one. Atmaram,who died in vehicle accident. According to claimants, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to what extent ?

2. It is not necessary to narrate the entire facts in detail, such as how

394

the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimants by the Tribunal. Secondly, none of these findings though recorded in claimants' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross objection. In view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

3. As observed supra, it is a death case. On 31.12.1995, aged 40 years, met with a motor accident and died, giving rise to filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking compensation for her/his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal by impugned award partly allowed the claim petition filed by claimants and as stated supra, awarded a sum of Rs.2,01,000/-, breakup of which is as under:-

Rs. 1,92,000/-Towards loss of dependency.

Rs. 2,000/- Loss of love and affection.

Rs. 2,000/- Towards funeral expenses.

Rs. 5,000/-Towards consortium.

4. Learned Counsel for the appellants submit that income of deceased was assessed @ 1800/- per month and after deducting Rs.300./- towards pocket expenses and also again after deducting 1/3^rdtowards personal expenses multiplier of 16 was applied and in other heads also amount awarded is inadequate hence the appeal be allowed the amount be enhanced.

5. Learned Counsel for respondent No3, submits that the amount

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awarded is just and proper which requires no interference hence the appeal be dismissed.

6. After taking all the facts and circumstances of the case, this Court is of the view that a case of marginal enhancement is made out. Appellant shall be further entitled for Rs. 25,000/- keeping in view the delay on the part of the appellants in filing the appeal appellants shall not be entitled for interest on the enhanced amount.

7. Thus, the appellants are entitled for Rs.2,26,000/- instead of Rs.2,01,000/-.

8. With the aforesaid modification the appeal stands disposed of. No order as to costs.

(N.K.Mody, J) M.Jilla.

M.A.No.2622/2008

26.09.2011.

Appellant with Shri R.N.Dave, learned Counsel for the appellant.

Shri S.V.Dandwate, learned Counsel for the respondent No.3.

396

Shri S.S.Chawla, learned counsel for respondent No.5. Arguments heard.

With the consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 3.7.2008 passed by Member Vith Motor Accident Claims Tribunal, Indore, in Claim Case No.279/2004. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 42,000/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent ?

02. Learned Counsel submits that in an motor accident which took place on 15.4.2004 learned Tribunal awarded a sum of Rs. 42,000/-.Appellant was aged 60 years and sustained grievous injuries . Appellant was hospitalised. Learned Counsel for the appellant submits that looking to the injuries

397

sustained by the appellant the amount awarded is grossly inadequate which deserves to be enhanced. It is submitted that appeal be allowed.

03. It is submitted that learned Tribunal has awarded a sum of Rs. 42,000/-, breakup of which is as under:

Rs. 19,000/- Medical expenses.

Rs. 15,000/- Permanent disability.

Rs. 6,000/- Pain and suffering.

Rs. 2,000/- Loss of income.

04. Learned Counsel submits that on account of permanent disability only Rs. 15,000/- has been awarded and on account of other heads also the amount awarded is in adequate. It is submitted that appeal be allowed and the amount be enhanced.

05. Learned Counsel for the respondent No.3 and 5 submit that it is the second round of litigation. In earlier round the claim petition was dismissed. Son of the appellant is in Police Department. It is submitted that amount awarded is just and proper.

06. Learned Counsel for respondents submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

07. I have gone through the evidence adduced by the

398

claimant on the basis of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that a case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.25,000/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.25,000/- by way of compensation for the injuries sustained by appellant in the accident. This amount shall carry no interest.

08. At this stage learned Counsel for the appellant submits that at the time of accident the appellant was 60 years and a long time has passed, therefore, he has no information about the appellant. In view of this, it is directed that in case the appellant has died then his legal representatives shall be entitled for the amount of compensation. So far as the liability is concerned, the findings recorded by the learned Tribunal shall remain intact.

09. With the aforesaid modification, the appeal stands disposed of. No order as to costs.

(N.K.MODY, J)

M.Jilla.

399

M.A.No.2626/2008

26.09.2011.

Appellant with Shri R.N.Dave, learned Counsel for the appellant.

Shri S.V.Dandwate, learned Counsel for the respondent No.3.

Shri S.S.Chawla, learned counsel for respondent No.5. Arguments heard.

With the consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 3.7.2008 passed by Member Vith Motor Accident Claims Tribunal, Indore, in Claim Case No.280/2004. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 56,000/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent ?

400

02. Learned Counsel submits that in an motor accident which took place on 15.4.2004 learned Tribunal awarded a sum of Rs. 56,000/-.Appellant was aged 32 years and sustained fracture of tibia and fibula and appellant was operated and rod was inserted and sustained permanent disability. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant the amount awarded is grossly inadequate which deserves to be enhanced. It is submitted that appeal be allowed.

03. It is submitted that learned Tribunal has awarded a sum of Rs. 56,000/-, breakup of which is as under:

Rs. 7,000/- Medical expenses.

Rs. 44,000/- Permanent disability.

Rs. 5,000/- Transport.

04. Learned Counsel submits that appellant is present in Court after operation there is a shorting of the leg. Appellant is not in a position to walk properly. Appellant has lost his job. Permanent disability appears at 10% is on lower side. On other heads the amount be enhanced. Appeal be allowed.

05. Learned Counsel for respondents submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

06. After taking all the facts and circumstances of the

401

case and keeping in view the injury sustained by the appellant who is present in Court this Court is of the view that permanent disability is 10% ought to have been 15%. On other heads also the amount awarded is on lower side. Appellant is entitled for the following amounts:-

Permanent disability Rs.66,000/-

Medical expenses Rs.10,000/-

Loss of Income Rs 5,000/-

Transport expenses Rs. 5,000/-

Attender Rs. 5,000/-

Special Diet Rs. 5,000/-

Pain and suffering Rs. 5,000/-

------------------------

Rs.1,06,000/-

56,000/-

------------------------

50,000/-

07. I have gone through the evidence adduced by the claimant on the basis of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that a case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.50,000/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.1,06,000/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.50,000/- shall carry interest @ 8% p.a. So far as the liability is concerned, the findings recorded by learned Tribunal shall

402

remain intact.

08. With the aforesaid modification, the appeal stands disposed of. No order as to costs.

(N.K.MODY, J)

M.Jilla.

M.A.No.1109/2009

26.09.2011.

Appellant with Shri Manish Jain, learned Counsel for the appellant.

Shri M. Sinjonia, learned Counsel for the respondent No.1 and 2.

Shri Arun Gupta, learned counsel for respondent No.3. Arguments heard.

With the consent of the parties matter heard finally.

O R D E R

403

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 7.1.2009 passed by Additional Member Motor Accident Claims Tribunal, Dhar, in Claim Case No.54/2008. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 54.144/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent ?

02. Learned Counsel submits that in an motor accident which took place on 4.2.2008 learned Tribunal awarded a sum of Rs. 54,144/-.Appellant was aged 19 years and was kuly (hammal) sustained fracture in the wrist of the left hand and also fracture 2^nd, 3^rd, 4^thand 5^thmetacarpal bone. Appellant was hospitalised at Jirabad from where appellant was referred to Indore. Total period of hospitalisation was 7 days.

03. It is submitted that learned Tribunal has awarded a sum of Rs. 54,144/-, breakup of which is as under:

Rs. 25,000/- permanent disability.

Rs. 25,644/- towards medical.

Rs. 1500/- loss of income.

Rs. 2000/- special diet.

404

04. Learned Counsel submits that permanent disability was to the extent of 42% which has been wrongly assessed as 7%. .It is submitted that for the purposes of computing the loss towards the permanent disability learned Tribunal assessed the income of the appellant @ 50/- per day. It is submitted that amount awarded is grossly inadequate which deserves to be enhanced. Appeal be allowed.

05. Learned Counsel for the respondents submit that the amount awarded is just and proper and no case for enhancement is made out. Appeal be dismissed.

06. Appellant is present in person. It is evident from appearance that because of the injury sustained by the appellant there is a deformity in the hand and appellant is not in a position to take use of the hand in a normal way. Since the permanent disability of 42% was assessed of the particular limb, therefore, this Court is of the view that the assessment @ 7% of the whole body by the learned Tribunal is on lower side which ought to have been 10%. So far as the income is concerned, learned Tribunal assessed Rs. 50/- per day which is on lower side which ought to have been Rs.100/- per day as the accident is of the year 2007. On other heads also the amount awarded is on lower side. Appellant is entitled for enhancement on account of permanent disability.

07. On other heads also the amount awarded is on lower side. Appellant is entitled for the following amounts:-

Towards Permanent disability Rs.70,000/- Towards Medical expenses Rs.30,144/-

Towards Loss of Income Rs. 5,000/-

405

Towards Transport expenses Rs. 5,000/- Towards Attender's expenses Rs. 5,000/- Towards Special Diet Rs. 5,000/- Towards Pain and suffering Rs. 5,000/- ------------------------

Rs.1,25,144.00/-

54,144.00/-

------------------------

71,000/-

08. I have gone through the evidence adduced by the claimant on the basis of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that a case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs.71,000/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.1,25,144,/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs.71,000/- shall carry interest @ 8% p.a. from the date of application.

09. With the aforesaid modification, the appeal stands disposed of. No order as to costs.

(N.K.MODY, J)

M.Jilla.

406

M.A.No.2176/2010

26.09.2011.

Ms. Usha Chauhan, learned Counsel for the appellant. Ms. Archana Kher, learned Counsel with Shri Bhasker Agrawal on behalf of Shri H.G.Shukla, learned Counsel for the respondent No.3.

Arguments heard.

With the consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 3.5.2010 passed by Vth Member Motor Accident Claims Tribunal, Indore, in Claim Case No.408/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 4,07,400/-/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent ?

02. Learned Counsel submits that in an motor accident which took place on 12.12.2008 learned Tribunal awarded a sum of

407

Rs. 4,07,400/-. Learned Counsel for the appellant submits that looking to the injuries sustained by the appellant the amount awarded is grossly inadequate which deserves to be enhanced. It is submitted that appeal be allowed.

03. It is submitted that learned Tribunal has awarded a sum of Rs. 4,07,400/-, breakup of which is as under:

Rs. 95,000/- towards medical.

Rs. 15,000/- towards pain and suffering. Rs. 5,000/- towards special diet.

Rs. 5,000/- towards attender.

Rs. 2,000/- loss of estate.

Rs. 10,000/- for artificial leg.

04. Learned Counsel for respondents submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

05. I have gone through the evidence adduced by the claimant on the basis of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that a case of enhancement is made out. Appellant is further entitled for a sum of Rs.22000/- on account of medical expenses and Rs.16200/- on account of permanent disability. In my opinion, it will be proper to enhance the compensation by Rs.36,200/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.4,43,600/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs. 36,200/- shall carry

408

interest @ 8% p.a. from the date of filing of claim petition.

06. With the aforesaid modification, the appeal stands disposed of. No order as to costs.

(N.K.MODY, J)

M.Jilla.

M.A.No.2217/2010

26.09.2011.

Shri G.K.Neema, learned Counsel for the appellant. Shri R.N.Dave, learned Counsel for the respondents. Arguments heard.

With the consent of the parties matter heard finally.

O R D E R

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against an award dated 14.5.2010 passed by VIIIth Member Motor Accident Claims Tribunal, Indore, in Claim Case No.90/10. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 27,671/- with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side

409

and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent ?

02. Learned Counsel submits that the appellant is a lady aged 58 years who sustained injury which took place on 4.11.2008. Appellant sustained fracture of femer bone and right leg and also fracture of condole bone. It is submitted that appellant was hospitalised from 4.11.2008 to 12.11.2008 twice. It is submitted that appellant was operated and plate was inserted and screws were fitted. Permanent disability was assessed @ 5% by the Medical Board which has been assessed by the learned Tribunal as 45%.

03. It is submitted that learned Tribunal has awarded a sum of Rs. 27,671/-, breakup of which is as under:

Rs. 13471/- towards permanent disability. Rs. 5,000/- towards pain and suffering. Rs. 200/- towards loss of income for a period of 9 days. Rs. 4,000/- towards transport.

Rs. 5,000/- towards special diet.

04. Learned Counsel submits that looking to the

410

injuries sustained by the appellant, the amount is on lower side. For the purposes of permanent disability the pension of the appellant was taken into consideration @ Rs. 529/- and the income from tuition which was proved by evidence as Rs. 3600/- was not taken into consideration. It is submitted that on other heads the amount awarded is grossly inadequate which needs to be enhanced. It is submitted that the appeal be allowed and the amount be enhanced.

05. Learned Counsel for respondents submits that looking to the injuries sustained by the appellant the amount awarded by the learned Tribunal is just and proper and no further enhancement can be made.

06. From perusal of the record it appears that on account of permanent disability the amount awarded is grossly inadequate. Even if it is assumed that the appellant was not conducting the tuition, then too appellant is a house wife and her services as a house wife be taken into consideration. On other heads also the amount awarded is on lower side. For the purposes of compensation on account of permanent disability income of the appellant ought to have been taken as Rs. 3500/- per month which includes the pension. Appellant is entitled for the following amounts:-

Permanent disability Rs.84,000/-.

Pain and suffering Rs. 5,000/-

411

Loss of Income during treatment Rs. 5.000/-

Medical expenses Rs.10,000/- Special diet Rs. 5,000/- Attender Rs. 5,000/-

Transport Rs. 5,000/-

-------------------------

Rs.1,19,000

27,671/-

-------------------------

91,329/-

------------------------

07. I have gone through the evidence adduced by the claimant on the basis of injuries sustained by appellant. After taking into consideration all the evidence on record it appears that a case of enhancement is made out. In my opinion, it will be proper to enhance the compensation by Rs. 91,329/-. In other words, in view of this, the claimant is held entitled for a total sum of Rs.91,329/- by way of compensation for the injuries sustained by appellant in the accident. The enhanced amount of Rs91,329/- shall carry interest @ 8% p.a.

08. With the aforesaid modification, the appeal stands disposed of. No order as to costs.

(N.K.MODY, J)

M.Jilla.

412

S.A.No.1202/2005

17.08.2011.

Shri K.C.Gangrade, learned Counsel for the appellants.

Heard on IA No. 4707/2011 which is an application under Order 5 Rule 20 (1-A) CPC for service of notice to the respondent No.3 Seema @ Syani by way of publication.

Learned Counsel appearing for the appellant submits that the respondent No.3 has left for Gujrat and referring to the report of the Process Server he has further submitted that presently the respondent No.3 is residing in Gujrat, therefore, the petitioner may be permitted to serve the respondent No.3 by way of Publication in the daily News- Paper.

On due consideration, the IA is allowed.

The petitioner is permitted to serve the respondent No.3 by way of Publication of notice in the daily news- paper Gujrat Samachar Sandesh Gandhi Dham Baroda, and one more News-Paper having circulation in the State of Gujrat.

The Office is directed to take appropriate steps in this regard.

(PRAKASH SHRIVASTAVA, J)

M.Jilla.

413

W.P.No.6063 /2011

29.07.2011.

Shri M.A.Bohra, learned Counsel for the petitioner. Shri Bhuwan Deshmukh, learned Counsel for respondent No.1 and 2 on advance notice. Heard on the question of admission.

In the present writ petition the petitioner has raised the limited grievance that against the order dt. 15.4.11 the petitioner had preferred the revision under Section 90 of the Motor Vehicles Act, 1988 to the respondent No.1 but the said revision has not been decided therefore, a direction be issued to the respondent No.1 for deciding the revision petition expeditiously.

Learned Counsel appearing for the petitioner submitted that on account of the pendency of the revision petition, the interest of the petitioner is adversely affected and the revision needs to be heard at an early date. Learned Counsel for the respondent has no objection for issuing a direction to the concerned respondent for deciding the pending revision.

414

In view of the aforesaid, the present writ petition is disposed of by directing the respondent No.1 to decide the petitioners revision petition dt. 27.4.11 filed against the order dt. 15.4.11 as expeditiously as possible preferably within a period of three months from the date of receipt of certified copy of this order.

C.C. as per rules.

(PRAKASH SHRIVASTAVA,J)

M.Jilla.

W.P.No.6021/2011

29.07.2011.

415

Ms. Mini Ravindran, learned Counsel for the petitioner. Shri Bhuwan Deshmukh, learned Counsel for the respondent/State.

The petitioner has filed this petition challenging the order dated 29.7.2011 by which the Competent Authority had refused to grant extension of time to vacate the official premises occupied by the petitioner.

The case of the petitioner is that he was working as Assistant Grade-III and the premises in question was allotted to him. He had retired from service on 31.1.2011 but on account of the personal difficulties he could not vacate the premises. The proceedings under the M.P. Lok Parisar (Bedhakli) Adhiniyam, 1974 were initiated against him and the order dt. 29.6.2011 was passed. Thereafter the petitioner had approached the concerned respondent for extension of time for vacating the premises which was rejected by the impugned order.

Learned Counsel appearing for the petitioner submitted that the petitioner is suffering from Prostate disease and Bladder Diverticulum and is required to undergo surgery for that purpose, therefore, some reasonable time be granted to vacate the premises.

Learned Counsel for the respondent submits that the

416

time may be granted to the petitioner only on the condition that the petitioner will give an undertaking for vacating the premises on the expiry of the time granted by this Court. In view of the aforesaid submission, the present writ petition is allowed at this stage by granting further three months time from today for vacating the premises in question on furnishing an undertaking by the petitioner before the Competent Authority within a period of one week from today stating that the petitioner will voluntarily vacate the premises in question on or before the expiry of three months period from today.

C.C. as per rules.

(PRAKASH SHRIVASTAVA,J)

M.Jilla.

W.P.No.6038 /2011

29.07.2011.

Shri Akash Sharma, learned Counsel for the

417

petitioners. Shri Mukesh Parwal, learned Counsel for the respondent/State.

Learned Counsel appearing for the petitioner submitted that the Single Bench at the Principal Seat at Jabalpur has decided the similar controversy by the order dated 26.7.2011 passed in W.P. No. 11911/2011(s) Anil Kumar Singh and ors. vs. State of M.P. & ors. whereby the respondents have been directed to issue necessary orders in respect of those petitioners already working as Jan Shikshak (BAC) and if they have completed the period of deputation posting to repatriate them back to the Parent Department and then only to start the process of appointment of Jan Shikshak (BAC) against such vacancies in accordance with the amended rules. The Counsel for the petitioner further submits that the petitioners are entitled to continue as Jan Shikshak (BAC) for the period they were appointed on the said post. Learned Counsel for the respondent prays for short adjournment to obtain instructions.

List on 2.8.2011 along with WP

No.6022/11,6023/11,6024/11,6025/11,6026/11,5904/11,59

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65/11,5966/11 and 5967/11 (s).

(PRAKASH SHRIVASTAVA,J)

M.Jilla.

W.P.No.3848 /2011

29.07.2011.

Ms. Pushpa Joshi, learned Counsel for the petitioner. Shri Kamlesh Mandloi, learned Counsel for respondent/ State on advance notice.

The writ petition is heard and finally disposed of with the consent of Counsel for the parties. The petitioner by way of the present writ petition is claiming the pensionary benefits.

The case of the petitioner is that her husband was initially appointed as Gang man on muster role on 1.12.65. Subsequently, he was regularised in contingency service w.e.f. 1.1.98 and he had died on 30.12.2003 when he was in service.

419

The petitioner, therefore, claims that the husband of the petitioner was entitled for the pensionary benefits. Consequently, the necessary benefits are required to be given to the petitioner. The petitioner had submitted the representation to the respondent which has been rejected by order dated 23.10.10 Annexure P/4 on the ground that the petitioners husband had not completed 10 years service in the work charged establishment, therefore, not entitled for the pensionary benefits.

Learned Counsel for the petitioner submitted that this issue has already been decided by the Division Bench judgment of this Court in the matter of Shrikrishna Shrivastava Vs. State of M.P. & ors. Reported in (2003 (4) MPLJ 376).

She has further placed reliance upon the Division Bench judgments which have subsequently been passed in the matter of State of M.P. & ors. Vs. Hariram dated 7.7.2010 in WA No.217/2010 and in the matter of State of M.P. Vs. Nanuram dated 8.7.2011 in WA No.253/2011 in which while following the earlier Division Bench judgment in the matter of Shrikrishna Shrivastava (supra) the requisite relief to the similarly situated persons have been granted and even the cost of litigation has been awarded.

Learned Counsel for the petitioner, therefore, at this

420

stage submitted that the case of the petitioner be reconsidered by the concerned respondent in the light of the aforesaid judgment and since the petitioner is covered by the judgment, therefore, the requisite relief be granted to her. Learned Counsel for the respondent submits that he has no objection in reconsideration of the petitioners case in the light of the aforesaid judgments.

In view of the aforesaid, the present writ petition is disposed of by setting-aside the order dt. 23.10.2010 Annexure P-4 and directing the concerned respondent to re-examine the petitioners case in respect of the grant of pensionary benefits in the light of the judgments mentioned above. The petitioner is directed to submit a certified copy of this order along with the writ petition and Annexures to the concerned respondents within a period of two weeks from today. The concerned respondent will decide the petitioners case afresh within a period of eight weeks thereafter. If the petitioner is found entitled, the necessary benefits will be extended to the petitioner. In case of any adverse decision, a reasoned speaking order will be passed.

C.C. as per rules.

421

(PRAKASH SHRIVASTAVA,J)

M.Jilla.

M.Cr.C.No.4869/2011

27.07.2011.

Shri Rahul Sharma, learned Counsel for the petitioner.

Shri Pramod Mitha, learned GA for the respondent/State.

Shri T.N.Singh, learned Senior Counsel with Ms. Hemlata Gupta and Shri Vivek Singh, learned Counsel for the complainant.

This is second bail application filed under Section 439 of the Cr.P.C. in Crime No.116/2011 for an offence punishable under Section 302/34 of IPC. Learned Counsel for the petitioner submits that the first application filed by the petitioner was dismissed by this Court vide order dated 20.4.11 in M.Cr.C. No. 3087/11. The allegation against the petitioner is that

422

Tejpalsingh and Rajkunwar were murdered. It is submitted that petitioner is a lady her husband Mahendrasingh and two other members of the family are the accused. None of them have been bailed out. It is submitted that it is Mahendrasingh who has caused gun shot injury with the result Tejpalsingh and Rajkunwar died. The only allegation against the petitioner is that upon her instigation fire took place. It is submitted that in the facts and circumstances of the case, the petition filed by the petitioner be allowed and the petitioner be released on bail. It is submitted by the complainant that dispute is between the two families pending since 1995. It is submitted that in relation to the order of the Civil Court, the petitioner party is creating problem. It is submitted that if the petitioner is released on bail, then the son of Tejpalsingh who is infant aged 5 years may be killed. It is submitted that if the petitioner is released on bail then the possibility of recording of evidence without any threat cannot be ruled out. It is submitted that petition be dismissed.

After taking into consideration all the facts and circumstances of the case and keeping in view the fact that

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the petitioner herein is a woman and the full allegation against the petitioner is that upon her instigation fire took place by the husband of the petitioner, the application filed by the petitioner is allowed only on the ground that the petitioner is a woman on the condition that the petitioner shall furnish the bail bond of Rs. 25,000/- (Rs. Twenty Five Thousand) only and surety bond in the like amount and shall furnish an affidavit before the learned Court below that till the disposal of the sessions case, she will not visit Village Bhunwasa and shall remain at Ujjain. If the condition is violated and the application is filed then the bail may be cancelled by the Trial Court itself. C.C. as per rules.

(N.K.MODY,J)

M.Jilla.

424

M.Cr.C.No.5047/2011

27.07.2011.

Shri K.C.Wagela, learned Counsel for the applicant. Shri Pramod Mitha, learned GA for the respondent/State.

This is second bail application. First was dismissed on 16.6.2011. Learned Counsel for the applicant submits that the applicant is young man aged 23 years and is student of B.E. Applicant is in jail from 3.5.11.

As per the case of the prosecution the applicant was in love with Ranu @ Hemlata deceased and the applicant refused for marriage. It is submitted that applicant has not committed any offence. The only evidence is a declaration made by the deceased in which she has stated that she is committing suicide because the applicant has backed out the promise. It is submitted that the applicant be released on bail. Also heard the submission of the State Counsel. Considering the nature of the allegation and the evidence collected the application filed by the applicant is allowed. The applicant is directed to be released on bail upon his furnishing personal bond in the sum of Rs. 25,000/- (Rs. Twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Court below for his further appearance on the dates as may be directed.

C.C. as per rules.

(N.K.MODY,J)

M.Jilla.

425

M.Cr.C.No.5080 /2011

27.07.2011.

Shri Manish Sharma, learned Counsel for the applicant. Shri Pramod Mitha, learned GA for the

respondent/State.

Learned Counsel for the applicant submits that first bail was dismissed on 20.4.2011. Applicant is a young man of 23 years. The allegation against the applicant is that the applicant brought the prosecutrix to his home. It is submitted that since the applicant was in love with the prosecutrix, therefore, she came with the applicant at his home. Parents of the applicant were also impleaded as accused but they have been bailed out by this Court.

Considering the nature of the allegation and the evidence collected the application filed by the applicant is allowed. The applicant is directed to be released on bail upon his furnishing personal bond in the sum of Rs. 25,000/- (Rs. Twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Court below for his further appearance on the dates as may be directed.

C.C. as per rules.

(N.K.MODY,J)

M.Jilla.

426

M.Cr.C.No.5678/2011

25.07.2011.

Shri Manoj Saxena, learned Counsel for the petitioners.

Shri Sharma, learned Counsel for the respondent/State.

Both the parties are living together and the complainant is not willing to prosecute the husband. They have filed an application for compromise in the Lower court under Section 320 of the Cr.P.C. The said compromise was not taken on record on the ground that the offence is not compoundable. However, there are number of judgments which goes to show that if parties have entered into settlement partly in the family dispute the Court must allow such compromise to be taken on record and exercise powers under Section 482 Cr.P.C.

02. Both parties are present and said that they are living together and the complainant wife has no complaint

427

against the husband.

03. In these circumstances, the compromise entered into between the parties dated 10.3.2007 it is ordered that the Appellate court will consider the appeal in the light of the compromise arrived at between the parties.

04. The certified copy whereof has been filed in this Court.

05. Copy of the order be sent to the Appellate Court.

06. Petition is disposed of. C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.4995/2011

25.07.2011.

Shri Sharma, learned Counsel for the petitioner/State. This is an application filed by the petitioner/State for seeking leave to file an appeal against the order of the Special

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Judge dt. 19.3.11 whereby, the Special Judge NDPS Mandsaur has been pleased to acquit the accused persons in relations to a charge levelled against them regarding seizure of certain material.

02. Perusal of paragraph 33,34,35 and 36 of the impugned judgment goes to show, that the provisions including NDPS Act have not been complied with by the authorities during the course of investigation.

03. It has been observed by the court, that besides not using different seals while sealing the sample, as is mandatory in the light of Section 52-A of the NDPS Act, many other violations have been made by the Investigating Officer. In fact even the seized articles were not even kept in safe custody. The 78 bags though contained seal of the Narayangarh Police Station but none of the bag was containing the seal of the Executive Magistrate. The particulars were also not there. Particulars of the goods seized were not also mentioned on the bag. Regarding the samples taken it is not clear as from which bag the samples were taken. There are over writings also in the documents prepared. As such, the court has found that the entire procedure adopted by the prosecution was violating of the relevant provisions of the NDPS Act and as such, the story of the prosecution was not free from doubt and the accused

429

persons, therefore, could not be held guilty beyond reasonable doubt. As such relying upon Vinay Jain vs. State of M.P.

2010 CRLR (MP) 701 the Trial Court has acquitted the accused persons.

04. I find no infirmity in the order of the Trial Court. Dismissed.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.5574/2011

25.07.2011.

Shri Sharma, learned Counsel for the petitioner/State.

This order shall dispose of an application filed by the petitioner seeking leave to file an appeal against the order of the Special Judge Mandsaur, in Special Sessions Case No.171/08 (old number 39/06) instituted under Section 8 of the NDPS Act for convicting the accused

430

persons under Section 18 of the Act.

02. In short it is the allegation of the prosecution that on 17.3.06 an information was received by Sahayak Up Nirikshak Shivmangal Singh Sengar PW-5 from a informant that accused Banshilal resident of Fatehgarh wearing pant of grey colour and striped shirt is in possession of opium and that he was sitting near Bachdo Ke Khandar and that the said person can be arrested if proper steps are taken.

03. Further case of the prosecution is that rojnamcha was prepared about this information (Ex.P/26) and a raiding party was constituted. Two independent witnesses were also summoned. Later on Constable Sohansingh along with two witnesses came to the Police Station and thereafter, after preparing a panchnama of the information and entering the same in Rojnamcha information was sent to the higher officials and then the raiding party reached where the accused was stated to have been sitting. As soon as the raiding party reached near the spot, the accused whose looks out were like the particulars given by the informant tried to run away. Thereafter he was apprehended and after telling him his rights to get searched

431

in presence of a gazetted officer, the personal search of the accused was taken and then certain contraband were seized from him which were the plastic bag.

04. The trial was thereafter held where the witnesses were examined by the prosecution.

05. However, during the course of trial the Special Judge has found that there were number of infirmities in following the relevant provisions of the NDPS Act in as much as, there were contradictions with regard to the time regarding preparing of rojnamcha and recording of information in as much as, while as per Ex.P/32 the police had started for the place of incident at about 11 am and had come back at about 4 pm, according to Constable Chansingh they had started at 10.45 am and come back at

12.50. There were other contradictions also which have been noticed.

06. It was also found that the selling of the contraband was not done in accordance with the rules in as much as, the contraband was found sealed of the concerned police station and was not having seal of the Executive Magistrate. There is also some contradiction in the statement made under Section 27of the Evidence Act.

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There were also overwriting on that document.

07. In addition to that it was also noticed by the Trial Court that there were violations of Section 52 of the NDPS Act as mentioned in para 29 and 30 of the judgment. Thus, because of this reason, the Trial Court has found that the case of the prosecution was not proved beyond reasonable doubt and the benefit was given to the accused they were acquitted.

08. While considering the question of the grant of leave to file an appeal this Court is required to see that if two views are possible one of which goes in favour of the accused and the one which goes in favour of the prosecution then the one which goes in favour of the accused is to be followed.

09. Consequently, no infirmity is found in the judgment of the Trial Court. Application is dismissed.

(M.C.GARG,J)

M.Jilla.

433

M.Cr.C.No.5624/2011

25.07.2011.

Shri Sharma, learned Counsel for the petitioner/State. Heard on IA 4599/11 which is an application filed under Section 5 of the Limitation Act. The delay is hereby, condoned.

02. This is an application for leave to file an appeal against the judgment of the Special Judge NDPS Ratlam, dated 17.3.2011 whereby, the Special Judge has acquitted the accused persons on account of various deficiencies found during the investigation.

03. A perusal of the judgment goes to show that besides the eye-witnesses having not supported the case of the prosecution, the mandatory provisions of Section 52,55 and 57 of the NDPS Act were not complied with. Not only that, the sample sealed which were used at the time of seizure of the contraband were not handed over to the independent witness. There was also delay in sending the sample for examination to the FSL. Replying upon the judgment of Ramji Singh Vs. State of Haryana 2007 (2) EFR 329 the Trial Court held, that once there was a delay of more than 72 hours in sending the contraband for examination to FSL, and the sample seal was

434

kept by the Police Officer was not handed over to independent witness, the same was fatal to the case of prosecution. As such, holding that there was violation of Section 50,55,57 and 52-A of the NDPS Act which are mandatory in nature and the independent witnesses have not supported the case of the prosecution, the Trial Court acquitted the accused persons. Some discussion by the Trial court regarding the facts of this case and the evidence which came on record is reproduced hereunder:-

31.

04. Considering all these facts no infirmity can be found in the approach of the Trial Judge.

05. Consequently, application for leave to file an appeal filed by the State is dismissed.

(M.C.GARG,J)

M.Jilla.

435

M.Cr.C.No.2401/2011

25.7.2011.

Shri Sharma, learned Counsel for the petitioner/State. This is an application seeking leave to file an appeal against the order of the Special Judge NDPS Mandsaur, dated 22.11.10 whereby, the Special Judge has been pleased to acquit the accused persons taking note of number of contradiction in the story of prosecution and in particular, the independent witnesses have not supported the case of the prosecution.

02. Some observations made by the Trial Court regarding violations pointed out during the course of the trial are as follows:-

18.

03. The provisions of NDPS Act are mandatory in nature which are required to be followed and if the provisions are not followed, then the benefit goes to the accused.

04. I find no infirmity in the order. Leave to file an appeal is dismissed.

(M.C.GARG,J)

436

M.Jilla. Cr.R.No.729/2011

22.07.2011.

Shri Jitendra Bajpai, learned Counsel for the petitioner.

Matter requires consideration.

Let the record of the case be called. Notice be issued to the respondent. Shri Sharma, learned Counsel for the respondent/State accepts notice. List the matter on 18.10.2011.

In the meanwhile, the petitioner be released on bail on his furnishing bail bond in the sum of Rs. 10,000/- (Rs. Ten Thousand) only with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court Registry on 18.10.2011 and on subsequent dates as may be fixed in this behalf.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

437

M.Cr.C.No.5648/2011

22.07.2011.

Shri Dharmendra Chelawat, learned Counsel for the petitioners.

The short point involved in this petition is as to whether the petitioner was entitled to cross-examine the complainant despite having not availed the opportunity when the complainant was examined and petitioner was called upon to cross-examine the petitioner.

It is the case of the petitioner that on that day his Counsel was not available and, therefore, he could not cross-examine the complainant but he cooperated with the prosecution and allowed the evidence of the other witnesses recorded.

The case is at the stage of defence evidence which is yet tobe started. In the interest of justice, one opportunity is granted to the petitioner to cross-examine the complainant on the next date or a date as may be fixed by the Trial Court positively. With these observations, the petition is disposed of. C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

438

M.Cr.C.No.5156/2011

22.07.2011.

Shri Sharma, learned Counsel for the petitioner/State. In a case filed under Section 435/34 IPC the three witnesses mainly Jairam, Sama and Nagu and Shambhubai w/o Jairam only appeared for the prosecution despite Jairam, Sama and Nagu are real brothers whereas Shambhubai is wife of Jairam. No independent witness to prove the victim of putting the agricultural land on fire was produced by the witnesses. They have also not stated anything that they informed about this incident to anyone else. They also admitted that there was a dispute going on between the witnesses and the complainant regarding the same very land in the Court. In these circumstances, the Court found that the statement of the three witnesses who were brothers and their wife could not be the basis of accepting the case of the prosecution. The Court has further noticed the conduct of Jairam, Sama and Nagu who have not taken any steps to put the fire off after seeing the fire as alleged by them. It is not a case that the accused persons had brought any weapon which would have prevented the three persons to put the fire off. Considering the conduct of the witnesses being unnatural and previous enmity between the

439

witnesses and the complainant party regarding the same very land and in the absence of any independent witness, the Court has come to a conclusion that the case of the prosecution was not proved beyond reasonable doubt and, therefore, these accused persons were acquitted from the impugned judgment dated 9.5.2011.

02. It is against the aforesaid judgment, the State has filed an application for leave to grant appeal against the judgment of acquittal. It is submitted by the learned Counsel for the petitioner that the reasons given by the Court below in having not accepted the prosecution case on the ground that the three witnesses were real brothers is not sustainable. It is also submitted, that merely because an independent witness has not come forward can also not be a ground for acquittal.

03. I have gone through the judgment of the lower Court. I find that not only the aforesaid two grounds which prove upon the Court to acquit the accused persons, there were other grounds also conduct of the witnesses who have not taken any step to put the fire off and other their enmity with the complainant with the accused regarding the same very land. These are two other grounds which the Court has taken into consideration while coming to a conclusion that it was not a case where the accused persons should have been convicted.

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04. I find no infirmity in the order. Even otherwise it is well settled, that if two views are possible, a view which favours the accused person must prevail. Thus, the application for leave to file appeal is dismissed.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.5206/2011

22.07.2011.

Shri R.S.Chauhan, learned Counsel for the petitioner/State.

This is an application filed the State of M.P. against the order dated 29.3.2011 whereby, the Special Judge (Atrocities) Shajapur, has been pleased to acquit the accused persons taking note of the statement of witnesses in particular, complainant Sarita PW-5 in as much as, number of important facts which the complainant has deposed in her statement in the Court were not mentioned by her in the FIR. The conduct of the petitioner and her reference to the allegation against Mahendra despite the

441

fact Mahendra including her statement that there was nobody else in the room where the accident happened. Even though, her sister Pooja was also sleeping in the same house. Moreover, her statement that Mahendra caught hold of her mouth for about half an hour and at the same time had a knife in his hand was also found to be unbelievable because neither in the FIR nor in the statement under Section 161 Cr.P.C. any such statement was made by the complainant. Moreover, she also has not stated that her mother and father were awake and saw the incident. In her statement under Section 161 Cr.P.C. whereas, in her statement in the Court she says that her mother and father were awake and saw accused persons going away from the place of incident.

02. Considering all these facts which goes to show, that there were many contradictions in the statement of the complainant FIR and her statement under Section 161 Cr.P.C. the Special Judge has been pleased to acquit the accused persons. According to the learned Counsel for the petitioner/State the contradictions relied upon by the Special Judge are not material and they do not go to the root of the case. However, this contention is of no

442

consequence because if one looks into para 14, 16, 17 and 19 of the impugned judgment it is apparent that which other material fact has been considered by the Special Judge in the light of the statement made by the complainant, FIR and her statement under Section 161 Cr.P.C. The contradictions pointed out are material and goes to the root of the case.

03. In these circumstances, I find no infirmity in the order of the Special Judge. Consequently, the application for leave to file an appeal is dismissed.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.3612/2011

21.07.2011.

Shri Sunil Jain, learned Counsel for the petitioners. Shri Sharma, learned Counsel for the respondent/State. This petition filed under Section 482 Cr.P.C. seeks quashing of the order of the 1^stRevisional Court dated 4.2.2011 whereby, the 1^stRevisional Court has upheld the

443

order of the JMFC Dharampuri Distt. Dhar, where an application was filed by the petitioner for discharging him in view of a lacuna in the report of the public analyst regarding the layer of oil in as much as, the report does not make a mention as to at what level that layer was in existence about the food product therefore, it is submitted that the said report was contrary to relevant rule i.e. Rule 16.16 of Appendix-B of Rule 1955.

02. The fact that there was no mention in the report regarding the layer of oil has also been noticed by the Additional Sessions Judge in para 6 of judgment. In fact in the said paragraph the Court has even gone to the extent in saying that no case is made out, however, merely because a cognizance was taken by the JMFC, the Court felt, that it is not the stage where the application of the petitioner could have been allowed.

03. This position of law is not correctly understood by the learned Magistrate or the Sessions Judge in as much as, Section 245 sub-clause (2) of the Cr.P.C. reads as under:-

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of

444

the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

04. A bare reading of the aforesaid proposal goes to show, that an order under Section 245 (2) of the Cr.P.C. can be passed at any stage.

05. In view of the aforesaid once the Sessions Court was of the view that the report of the public analyst suffered from lacuna regarding opinion about the layer of the oil in the sample in question which reflected that the report was contrary to the rules. The Sessions Court ought to have considered the case of the petitioner in that light.

06. The petitioner has also brought to my notice a judgment of this Court delivered in the case of Bansal Stores vs. State of M.P. & anr. I.L.R.(2008) M.P.1830 wherein the point in issue was directly involved and considered. The relevant paragraph of the judgment is reproduced hereunder:-

9. Present is a matter which would fall within clause (ii) which refers to pickles in oil. A fair understanding and reading of clause

(ii) would show that the first requirement under the said clause is that the vegetable percentage in the final produce should not be less than

445

60 percent. The alternative requirement is that the pickle shall be covered with oil so as to form a layer of not less than 0.5 cm. about the contents. This requirement is not the final one because the alternative proposes that the percentage of the oil in pickle shall not be not less than 10 percent. The first requirement appears to be a visual requirement while the alternative requirement appears to be requirement for the contents. The prove the case of adulteration the prosecution in view of the language employed in clause

(ii) has to prove that the pickle was not covered with oil so as form a layer of not less than 0.5 cm. Above the contents, the prosecution at the same time would also be required to prove that the percentage of oil in pickle was less than 10 percent. If both the lapses are proved, only then the pickles in oil would be deemed to be adultered. In a given case if the prosecution comes out with the case that the pickle did not have the required layer of the oil and in the said case the accused proves as a fact that the pickle contained oil which was not less than 10 percent, then in such a case in the humble opinion of this Court the pickle in oil cannot be treated to be adulterated.

446

10. There is a subtle distinction between the words 'and' and 'or'. The word 'and' is ordinarily conjunctive while the word 'or' is disjunctive. In the present matter the word 'or' cannot be read as 'and' to mean that if the sample fails to meet either of the requirement then it would be taken to be adulterated. The intention of the legislature in adopting the word 'or' is to provide a solace and shelter to the accused that if he proves that the oil formed a layer of not less then 0.5 cm over the contents or in the alternative he may prove that the pickle in oil contained 10% of more oil

adulterated. If the accused proves one of the standard then he cannot be prosecuted.

11. If the prosecution proves only one of the defects and the accused proves one of the defence available to him then the defence would

supersede the attack made by the prosecution.

07. In that case considering the report of the public analyst, whether the report was silent about the layer of oil which is required to be not less than 10%, the Court felt it appropriate to allow the petition filed by the petitioner in that case only on that ground.

08. I have heard the learned Counsel for the

447

respondent/State.

09. The learned Counsel fairly conceded that in so far as the rules are concerned and the legal position is concerned, the order of the Sessions Court may not be sustained but it is submitted, that a proper course could be to await the outcome of the trial and that such if at all, the point is to be considered it can be so considered.

10. However, this will not be of any consequence for the simple reason, knowingly fully well, that ultimately the prosecution failed is asking the petitioner to face the trial would be not in the interest of justice. Thus, the contention of the petitioner is sustainable on all force.

11. Accordingly, the petition filed by the petitioner is allowed, the complaint filed by the public analyst against the petitioner pending for trial in the Court of JMFC bearing No.240/03 ( New No.576/10) is quashed.

Bail bond of the petitioners would stand discharged.

(M.C.GARG,J)

M.Jilla.

448

Cr.R.No.675/2011

20.07.2011.

Shri Vikas Rathi, learned Counsel for the petitioners. Shri G. Laad, learned Counsel for the respondent. This is a revision filed by the petitioner under Section

397 Cr.P.C. assailing the judgment of the 1^stAppellate Court whereby, the said Court has confirmed the conviction and sentence of the petitioners under Section 325/34 IPC and thereby sentencing them to undergo RI for one year and also to pay fine of Rs. 200/- In case fine could not be paid additional sentence was to be undergone.

02. As per the case of the prosecution, the dispute had arisen when a day before the date of the incident pipe belonging to the complainant was broken by the children of Amarlal and on this account Amarlal agreed to bring a second pipe but he brought a broken pipe in place of a new pipe. In these circumstances, at about 1am in the night the complainant and his father who were sleeping in the agricultural field, was beaten by the petitioners with a lathi. The complainant also tried to save the fight but he also got injuries. On that basis a

449

complaint was registered at the instance of the complainant charge sheet was filed, after investigation was complete.

03. The concerned JMFC convicted the petitioners under Section 325/34 IPC.

04. An appeal was filed against the aforesaid order. It has been argued on behalf of the petitioners that it was allegedly an accident which took place at 1am in the night and, therefore, the identity of the petitioners could not have been established but this fact has not been considered by the 1^stAppellate Court.

05. The Sessions Court however, did not agree with the aforesaid submission of the petitioners. The Sessions Court also did not find the argument of enmity as another defence raised by the petitioner and thereby, confirmed the sentence of the petitioner. In this regard the 1^stAppellate Court also observed that there was sufficient light which could establish the identity of the petitioners.

06. The learned Counsel for the petitioner however, submits that there is nothing on record that the petitioners are habitual offenders. It is thus, submitted that punishment for an offence under Section 325 can only be maximum upto 7 years RI. As such, it was a fit case where the Lower Court should have considered granting probation to the appellants/petitioners instead of sentencing them to undergo RI as ordered.

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07. The learned Counsel for the petitioner further submits that if it was a case of probation then the Trial Court as well as the 1^stAppellate Court ought to have given reasons as per the provisions contained in Section 361 Cr.P.C. however, that has also not been done.

08. It is thus, submitted, that the order of the Trial Court as well as the 1^stAppellate Court even if it is held that the petitioners/appellants are guilty of the offence alleged, they cannot be sent to jail and are required to be released on probation.

09. I have heard the learned Counsel for the respondent/State. In fact opportunity was also given to the learned Counsel to obtain report about the antecedents of the appellants/petitioners to find in case they are persons of doubtful character or are previous convicts or are habitual offenders but no such report has been obtained by the respondent. In fact it is submitted that there is no such adverse report against them.

10. In these circumstances, considering the mandate of Section 360 Cr.P.C. as well as the provisions of Section 361 Cr.P.C. , it is a fit case where the petitioner is required to be released on probation for a period of two years on furnishing a bond of probation in the sum of Rs. 25,000/- (Rs. Twenty Five

451

Thousand) only with one surety in the like amount to the satisfaction of the Trial Court which bond shall be furnished within one week from today. It is only after the release of the bond of probation, the petitioner shall be released from the custody.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.4789/2011

20.07.2011.

Shri O.P.Solanki, learned Counsel for the petitioner. This is a petition filed by the petitioner under Section 482 of the Cr.P.C. after having availing remedy of revision under Section

397 Cr.P.C. whereby, the Additional Sessions Judge Dhar, has been placed to confirm the order of maintenance granted in favour of the respondent the second wife of the petitioner to the tune of Rs. 1500/- per month only.

02. As far as the allegation made against the wife which disentitles her to seek maintenance the Court has found, are matters of evidence and cannot be gone into at the stage of passing interim

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orders.

03. Taking into consideration that only a sum of Rs. 1500/- per month has been awarded and the petitioner is a landlord having agricultural land in his name, I find no reason to interfere in the order of the Additional Sessions Judge by exercising my powers under Section 482 Cr.P.C. at this stage

Dismissed.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.1184/2011

19.07.2011.

Shri Prateek Maheshwari, learned Counsel for the petitioner.

This petition has been filed under Section 482 Cr.P.C. by the petitioner who was unsuccessful in his revision petition which he preferred regarding disposal of his application under Section 91 Cr.P.C. vide order dated 15.12.10 passed by JMFC Indore.

Briefly stating the facts giving rise to the present

453

petition are : that a complaint under Section 138 of the Negogiable Instruments Act was filed by the respondent against the petitioner before the Court of JMFC. The complaint was based on dishonor of three cheques which the petitioner had issued to the respondent and which all were dishonored.

Despite a notice of demand having been served upon the petitioner he made no payment towards the amount claimed in the notice. Thus, the respondent filed the complaint.

That during the pendency of the said complaint, the petitioner/accused filed an application under Section 91 of the Cr.P.C. for procuring certain documents from the complainant/respondent before his cross-examination. The documents which were sought to be summoned by the petitioner were income tax returns and the books of accounts of the respondent. The respondent denied filing income tax returns and also submitted that the purpose of filing that application was only to delay the proceedings in as much as, it was not an denial on the part of the petitioner that he had not issued the cheques in question. In reply the respondent very categorically stated that

454

whatever documents were necessary for prosecuting the complaint, the same were filed. He also stated that in addition to that he was not in possession to any other document. He also stated that the petitioner is not taken a defence that he signed blank cheques or that the cheques which were dishonored were stolen or lost. As such the request made by the petitioner was denied. The learned JMFC has examined the issue while deciding the application under Section 91 Cr.P.C. and has dismissed the application by detailed order. It has been very specifically stated that the income tax returns were not relevant for the purpose of deciding the complaint in as much as it was not the case of the petitioner that the respondent was a money lender whose purpose was to earn interest only.

The Revisional Court has affirmed the order of the JMFC relying upon a Supreme Court judgment delivered in the case of Sethuraman vs. Raja Manikem reported in 2009 Vol-1 CLDC Page 241.

I find no infirmity in the order of the Revisional Court or the Lower Court.

Dismissed.

455

(M.C.GARG,J)

M.Jilla.

Cr.R.No.304/2009

19.07.2011.

Nobody is appearing for the petitioner. Shri G.Laad, learned Counsel for the respondent/State. This is a petition filed under Section 397 Cr.P.C. assailing the order passed by the 1^stAppellate Court dated 4.3.2009 whereby, the appeal filed by the petitioner against his conviction under Section 468 and 471 IPC by the Court of JMFC whereby he was awarded sentence of 2 years RI for each of the offence along with the fine of Rs. 2,000/- each has been up-held.

A perusal of the impugned order goes to show that the petitioner obtained service by furnishing false documents regarding his essential qualification of XIIth pass in as much as, even though he had not cleared examination of the XIIth

456

standard in the year 1995 in which he was sown as unsuccessful. He produced documents as if he had cleared the examination and on that basis obtained the employment. On investigation it was found that the particulars furnished by the petitioner regarding his qualification are not correct and in fact even when investigation was made and he was asked to give an explanation he accepted that the mark sheet Ex.P/12 was not the correct mark sheet and it is on that basis, he was convicted. The Revisional Court has analysed the entire evidence and has come to the conclusion that both the offences under Section 468, 471 IPC the petitioner obtained service on the basis of fraud and fabricated documents knowing fully well that they were forged and fraudulent. No infirmity is found in the order of the ASJ calling for any interference by this Court under Section 482 Cr.P.C.

Accordingly, the petition is dismissed.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.549/2009

19.07.2011.

457

Nobody appears for the petitioner. Shri P.V.Bhagwat, learned Counsel for the respondent. Counsel for the respondent Shri Bhagwat submits that the parties have entered into compromise in the divorce proceedings which are in fact in the Court of Additional District and Sessions Judge Amalner District Jalgaon Maharashtra where the parties have settled their disputes on 13.6.2011 whereby, all the claims of the petitioner including her claim under Section 125 Cr.P.C. has already been settled. The dues of the petitioner as per the settlement has been paid to her.

It appears that this is the reason that nobody is appearing for the petitioner.

Accordingly, the revision petition is dismissed as having become infructuous in view of the compromise entered into between the parties.

The respondent is however, directed to file a translated copy of the settlement within two days from today.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.575/2009

19.07.2011.

458

Ms. Rachna Dube, learned Counsel for the petitioner.

Shri R.N. Gupta, learned Counsel for the respondent. Without any evidence led on record the Family Court has believed that the petitioner was capable of maintaining herself only on the basis of her statement that she was working in a Sonography Centre. The Court has also believed that as the husband was having income of only Rs. 1800/- per month.

The facts go to show that proper appreciation of evidence has not been done by the Family Court. Moreover, the petitioner also submits that she is now suffering from cancer and is incapable of working anywhere.

In these circumstances, the case is remanded back to the Family Court to decide the matter afresh after taking additional evidence of both the parties wherein, the parties will clarify their income if any which is derived by both the parties. The needful be done within three months after the parties appear in the Family Court for which purpose the case be listed before the Family Court on 9.8.2011.

459

Copy of the order be also sent to the Court concerned.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.6586/2007

19.07.2011.

None for the petitioner. Shri C.R. Karnik, learned Counsel for the respondent/State.

This petition filed under Section 482 Cr.P.C. for quashing of charges framed against the petitioner for offences punishable under Section 420 IPC in Criminal Case No. 68/2004 pending in the Court of JMFC Neemuch, was dismissed for non-prosecution vide order dated 18.6.2009 on account of non-appearance of the petitioners Counsel.

460

On an application filed by the petitioner, the petition was restored in terms of the order dated 19.3.2010 but it was subject to the following conditions:-

(1) Record of the trial Court shall immediately be transmitted to the trial Court to continue with the trial as early as possible and if the applicant wants to rely upon any of the document he may file it after obtaining the certified copy from the trial Court.

(2) The original petition M.Cr.C. No. 6586/07 be restored subject to depositing the costs of Rs. 2500/- in the CCD Account within 10 days. If the amount has not been deposited within the aforesaid period the order passed today shall not be given effect and the original M.Cr.C. No.6586/07 be treated as dismissed.

None of the

aforesaid two conditions have been complied with by the petitioner as neither any certified copy of the record which is relevant and which the petitioner would like to refer has been filed on record nor the receipt of the cost is enclosed. Dismissed.

461

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.4/2009

19.07.2011.

Ms. Jyoti Tiwari, learned Counsel for the petitioners. Shri Gaurav Verma, learned Counsel for the respondents.

Parties submit that they would submit to the jurisdiction of the Mediation Cell for the purposes of settlement of the disputes which is in fact between father- in-law and daughter-in-law in the absence of the husband who has expired.

It is agreed that both father-in-law and the daughter- in-law would appear in person before the Mediation Cell where the Principal Registrar would nominate a Senior Mediator to talk to both the parties.

The Principal Registrar will also intimate both the parties about the name of the Mediator and would request thenamed Mediator to remain present in the Mediation Cell on the date fixed by this Court.

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The nomination of the Mediator will be done within one week from today and the parties will appear before the Mediator after 15 days of such nomination. A copy of the order be sent to the Principal Registrar and copy be given to both the parties.

List this matter after the efforts are being made by the Mediation Centre on 6.9.2011 on which date if the mediation is not possible then the matter may be heard finally.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.3261/2009

19.07.2011.

None for the petitioner. This is a petition filed by the petitioner under Section 482 Cr.P.C. against the order of the Additional Sessions Judge Mandleshwar, (WN) in Criminal Revision

463

No. 18/2008 dt. 25.3.09 whereby, the Additional Sessions Judge confirmed the order passed by the JMFC Kasrawad partly allowing the application of the petitioner under Section 125 Cr.P.C.

The petitioner was married with the respondent and from the wedlock she also has a daughter. There were disputes between the petitioner and the respondent which led to filing of a FIR at Police Station Kasrawad, against the respondent under Section 498-A and 323 IPC. The petitioner on the basis of her allegation that the respondent has agricultural land and the petitioner wanted maintenance from him for herself as well as for her daughter, served a notice upon the respondent. However, the notice though was received and replied the maintenance was not granted and, therefore, she filed the complaint under Section 125 Cr.P.C.

After the evidence was completed, the JMFC Kasrawad, granted maintenance to the tune of Rs. 700/- to the petitioner from the date of the order every month. It was this order which was assailed in revision. The Revisional Court up held the order of the Trial Court and it is against this order, the petitioner has come

464

under Section 482 Cr.P.C. I perused the order passed by the JMFC Kasrawad, as well as the order passed by the Revisional Court. From perusal of the order passed by the JMFC it is seen that the petitioner has not been able to prove that she was legally wedded wife of the respondent and, therefore, the Court has granted maintenance to the minor daughter as they were not disputing parental status of the petitioner. As far as the Revisional Court is concerned, it has been confirmed that the petitioner was already married with some one and, therefore, could not have claimed any maintenance from the respondent.

There is no infirmity in the order which calls for interference by this Court. Dismissed.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No. 4787/2011

465

18.07.2011.

Shri Gaurav Laad, learned Counsel for the petitioner/State.

This application for leave to file an appeal has been filed by the petitioner aggrieved by the order dated 29.3.2011 passed by Additional Sessions Judge Rajgarh in having convicted respondents in Sessions Case No. 240/2010 under Section 325 of the IPC but acquitting them under Section 326 IPC. The petitioner is also aggrieved of the sentence awarded to the respondents under Section 325/506 IPC in as much as, the Court has directed release of the respondents on the sentence already undergone by them which was to the tune of six months besides directing them to also pay fine. The compensation amount has also been awarded in favour of the respondents under Section 357 Cr.P.C.

While submitting that it was a case where offence under Section 326 IPC was also made out the Counsel of the petitioner submits that evidence has come on record that the injury on the had of Mahesh was a serious injury and the same was inflicted with a sharp edged weapon and, therefore, it was a case where the conviction under Section 326 IPC also should have been fastened on the respondents.

Considering the failure of the prosecution to prove the

466

counter case which was pending at the instance of the complainant party against Mahesh and Murlidhar and the clear evidence that it was Radheshyam who used farsi and the other accused persons only used lathi which is a cause of injury on Mahesh the Court has not found a case under Section 326 IPC against the accused persons. The reason probably appears to be that the evidence of the prosecution was not sufficient to prove that the injury on the head of Mahesh was caused by a sharp edged weapon.

In these circumstances, when the Court had come to a conclusion that offence under Section 326 IPC was not made out against the respondents because of lack of evidence, this Court has to be slow in interfering with such type of conclusion.

As the view taken by the Trial Court is reasonable view and such view for the accused cannot be interfered with. As far as the sentence awarded to the respondents is concerned, it is not a case of the petitioner that the accused persons were habitual criminals. Considering the provisions contained under Section 360 Cr.P.C. as well as under the Probation of Offenders Act if the Court has released the respondents being first offenders only on the sentence already undergone which also is not less than six months in this case

467

and has also awarded fine which should take care of compensation to be awarded to the victim by invoking Section

357 Cr.P.C. No fault can be found in the approach of the Trial Court.

Dismissed.

(M.C.GARG,J)

M.Jilla.

Cr.R. No.719/2011

15.07.2011.

Shri Tushar Bhedasgaonkar, learned Counsel for the petitioner.

If the petitioner deposits the entire balance amount of fine, he may be released on bail pending hearing of this matter on furnishing bail bond in the sum of Rs. 10,000/- (Rs. Ten Thousand) only with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 14.9.2011 and on subsequent dates as may

468

be fixed by the Registry in this behalf. List on 14.9.2011.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.723/2011

15.07.2011.

Shri T.C.Jain, learned Counsel for the petitioner. The Sessions Court has taken note of the statement made by Dr. V.L.Sarvate (PW-5) who had not examined the patient but has opined that it is a case under Section 325 IPC. It is submitted on behalf of the petitioner that once the doctor had not examined the patient, his report could not have been taken into consideration.

Shri G.S. Chauhan, learned Counsel for the

469

respondent/State accepts notice. There is a prayer for suspension of sentence by the petitioner.

Since the matter requires consideration, the petitioner is directed to be released on bail pending hearing of this matter on furnishing bail bond in the sum of Rs. 10,000/- (Rs. Ten Thousand) only with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 16.8.2011 and on subsequent dates as may be fixed by the Registry in this behalf.

Record be also summoned.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.727/2011

15.07.2011.

470

Shri Sanjay Sharma, learned Counsel for the petitioner. Shri G.S. Chauhan, learned Counsel for the respondent/ State.

The only point raised in this matter is that the order refusing grant of supardagi of the vehicle in question by the Magistrate and confirmed by the Sessions Court is not sustainable even if, the vehicle was liable to be confiscated. Reliance has been placed upon the judgment of the Hon'ble Supreme Court reported in IV (2002) CCR 345(SC)

Sunderbhai Ambalal Desai vs. State of Gujarat wherein it has been held that:-

"In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles."

In view of the aforesaid, the petition is allowed. It is ordered, that the vehicle in question shall be released on furnishing supardagi of Rs. two lacs with one surety in the like amount to the satisfaction of the Trial Court.

471

C.C. as per rules.

Cr.R.No.614/2011

12.07.2011.

Shri T.C.Jain, learned Counsel for the petitioner. Shri G.S.Chauhan, learned Counsel for the respondents. This is a petition filed under Section 397 of the Cr.P.C. assailing the judgment of the 1^stAppellate Court dated 13.6.2011 passed in Cri. Appeal No.06/2011 filed under Section 374 of the Cr.P.C. against the judgment dated 28.3.2011 passed by Nyayadhikari-Gram Nyayalay Alirajpur, in criminal case no.743/2006.

Briefly stating the fact of the case are that an accident occurred wherein, the injured has succumbed to the injuries. The incident occurred because of involvement of motorcycle which on investigation was found to have been driven by the petitioner. On the basis of evidence in particular the statement of PW-1 Ravi and PW-4 Arif, the Trial Court convicted the petitioner for offences under Section 279,337 and 304-A IPC and sentenced the accused /petitioner with a fine of Rs. 1,000/- for the offence punishable under Section 279 and with RI of

472

six months and a fine of Rs. 1,000/- under Section 304-A IPC. In default of payment of fine he was directed to suffer one months RI on each account. No separate sentence was awarded under Section 337 IPC.

The 1^stAppellate Court has not accepted the case of the petitioner that he was not involved in the matter. The 1^stAppellate Court has analysed the evidence which came on record and has discussed the statement of Ravi and Arif who have categorically stated that the petitioner was the person who was driving the vehicle and has been identified at the time of incident. Some relevant discussion regarding the submissions made by the petitioner before the 1^stAppellate Court and which has been taken note of by the 1^stAppellate Court are reproduced hereinabove:-

10. "The learned counsel for the appellant has contended that both above witnesses have deposed that appellant Lala was driving the motor cycle. In the FIR the name of accused is shown to be Lala only. These two witnesses have not deposed that the another name of appellant is Irfan. Thus he contended that identity of appellant is not established by these two injured witnesses, who only have supported prosecution's case against the appellant, because other injured persons Mehtab (PW-2) and Rakesh (PW-3) have deposed that in the same

473

incident they were also injured by a motor cycle, but due to darkness, they have not identified the driver of the motor cycle and the appellant is unknown to them.

11. The brother of reporter Ravi i.e. Aakash (PW-12) have deposed that he is not a eye witness of the incident, but he has deposed in his examination- in-chief that his brother's companion Mehtab (PW-2) disclosed to him that the motor cycle was being driven by the present accused Lala, but Mehtab has deposed that the did not know the accused.

16. Ravi (PW-1) has not deposed about the accident of Arif (PW-4) and Nanu, so it is clear that Ravi, Mehtab and Rakesh were not with Arif and Nanu. Arif (PW-4) has not deposed anything about the accident of Ravi, Rakesh and Mehtab. SO it is clear that all the five injured persons were not in a group. The evidence about the identity of the driver of Ravi (PW-1)is supported by the evidence of Arif (PW-4). Thus the evidence of Ravi (PW-1) and Arif (PW-4) about the cause of accident and the identity of the appellant is believable, despite reluctance of other injured persons and so called eye witnesses, about the identity of the appellant, or about the incident. Injured persons Rakesh (PW-3) and Mehtab

474

(PW-2) both have deposed that with Ravi (PW-1), both of them were injured by a speedy motor cycle, The name of the appellant and the number of the motor cycle is also described in the prompt roznamcha report (Ex.P/5) lodged and signed by Ravi (PW-1) and this report (P-5) is a part of FIR (P-9), which has been proved by its scriber P.S. Solanki (PW-10). Thus the evidence of Ravi (PW-1) and Arif (PW-4) about the appellant, appears to be trustworthy.

17. From the evidence of Dr. P. Dhoke (PW-11) and his injury report about Nanu i.e. Ex.P/15 and post-mortem report (Ex.P/20), it is clear that Nanu was having head injury after the accident and in the post-mortem, he found fractures in skull bones and damage to the brain of Nanu and in his opinion the death of Nanu was accidental and due to anti-mortem external and internal injuries to Nanu's head.

19. The fact of accident of five persons in between some distance, by a motor cycle, is in itself indicative of the rashness and negligence of the driver of the motor cycle, which is proved to be the appellant, in this case. Pramod (PW-5) had taken the interim custody of the motor cycle after its seizure by police. The circumstantial evidence of damage to the motor

475

cycle, after its seizure is also proved by prosecution witnesses P.S. Solanki (PW-10) and Ratan Singh (PW-8) through Ex.P/11 and Ex.P/4 respectively. Thus the evidence also proves the involvement of the questioned motor cycle in the accident. Thus the prosecution evidence available on record, proves all the three above questions, beyond any reasonable doubt. Thus all the three offences were proved by the prosecution evidence against the appellant. Thus the finding of conviction of the appellant by the trial court for all the three offences is proper and legally justified. "

On that basis, the 1^stAppellate Court found that there was no error in the Trial Court judgment and as far as the sentence is concerned, it was held that it was not harsh and, therefore, no interference was called in so far as the sentence awarded to the petitioner is concerned and the appeal was dismissed.

Before this Court it has been argued on behalf of the petitioner that there was no evidence which can establish that the petitioner was a driver of the vehicle. However, having gone through the cross-examination of the witnesses particularly PW-1 and PW-4 copies whereof have been filed by the petitioner it is apparent, that no suggestion has been given

476

by the petitioner to these two witnesses that the vehicle was not driven by the petitioner or that he was not responsible for the accident.

Learned Counsel submits that there is no evidence on record to show that the incident occurred with the motorcycle in question and that the petitioner being aged about 23 years should be released who has already undergone sentence. As far as the first submission made by the learned Counsel for the petitioner, there is nothing on record to show that any suggestion has been given by the petitioner that the motorcycle in question was not involved in the accident or that the petitioner was not driving the vehicle.

As far as the second argument is concerned, it is an accident case and the punishment provided for such accidents which are caused because of the negligence of the driver has been provided for only two years. It is not a case equivalent to a case under Section 302 or 304 IPC. In any case, the sentence of six months RI which has been awarded by the Trial Court and confirmed by the 1^stAppellate Court has been awarded after taking into consideration all the facts and circumstances of the case and including the age of the petitioner and it does not call for any interference by this Court. Dismissed.

477

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.877/2011

12.07.2011.

Shri S.K.Chourasia, learned Counsel for the petitioners. Shri Sanjay Sharma, learned Counsel for the respondents.

The only grievance made by the petitioner in this case is that they were allowed to act as intervenor in the proceedings which were initiated by the Ivth respondent against respondents 1 to 3 against that application a revision petition was filed by respondents 1 to 3 before the Sessions Court which was disposed of by the Court of Additional Sessions Judge Indore, vide order dated 4.10.10 in Criminal Revision No.747/10.

The only grievance of the petitioner is that while passing the impugned order whereby some observations have been made with regard to taking certain documents which were to be filed by the intervener in view of the order of the learned

478

Magistrate, the Court has passed the following order:-

"Para 10.

As for the taking of documents on record filed by intervenor is concerned I am of the view, that learned Magistrate order is not justified as intervenor have been ordered only to appear in the case. They have not been permitted to prosecute the case through counsel. Thus, they have no right to file documents which have not been filed by complainant. Section 302 of the Cr.P.C. makes it clear that case will be conducted by any person other than a police officer but no person other than Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission. As intervenor who are alleged to be victims have been allowed only to appear through the counsel in the case cannot be allowed to file the documents according to list of documents which have not been filed by the complainant organization. If such documents are necessary for the right and just decision of the case same should have been filed though the complainant Santosh Sharma or the organization on whose behalf complaint has been filed."

However, the aforesaid observations are without taking note of the fact that the petitioner was not made a party to the revision petition. As such, the order passed by the Revisional

479

Court is without giving any hearing to the affected party such order cannot be sustained.

Nobody appears for respondent 1 to 3. The fourth respondent has no objection if the matter is remanded back to the Revisional Court to pass fresh orders for hearing the petition. Accordingly, the order dated 4.12.10 passed by the Court of Additional Sessions Judge Indore, is set-aside and direction is given to the said Court to pass fresh orders after hearing the petitioner also by impleading them as respondent in the present proceedings.

The needful shall be done by the Revisional Court within three months from the receipt of the copy of the order. A copy of the order be sent to the Revisional Court for information and compliance.

Parties to appear before the Revisional Court on

1.8.2011.

A copy of this order be retained in the other connected petitions.

(M.C.GARG,J)

M.Jilla.

480

M.Cr.C.No.57/2008

12.07.2011.

None for the petitioner. This petition filed under Section 482 Cr.P.C. arises out of the order dated 9.10.2007 passed by the Xvth Additional Sessions Judge Indore, in Criminal Revision No. 648/07 whereby, the Revisional Court confirmed the order passed by the JMFC Sanver, dated 23.4.07 in MJC No. 4/06. The order dated 23.4.07 was passed by the JMFC Sanver in a petition filed by the petitioner wife against the respondent (non-applicant husband) under Section 125 Cr.P.C. Considering the evidence which came on record showing that the petitioner was an earning hand, the JMFC Sanver, dismissed the application under Section 125 Cr.P.C. Against the said order, the revision was filed under Section 397 Cr.P.C.

Vide order dated 9.10.2007 which is the subject matter of the present petition, the Sessions Court has taken note of the evidence which came on record as also the conduct of the petitioner who admitted, that she herself was not willing to go with the husband and has not been able to place on record any evidence to show that her husband was having means to

481

maintain her and was not maintaining her knowingly or willingly. The Sessions Court has also taken note of the fact that the petitioner was willingly living away from the respondent at her parents house and was looking after herself by doing labour work.

In these circumstances, the Revisional Court found that firstly the petitioner herself had separated from the respondent, she failed to place on record any evidence which may go to show that what was the income of her husband and has also not stated that the husband was not willingly maintaining her and thirdly she was capable of looking after herself. As such, the Court found no infirmity in the order of the JMFC Sanver. There is nothing on record which requires any interference by this Court under Section 482.

Moreover, nobody has come forward to support the petition.

Dismissed.

(M.C.GARG,J)

M.Jilla.

482

M.Cr.C.No.7188/2010

12.07.2011.

None for the petitioner. Shri Sameer Ahmed, learned Counsel for the respondents.

This petition under Section 482 Cr.P.C. arises out of the order passed in revision petition No.171/10 passed by the Additional Sessions Judge Ujjain, having dismissed the revision petition filed by the petitioner vide impugned order dated 14.9.2010 whereby, the Additional Sessions Judge upheld the order of maintenance granted in favour of the respondent @ Rs. 5,000/- per month on an application filed by the respondent under Section 125 Cr.P.C.

This order of Rs. 5,000/- was passed in favour of the first respondent for herself as also for the minor daughter Gorangi. It has been observed by the Revisional Court that as per the allegation made by the respondent, the petitioner was engaged in the business of manufacturing of furniture and share marketing and his income was around Rs. 2 lacs per month.

In the absence of anybody come forward for the petitioner and the petitioner has not complied with the

483

directions of this Court as contained in the order dated 19.1.2011 except Rs. 10,000/- even though arrears of more than Rs. 1 lac are due, I find no reason to entertain the petition which even otherwise does not reflect any infirmity in the order of the Lower Court.

Dismissed.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.707/2011

11.07.2011.

Shri M.I.Ansari, learned Counsel for the petitioners. Shri Anil Oza, learned Counsel for the respondent/State.

Petitioner submits that it was a family dispute and the petitioners have been sentenced to undergo RI for one year and to pay fine of Rs.500/-.

484

One of the petitioner is a lady, there is nobody else in the family to look after minor child. Learned Counsel for the petitioner also submits that it was a fit case for grant of probation.

In the meanwhile, the respondent to call a report about the antecedents of the petitioners. In the meanwhile, the petitioner No.2 Smt. Parwatibai shall be released on bail on her furnishing bail bond in the sum of Rs. 10,000/- (Rs. Ten Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for her appearance before this Court/Registry on 5.9.2011 and on subsequent dates as may be fixed by the Registry in this behalf.

List the matter on 5.9.2011.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.721/2011

485

11.07.2011.

Shri J.N.Tiwari, learned Counsel for the petitioners. Shri Anil Oza, learned Counsel for the respondent/State. According to the petitioner instead of awarding RI for six months and fine of Rs. 2,000/- at the most the Trial Court ought to have released the petitioner on probation.

It is further submitted that one of the petitioner is aged about 62 years. Matter requires consideration.

Let the respondents call for the record about the antecedents of the petitioners.

In the meanwhile, the petitioners shall be released on bail on their furnishing bail bonds in the sum of Rs. 10,000/- (Rs. Ten Thousand only) each with one surety in the like amount to the satisfaction of the Trial Court for their appearance before this Court/ Registry on 11.8.2011 and on subsequent dates as may be fixed by the Registry in this behalf.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

486

Cr.R.No.744/2011

11.07.2011.

Shri Jaisingh, learned Senior Counsel with Shri Vikas Rathi, learned Counsel for the petitioners. In view of the judgment of the Supreme Court in the case of P.Sundarrajan and others vs. R.Vidhya Sekar

reported in (2004) 13 Supreme Court Cases 472,the contention of the learned Senior Counsel for the petitioners that without issuing a notice to the petitioner in the revision petition, no adverse order could have been passed by the Revisional Court which requires consideration. Issue notice to the complainant respondent No.1 to pay the PF and RC.

Shri Oza, accepts notice for respondent No.2 and 3. In the meanwhile, the proceedings before the Revisional Court shall remain stayed till further orders. Record be also summoned.

List on 12.8.2011.

C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.672/2011

11.07.2011.

Shri Gaurav Verma, learned Counsel for the petitioners.

487

Shri G.S. Chauhan, learned Counsel for the respondent/ State.

Considering the age of the petitioner and likelihood of his acquittal after he completes 18 years of age and the nature of evidence which has led to his arrest that is confession statement of a co-accused it would not be appropriate to keep him in juvenile home.

Subject to furnishing bail bonds in a sum of Rs. 50,000/- (Rs. Fifty Thousand only) each with two sureties in the like amount, the petitioners be released on bail. An undertaking shall also be filed by the father of the petitioner that he shall not be allowed to come in the contact of persons of doubtful integrity or accused or persons who are involved in criminal activities so as to expose him to moral, physical or psychological danger.

The bail bond to be furnished before the Juvenile Court. C.C. as per rules.

(M.C.GARG,J)

M.Jilla.

Cr.R.No.678/2011

488

11.07.2011.

Shri Gaurav Verma, learned Counsel for the petitioner. Shri G.S. Chauhan, learned Counsel for the respondent/ State.

This is a revision petition filed by the petitioner aggrieved by the order passed by the 1^stAdditional Sessions Judge Mandsaur, in S.T. No. 228/2009 whereby, the 1^stASJ has allowed the application filed by the respondent under Section 311 Cr.P.C. for re-summoning the doctor at the stage of final hearing.

Considering the nature of offence, I find, that the discretion exercised by the Trial Court in permitting application under Section 311 of the Cr.P.C. for the reasons stated in the impugned order cannot be faulted. Accordingly, the revision petition is dismissed.

(M.C.GARG,J)

M.Jilla.

489

Cr.R.No.687/2011

11.07.2011.

Shri Ajay Jain, learned Counsel for the petitioner. Shri G.S.Chauhan, learned Counsel for the respondent/State.

This is a revision petition filed by the petitioner against the conviction of the petitioner under Section 304- A read with Section 338 of the IPC in a case where one person has succumbed to the injuries sustained. The trial Court as well as the 1^stAppellate Court has found that there is ample evidence on record which establishes that the petitioner was driving the vehicle in question which has resulted in the accident leading to the death of the deceased.

While the Trial Court granted punishment of one year to the petitioner for the offence under Section 304-A IPC along with the fine of Rs. 1,000/-, and the 1^st Appellate Court has reduced the sentence for a period of six months in place of one year while maintaining the fine. In addition to the death of Rajendra there is also evidence on record that Neha got a fracture in this accident.

490

It is apparent, that the accident has occurred because of the negligence of the driver. The submission made on behalf of the learned Counsel for the petitioner that the petitioner is entitled to be released on probation needs no consideration because accident are on increase and there is a need to tell people who come on the street while driving vehicles and in particular driving a bus which endangers the life of the public at large if the bus is driven negligently, probation cannot be granted. In these circumstances, I find no reason to interfere with the order passed by the 1^stAppellate Court. Dismissed.

(M.C.GARG,J)

M.Jilla.

M.Cr.C.No.3464/2011

09.07.2011.

Ms. Mamta Shandilya, learned Counsel for the

491

applicant/State. This order shall dispose of the application filed by the State of M.P. seeking leave to file an appeal under Section 378 (3) of the Cr.P.C. against the judgment passed by Additional Sessions Judge Kasrawad District Khargone, (Shri S.S. Thakur) who has been pleased to acquit the respondents by holding that the nature of injuries which has been found on the person were not caused by Sword which is the case of the prosecution and on that basis has acquitted all the accused persons.

According to the learned Counsel for the applicant, in view of paragraph 6 of the judgment, there is mention of certain injuries which were found on the body of Mahadev S/o Sakharam as noticed by Dr. K.S.Jadhav PW-11, therefore, the applicant submits that on that basis atleast offence under Section 148, 294, 323,325 IPC is still made out and, therefore, the Court was not right in acquitting the respondents of all the charges.

The learned Counsel for the applicant however, agrees that in terms of the statement of the eye-witness Mahadev allegations were made that the accused persons were having a Sword and one Gun. None of the injuries have been mentioned by Dr. Jadhav could have been inflicted by Gun or by Sword.

In these circumstances, there is no reason to interfere with the judgment passed by the Additional Sessions Judge. In any case, the appeal is also belated having been filed after 101 days.

492

Consequently, the application for condonation of delay as well as leave to file appeal, both are dismissed.

(MOOL CHAND GARG)

JUDGE

M.Jilla. M.Cr.C.No.3500/2011

09.07.2011.

Ms. Mamta Shandilya, learned Counsel for the applicant/State.

This order shall dispose of the application for seeking leave to file appeal against the judgment delivered by Special Judge

493

Narcotic Drugs and Psychotropic Substances Act, 1985 dated 13.1.2011 in Special Case No. 16/2008 whereby the learned Special Judge has acquitted both the accused persons who were arrested by the prosecution on the allegations, that Dodachura around 2 quintal and 15 kg was seized from them.

As per the story of the prosecution, the secret information was received by them at about 6.30 am however, the actual raid has taken place at about 3.30 pm despite such period being available, the necessary documents which could have been prepared were not prepared by the prosecution.

The Court also found that there were contradictions even in the name of the accused persons inasmuch as, one of the person who has been arrested has been named as Ramesh whereas he was Rameshwarlal which fact is borne out from the driving license Ex.P/

32. Similarly, sufficient justification was given by the other accused regarding going to Bhadwamata for which he also produced documents Ex.D/1 and affidavit Ex.D/3. These documents were very much available with the police as they were produced from the police diary Ex.D/4. In view of that, considering the felicity in the case of the prosecution, the respondents were acquitted giving them benefit of doubt.

In such circumstances, when two views are possible and one goes in favour of the accused person, the benefit of doubt cannot be given to the prosecution.

Accordingly, the application for leave to defend is

494

dismissed.

(MOOL CHAND GARG)

JUDGE

M.Jilla. M.Cr.C.No.3571/2011

09.07.2011.

Ms. Mamta Shandilya, learned Counsel for the applicant/State.

This is an application seeking leave to file an appeal against the order passed by Special Judge Narcotic Drugs and Psychotropic Substances Act, 1985 in Special Case No.114/2002 whereby the Special Judge has been pleased to acquit respondent Akram on two grounds one is that as far as the recovery from his house is concerned, as per the evidence of the prosecution, the house from where the recovery has been affected does not belong to the applicant and belongs to one Rais who is living on the first floor from where the recovery was effected.

495

Moreover, the allegation of the prosecution is that on the spot brother of Akram and his father were also found to be incorrect inasmuch as, father of Akram had expired in 1988 that is much before the date of the incident. As far as the allegation that the accused had thrown one bag which on investigation found containing one bag of blue colour in which white colour plastic was also found could not be believed because the respondent was a person suffering from Asthema problem for which he has also produced the evidence of Dr. Deepak Kumar Bhatnagar and as such that person was unable to run because if he would run, then will not be able to breath and as such the case of the prosecution that the respondent was seen at the place of the incident running was held to be not reliable.

The findings written by the Special Judge based upon the analysis of the evidence which came on record does not call for any interference by this Court for the reason that the argument which has been made on behalf of the learned Counsel for the applicant that once the recovery was affected from his house after the incident, there is no reason to disbelieve that recovery is of no consequence for the reason, that the person who was residing at the first floor was not Akram but his brother Rais. In view of that, the application for leave to defend is dismissed.

496

(MOOL CHAND GARG)

JUDGE

M.Jilla. M.C.C.No.113/2009

04.07.2011.

Shri D.S.Kale, learned Counsel for the applicants. Shri D.C.Patel, learned Counsel for the respondents No. 5 and 6.

Being aggrieved by judgment dated 17.12.2008 passed by Vith ADJ Ujjain, in Civil Suit No.5-A/2007 whereby the suit filed by the applicants was dismissed, present appeal has been filed. Learned Counsel submits that before the learned Trial Court initially the court fee was payable Rs. 560/- which was paid by the petitioners but lateron the suit was amended and the court fee of Rs. 8,400/- was payable. Since the petitioners were indigent, therefore, petitioners moved an application before the Court below to prosecute the suit as indigent. After enquiry, petitioners were permitted to prosecute the suit as indigent.

Learned Counsel for the petitioners further submits that petitioner No.1 has submitted an affidavit wherein it is stated that there is no change in financial status of petitioner No.1 and

497

petitioners have not acquired any property after declaration as an indigent in the enquiry held by the learned Trial Court. It is submitted that looking to the facts and circumstances of the case, petitioners be permitted to prosecute the appeal as an indigent person.

Learned Counsel for respondent No.5 and 6 submits that no case is made out for permitting the petitioners to prosecute the appeal as an indigent person. It is submitted that the application be dismissed.

After hearing the arguments, this Court is of the view that sufficient ground is made out by the petitioners to prosecute the appeal as an indigent person. The application is allowed and the petitioners are permitted to prosecute the appeal as an indigent person.

The MCC stands disposed of with a direction to register the case as regular appeal.

(N.K.MODY)

JUDGE

M.Jilla.

498

M.Cr.C.No.4143/2011

20.05.2011.

Shri Vikas Yadav, learned Counsel for the applicant. Shri S. Vyas, learned Counsel for the respondent/State. This is second bail application filed under Section 307/34 of IPC & 25/27 of Arms Act. The first bail application was dismissed on 26.4.2011.

Learned Counsel for the applicant submits that the injured is Rafiq. There are three accused persons. The allegation against the applicant was that the applicant was also on the spot at the time of incident. It is submitted that the injured Rafiq is a history sheeter as 12 criminal cases were pending against him. It is submitted that Rafiq injured has already been examined before the learned Court below and has not supported the case of the prosecution and has been declared hostile.

Considering the nature of the allegation and the evidence collected the application filed by the applicant is allowed. The applicant is directed to be released on bail upon his furnishing personal bond in the sum of Rs. 25,000/- (Rs. Twenty five thousand only) with one surety in the like amount to the satisfaction of the learned Court below for his further

499

appearance on the dates as may be directed. C.C. as per rules.

(N.K.MODY)

JUDGE

M.Jilla. Con.C.No.449/2011

19.05.2011.

Shri Subhash Upadhyaya, learned Counsel for the petitioner. This order shall also govern the disposal of Con.C.No.448/2011, Con.C.No.533/2011 and Con.C.532/2011. The grievance of the petitioner is that the petition filed by the petitioner was disposed of with a short direction that the respondents shall consider the claim of the petitioner by passing a reasoned and cogent order and if petitioner is found entitled for the benefit, the same shall be extended to the petitioner as has been extended in other identical matters. The exercise shall be completed within a period of 4 months.

In the facts and circumstances of the case, the petition filed by the petitioner is disposed of with a short direction that the petitioner shall file fresh representation in which the petitioner shall mention the name of the persons to whom the similar type of benefit has been given and how the petitioner is identical along with the

500

copy of the order passed in WP and order passed today. If such a representation is submitted before respondent No.2 under an acknowledgment then it will be the duty of the respondent No.2 to pass a reasoned order as directed by this court in the writ petition within a period of two months positively under intimation to the Registry of this Court. After passing of the order by the respondent No.2, the respondent No.4 shall comply with the order so that the monetary benefit reaches to the petitioner within another period of two months under intimation to the Registry of this Court. In case any of the respondents fails in complying with the order and if the petitioner is compelled to approach this court again for the same relief, respondent No.2 and 4 shall personally be liable to pay the litigation cost which is quantified as Rs. 5,000/- With the aforesaid, petition stands disposed of. Copy of this order be placed in all the connected cases.

C.C. as per rules.

(N.K.MODY)

JUDGE

M.Jilla. Con.C.No.529/2011

501

19.05.2011.

Shri A.K.Sethi, learned Senior Counsel with Shri Rahul Sethi, learned Counsel for the petitioner. Shri Vivek Phadke, learned Counsel on advance notice. The grievance of the petitioner is that the order passed by this Court on 9.9.2010 passed in W.P. No.3415/2010 whereby it was directed that the petitioner as well as IDA shall appear before the Principal Secretary Housing and Environment Department on 20.9.2010 and shall submit necessary documents. It was further directed that Principal Secretary after granting opportunity of hearing to the petitioner as well as IDA shall pass a detailed and reasoned order without being influenced by the order dated 28.10.2010 within a period of 30 days.

Learned Counsel submits that in compliance the petitioner appeared before the Principal Secretary on the fixed date and submitted the documents. Similarly, IDA also made appearance but inspite of lapse of considerable time, no order has been passed by the respondents.

From perusal of the record, it appears that while deciding the petition this Court has observed as under:-

16.The aforesaid order reveals that the State

Government has rejected the representation of the petitioner on the ground that the matter has already been examined by State Government and the State Government has earlier passed an order dated

18.4.2000 has been upheld by the State Government. This Court has carefully considered the impugned

502

order passed by the State Government and the question of reviving of an order which has been quashed by this Court does not arise. It appears that the respondent/State has passed the impugned order in a most mechanical and casual manner. There is total non-application of mind on the part of the respondent/State. An order which is not in existence could not have been revived as has been done in the peculiar facts and circumstances of the case.

17. Resultantly, this Court is left with no other choice except to quash order dated 12.3.2010 and remand the matter back to the State Government to pass a fresh order as directed by this Court in W.P. No.1961 of 2000. It is needless to mention that respondent/State while passing a fresh order shall consider the earlier order passed by this Court and shall pass appropriate order in accordance with law."

In the facts and circumstances of the case, the petition is disposed of with a short direction that upon production of the copy of the order along with the request to comply the order dated 9.9.2010 passed in WP 3415/2010 under an acknowledgment the respondents shall do the needful under intimation to the Registry of this Court within a period of six weeks. It is made clear that if the petitioner is compelled again for the same relief then the matter shall be dealt seriously and each of the respondents shall personally be liable for the litigation expenses which is quantified as Rs. 10,000/- each. It will be the duty of the Counsel appearing on behalf of the State to intimate the order to the respondents.

503

With the aforesaid observation, petition stands disposed of.

(N.K.MODY)

JUDGE

M.Jilla. Con.C.No.352/2011

19.05.2011.

Shri M.I.Khan, learned Counsel for the petitioner. Being aggrieved by the order dated 19.1.2009 passed in W.P.No.4444/2008(s) whereby the petition filed by the petitioner was disposed of by quashing the order dated 15.4.2008 and liberty was granted to the competent authority to initiate fresh proceedings for fixation of pay of the petitioner in accordance with law by issuing a show-cause notice upon the petitioner.

504

Learned Counsel submits that in compliance a show- cause notice was issued to the petitioner which was replied by the petitioner but inspite of considerable time, no order has been passed.

In view of this, the petition filed by the petitioner is disposed of with a short direction that the petitioner shall submit fresh representation along with the copy of the order passed earlier and also copy of the order passed today before the respondent No.3 under an acknowledgment with a request to pass the appropriate order. If such representation is submitted then same shall be decided by the respondent No.3 by passing a reasonable order within a period of two months under intimation to the Registry of this Court positively. With the aforesaid, the petition stands disposed of.

(N.K.MODY)

JUDGE

M.Jilla.

505

Con.C.No.453/2011

19.05.2011.

Shri Rahul Sethi, learned Counsel for the petitioner. The grievance of the petitioner is that the order dated 19.9.2008 passed by this Court in W.P. No.3271/2007(s) whereby the petition filed by the petitioner was disposed of with a direction to the respondents to pay the petitioner actual monetary benefits along with the arrears from the date the petitioner was granted promotion on the promoted post. It was also directed that arrears shall be paid within a period of 4 months from the date petitioner furnishes the certified copy of the order.

Learned Counsel submits that the order passed by this Court was not complied with on the contrary, Writ Appeal was filed which was numbered as 141/2009 and was dismissed as withdrawn vide order dated 7.4.2010 but inspite of that the respondents have not complied with the order. In the facts and circumstances of the case, the petition filed by the petitioner is disposed of with a short direction that the petitioner shall submit a representation along with a copy of the order dated 19.9.2008 and also copy of the order passed in writ appeal and also copy of the order passed today before

506

respondent No.3 under an acknowledgment. It will be the duty of respondent No.3 to pass appropriate orders for complying the order passed by this Court within a period of two months under intimation to the Registry of this Court failing which, if the petitioner approaches this Court for the same relief, the respondent No.3 shall be liable for payment of cost of litigation which is quantified as Rs. 5,000/- personally for which the Court shall not be responsible.

With the aforesaid, the petition stands disposed of.

(N.K.MODY)

JUDGE

M.Jilla. M.Cr.C.No.3804/2011

19.05.2011.

Shri Sanjay Sharma, learned Counsel for the applicant. Shri Devendra Singh, learned Counsel for the respondent/State.

Second bail application filed under Section 439 of the

507

Cr.P.C. in Crime No. 103/2011 registered under Section 239,420/34 of the IPC.

Learned Counsel for the applicant submits that applicant is in custody w.e.f. 17.3.2011.

Earlier application was dismissed by order dated 21.4.2011 in M.Cr.C. No. 2614/2011. It is submitted that the coin and the forged dollar has been recovered by the co- accused and nothing has been recovered from the applicant. Learned Counsel for the State submits that no sufficient ground is made out for releasing the applicant on bail, hence, the application filed by the applicant be dismissed. Considering the nature of the allegation and the evidence collected the application filed by the applicant is allowed. The applicant is directed to be released on bail upon his furnishing personal bond in the sum of Rs. 20,000/- (Rs. Twenty thousand only) with one surety in the like amount to the satisfaction of the learned Court below for his further appearance on the dates as may be directed. C.C. as per rules.

(N.K.MODY)

JUDGE

M.Jilla.

508

S.A.No.306/2011

19.05.2011.

Shri A.S.Kutumbale, learned Senior Counsel with Shri B.S.Gandhi, learned Counsel for the appellant. Ms. Swati Mehta, learned Counsel for the respondent.

Heard and admission and also on IA.

Let copy of appeal be supplied to the counsel for the respondent who shall file the power.

Record be called.

Let the case be listed after Vacation. In the meantime, the operation of judgment and decree passed by the learned Courts below shall remain stayed subject to compliance of money part of the decree. C.C. as per rules.

(N.K.MODY)

JUDGE

M.Jilla.

509

Cr.A.No.474/2000

05.05.2011.

Shri Ashish Gupta, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 10.4.2000 passed by learned Second Additional Sessions Judge Khargone, in S.T. No.229/1999, whereby the appellant was convicted for offence punishable under Section 324, 325/34,325, 324/34 of the IPC for 2 years RI with fine of Rs.250/-each in default of payment of fine i.e. Rs.500/- each to suffer further two months RI, the present appeal has been filed. Brief facts of the prosecution case are that on 10.6.1999 at 5.30 pm in evening while the complainant Mishrilal Rathod along with Raju @ Rajaram Rajput went to the field, his neighbour accused came in the field Girdhari had axe and Chotu had iron rod and upon quarrel accused started hurling abuses to the complainant. Accused No.1 caused axe blow and accused No.2 caused injury by iron rod on both the legs. After assault, the complainant fell in the field. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not

510

require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced to Rs.3,000/- each and an amount of Rs.5,000/- to be given to the injured complainant Mishrilal Rathod as compensation under Section 357 of the Cr.P.C. to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE M.Jilla.

511

Cr.A.No.479/2001

05.05.2011

Shri B.L.Yadav, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 17.4.2001 passed by learned Additional Sessions Judge Rajgarh (Biaora), in S.T. No.169/1998, whereby the appellants were convicted for offence punishable under Section 307/34, 325/34, 325,324/34 and 324 of the IPC for 3 years RI with fine of Rs.2000/-each in default of payment of fine to suffer further 6-6 months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 15.10.1998 at 3 pm while the complainant Bhanwerlal S/o Dayaram had gone to his field for agriculture

512

work along with his family members Dayaram, Kishanbai and Gordhan at that time accused Bhanwerlal, Radhia, Bapu and Mangilal came with lathi and farsi and started beating Dayaram. As stated by the learned Counsel for the appellant the injuries were simple in nature.Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained.

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced to Rs.3,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said amount Rs.10,000/-be paid to the injured Dayaram as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated.

513

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.544/1997

05.05.2011.

Shri Amitabh Upadhyaya, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 20.5.1997 passed by learned 1^st Additional Sessions Judge Dewas, in S.T. No.172/1990, whereby the appellant was convicted for offence punishable under Section 363 and 366-A of the IPC for 2 years RI with fine of Rs.200/- in default of payment of fine to suffer further 2 months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 28.8.1989 at 5.30 pm while the prosecutrix Ladkibai along with her brother Pappu was passing through the jungle and between Paras and Chandupura the appellant and the absconding accused Gulab met them and both of them kidnapped Ladkibai in order to get her married against her wish with accused Gulab. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

514

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses and the age of the prosecutrix has not bneen properly fixed. She was found to be 21 years of age which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges however the fine amount is enhanced from Rs.200/- to Rs.2,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

515

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.1162/2010

16.05.2011.

Shri Manish Joshi, learned Counsel for the petitioners. Ms. Rekha Shrivastava, learned Counsel for the respondent.

\ On consent the matter is taken up for hearing. Briefly stated the case arise out of matrimonial dispute and nonpayment of maintenance amount to the petitioner wife. The petitioner alleged that she was treated cruelly by her husband respondent Neeraj Mahajan and deserted on 14.12.05 and since she had no source of income had prayed for Rs.15,000/- per month by filing application under Section 125 of Cr.P.C. before the trial Court. The JMFC, Nagda fixed Rs.2,000/- for the wife Smt. Vinita Mahajan and Rs.1500/- for son vide order dated 24.7.09. The revisional Court by an ex- parte order reduced the amount from Rs.3,500/- to Rs.1500/- without granting of opportunity to the petitioner and hence the present petition.

I find that the matter can be resulted by the trial Court only since all the evidence and facts are before it.

516

Counsel for the respondent has raised objection that the amount was refused by the revisional Court since the respondent husband had produced a pay-slip to indicate that his total earning is Rs.3,500/- per month and was fully supported the order. On considering the submissions of both the parties the following consent order is passed.

Ms. Shrivastava, states that the non-applicant -respondent is willing to deposit three installments of Rs.11,000/- every month from today as outstanding of the arrears of maintenance to be paid to the wife within a period of three months from today. Subject to which, the petition is partly allowed to the extent that although no interference is called for in the impugned order, since only interim maintenance has been awarded by the Trial Court the question is left open for the Trial Court to decide the issue on merits at the final stage.

The Revisional Court had modified the order passed by the Trial Court and reduced the amount of interim maintenance from Rs. 3,500/- to Rs. 1,500/-. The non-applicant respondent shall continue paying the interim maintenance during the pendency of the trial. The liberty is also granted to the respondent to move another application under Section 127 of the Cr.P.C. for modification of the interim maintenance as

517

awarded by the Revisional Court. It goes without saying that this order shall not affect the merits of the case.

With the aforesaid directions the petition is partly allowed to the extent hereinabove indicated. CC as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

518

Cr.R.No.264/2011

16.05.2011.

Shri Tousif Warsi, learned Counsel for the petitioner. Shri Anil Ozha, learned Counsel for the respondent/State.

Heard on IA No. 2222/2011 which is an application for condonation of delay.

Four days delay has occasioned in filing this revision. For reasons mentioned in the application, the application is allowed. The delay is condoned.

The revision is admitted for final hearing. Counsel for the respondent/State is again praying for time to produce the case-diary.

At this juncture, Counsel prays for grant of stay of the proceedings pending before the JMFC Class-I Indore in Criminal Case No. 34975/2010. The prayer being reasonable is allowed.

The proceedings in the Court below are, hereby, stayed till the next date of hearing.

In the meanwhile, Counsel for the respondent/State is directed to produce the case-diary on the next occasion. Counsel for the petitioner is also directed to make the

519

complainant a party. He prays for time to move appropriate application.

Subject to moving the application during the course of the day, subject to moving the application, it is directed that the Counsel be allowed to amend the cause-title by impleading the complainant as petitioner No.2 in the petition. Thereafter Counsel is directed to pay process regarding petitioner No.2 by registered as well as ordinary mode within a week. Notices be made returnable within two weeks.

List on 20.5.2011.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1454/2008

16.05.2011.

520

Shri V.K.Gangwal, learned Counsel for the appellant. Shri Anil Ozha, learned Counsel for the respondent/State.

Heard on IA No. 2217/2011.

Counsel states that the earlier suspension was granted by this Court and the appellant has not misused the liberty granted to him. He could not appear on the date set by the Registry, because he was in Jail for another offence and prays that the absence be condoned and suspension be granted to the appellant.

In view of the above, the application is allowed. The sentence shall remain suspended during the pendency of this appeal.

It is directed that the accused/appellant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 24.6.2011 and on all subsequent dates as may be fixed by the Registry in this behalf.

In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. Registry is directed to send a reminder for the record.

521

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.905/1999

05.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 28.6.1999 passed by 1^st Additional Sessions Judge, Dewas, in S.T No.70/1984, whereby the appellants were convicted for offence punishable under Section 148,324,324/149 IPC by sentencing them to undergo 3 years RI with fine of Rs.1000/-each and in default of payment of fine to suffer further three months RI, on each count, the present appeal has been filed. Brief facts of the prosecution case are that on 12.8.1982 at about

12.00 pm Afzal had come to Jhamirs house and Asgar was assaulted by Nawab and Munshikhan by sword and Asgar caught hold of the sword and he sustained injury on both his hands and started bleeding. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the

522

principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges the fine amount is enhanced from Rs.1000/-each to Rs.3,000/- on each count to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

523

Cr.A.No.1278/2000

05.05.2011.

Shri Anil Ozha, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 8.1.2000 passed by learned Sessions Judge, Ratlam, in S.T No.188/1999, whereby the appellant was convicted for offence punishable under Section 436 IPC by sentencing him to undergo 3 years RI with fine of Rs.100/- and in default of payment of fine to suffer further one months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 31.5.1998 at about

8.00 pm complainant Nandu lodged the report that between him and accused Geetabai and her family there is a quarrel from last one year on the basis of doubt that her husband has been murdered by him. She set fire to the dried cotton plants and the hay caught ire and thereafter his house and everything was damaged. According to the learned Counsel, there was previous enmity. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court moreover, the mental condition of the accused Geetabai was not good and she may not have understood the consequence of her actions

524

and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.100/- to Rs.1,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

525

Cr.A.No.689/2003

05.05.2011.

None for the appellant. Shri Bharat Malviya, learned Counsel for the appellant is appointed on behalf of the Legal Services Authority. His fees shall be regulated as per provisions of Rule.

Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 21.7.2003 passed by Xth Additional Sessions Judge, Khachrod District Ujjain, in S.T No.183/2000, whereby the appellant was convicted for offence punishable under Section 324 IPC by sentencing him to undergo 3 years RI with fine of Rs.5,000/- and in default of payment of fine to suffer further six months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 28.1.2000 at about 11.00 am Gopalsingh R/o Village Makla came out of his house he saw accused Dilipsingh removing his barbwire fencing. When Gopalsingh objected Dilipsingh abused him and he was armed with dharia and he started beating Gopalsingh which caused injury on his cheek behind his head and started bleeding. The family members of Dilip Manoharsingh,

Depalsingh,Khushalsingh and Vilamsingh came with axe and lathi and started beating Gopalsingh. Accused came with intention to kill and fled away from the spot. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the

526

prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby maintained.

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is maintained as Rs.5,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said amount Rs.4,000/- be paid to the injured Gopal Singh under Section 357 of the Cr.P.C. as compensation.

In the result, the appeal is allowed partly to the extent herein above indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

527

Cr.A.No.253/2004

05.05.2011.

None for the appellant. Shri Anil Ozha, learned Counsel for the appellant is appointed on behalf of the Legal Services Authority.

Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 28.1.2004 passed by Xth Additional Sessions Judge, Indore, in S.T No.134/2003, whereby the appellant was convicted for offence punishable under Section 324 IPC by sentencing him to undergo 3 years RI with fine of Rs.2,000/- and in default of payment of fine to suffer further six months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 24.11.2001 about

1.00 am complainant Ajit Pardeesi and his friend Ahat accused Mahesh was going to his field, as they reached near Mandovara Talkies, Rakesh Yadav, Mahesh and others came there and surrounded them and started hurling abuses and when they objected, the stopped the way. Accused Rakesh took out a knife and hit Ajit Pardeesi on his cheek, near the eyes, nose and near his right hand.Accused Rakesh caused injury on the head neck and on the right hand elbow of Mahesh. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial

528

Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.2,000/- to Rs.3,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1045/1998

05.05.2011.

529

Shri Raghuveer Singh, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 26.8.1998 passed by Special Sessions Judge, Mandleshwar, in Special Criminal Case No.185/1997, whereby the appellant was convicted for offence punishable under Section 3(i)(x) SC and ST (Prevention of Atrocities) Act by sentencing his to undergo 3 years RI with fine of Rs.10,000/- and in default of payment of fine to suffer further one years RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 19.2.1997 about 1 year ago Kanhaiya Bhil being of SC ST community had expired was working with complainant Sardarsingh on the salary of Rs. 8,000/- he worked for about 9 months during this period accused Kanhaiya use to torture him and demand money but he did not settle the dispute and during this discussion complainant hit with kick and fist. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not

530

require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.................../- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1160/2002

05.05.2011.

Shri Bhagwan Singh, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 30.9.2002 passed by Second Additional Sessions Judge, Kannod District Dewas, in S.T. No.183/1996, whereby the appellant was convicted for offence punishable under Section 148 IPC by sentencing him to undergo 2 years

531

RI with fine of Rs.500/- each and in default of payment of fine to suffer further three-three months RI and for offence under Section 435 of the IPC he was convicted and sentenced to 2 years RI and Rs.500/- as fine, the present appeal has been filed.

Brief facts of the prosecution case are that on 30.4.1996 at midnight in village Bichli by an unlawful assembly the members tried to kill Govind s/o Narmadaprasad Kalota and they were armed with lethal weapons and they assaulted the complainant party and set the tractor on fire. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant for the aforesaid offences and hence, the conviction of the accused is, hereby, maintained.

So far as the period of sentence is concerned, looking to the

532

limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from other charges the fine amount is enhanced from Rs.500/- to Rs. 3,000/- on two counts to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said fine amount Rs.5,000/- be paid to the legal heirs of deceased Govind as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.351/1997

05.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 28.3.1997 passed by learned 2^ndAdditional Sessions Judge Neemuch, in S.T. No.40/1995, whereby the appellants were convicted for offence punishable under Section 325,323 of the IPC for 3 years RI with fine of Rs.2000/- and under Section 325 IPC to undergo 6 months RI and fine of Rs.1,000/- and under Section 323 IPC to undergo 6 months RI in default of payment of fine to suffer further 6 months RI, the present appeal has been filed. Brief facts of the prosecution case are that on 26.11.1994 at

533

Village Rawatkheda at the well of Bherusingh there arose a dispute and the accused threatened to kill him and started pelting stones which caused injury on his head and he started bleeding. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced from Rs.2,000/- to Rs.5,000/- and from Rs. 1,000/- to Rs.3,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this

534

judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.941/1999

05.05.2011.

Shri Ashish Vyas, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 19.7.1999 passed by learned 1^stAdditional Sessions Judge Khargone, in S.T. No.200/1997, whereby the appellant was convicted for offence punishable under Section 363,366 and 376(1) of the IPC for 3 years RI with fine of Rs.2000/- and in default of payment of fine to suffer further 6 months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 8.3.1997 at 12.00 pm at Village Dalka Police Station Barud appellant had abducted a 14 year old girl and gumshudgi report was lodged and during investigation the girl was recovered from a house at Pithampur. According to the learned Counsel it was a case of consent. Upon the complaint of the complainant, case was registered against the appellant. After framing of

535

charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges however the fine amount is enhanced from ........................... to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court.

In the result, the appeal is allowed partly to the extent hereinabove

536

indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.988/1999

05.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 12.7.1999 passed by learned Additional Sessions Judge Jaora District Ratlam, in S.T. No.70/1996, whereby the appellants were convicted for offence punishable under Section 148 of the IPC and under Section 325/149 IPC to undergo 3 years RI with fine of Rs.1000/- by sentencing them to undergo 2 years RI with fine of Rs.4,000/- and in default of payment of fine to suffer further 6-6 months RI, and 3 months RI the present appeal has been filed.

Brief facts of the prosecution case are that on 23.8.1995 at

10.30 am at Police Station Industrial Estate Jaora, formed unlawful assembly to cause injury to Jagdish prasad s/o Bherulal. The complainants Sardar Khan, Abdul Rahman, Mohd. Hussain were armed with weapons and had come with the intention to kill Jagdishprasad. Upon the complaint of the complainant, case was

537

registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed. He also stated that appellant No.2 and 3 have died during the pendency of the case and the appeal against them abated. On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused- appellants and hence, the conviction of the accused is, hereby, maintained.

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced from 5000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure

538

to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said amount Rs. 8,000/- be paid to the complainant as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.820/2000

05.05.2011.

Shri Anil Ozha, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 11.7.2000 passed by learned 1^stAdditional Sessions Judge Mandsaur, in S.T. No.73/1999, whereby the appellants were convicted for offence punishable under Section 307,148 of the IPC under Section 147 and 307/149 of the IPC by sentencing them to undergo 3-3 years RI and with fine of Rs.4,000/- and in default of payment of fine to suffer further 6-6 months RI, the present appeal has been filed. Brief facts of the prosecution case are that complainant Kainhaiyalal had sold land which was in the name of his wife

539

Chandabai and mother-in-law Shantibai. In respect of the land there was dispute in Court with accused Bherulals family since about 15 years. During the discussion about the land accused Bherulal took out the sword with intention to kill the complainant struck a blow and he started bleeding. Bherulal again struck a blow which caused injury in his left hand and his small finger got cut. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court. Moreover, accused and complainant are related and the dispute arose all of a sudden there was no intention as such and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused- appellants and hence, the conviction of the accused is, hereby,

540

maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced from Rs.4,000/- to Rs.5,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. The amount to be paid to the complainant Kanhaiyalal as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

541

Cr.A.No.937/2000

05.05.2011.

Shri Ashish Gupta, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 31.7.2000 passed by learned XIth Additional Sessions Judge Indore, in S.T. No.89/1991, whereby the appellant was convicted for offence punishable under Section 324/34, 506-B & 326/34 of the IPC by sentencing him to undergo 1-1 years RI and 2 years RI with fine of Rs.200/- and in default of payment of fine to suffer further three months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 15.12.1990 at

9.30 am complainant Hemant and his younger brother Shrinivas reached at the house of the accused Gendalal to borrow money. Accused Gendalal went inside the house and brought the sword and with the intention to kill him gave a blow on his neck and complainant tried to stop but it hit on his left hand thumb and he started bleeding. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

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Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused- appellant and hence, the conviction of the accused is, hereby, maintained.

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges however the fine amount is enhanced from Rs.200/- on two counts to Rs.3000/- on two counts to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said

543

amount Rs.4,000/- be paid to injured Shrinivas and Rs.1,000/- to Hemant as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.3499/2011

13.05.2011.

Shri Varun Kulshrestha, learned Counsel for the petitioner. Shri Devendra Singh, learned Counsel for the respondent/State.

Counsel has moved IA No. 2764/2011 for amending the cause-title stating that the petition maybe allowed to be converted into a revision petition under Section 53 of the Juvenile Justice Act. The application is allowed. Counsel is directed to carryout the necessary amendment during the course of the day and since this Court has the roster for hearing criminal revisions, the matter is taken up for hearing.

Counsel for the petitioner has vehemently stated that by impugned order dated 7.2.2011 the Special Judge SC.ST,Ratlam,

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has in Criminal Appeal No. 297/2010 upheld the findings of the Trial Court and rejected the application of the petitioner Adam Khan for being released on bail.

Brief facts of the prosecution case necessary for elucidation are that on 13.11.2010 an unidentified person riding a Yamaha Motorcycle bearing Registration No. MP-14-A-5597 came towards the B.P.L.Square at Mandsaur, and shot the Director of Ashok Travels Pappu @ Nitesh Dosi and another person Dilip Singh Anjana was also shot at. The injured Dilip filed the FIR registering the offence. During the investigation, the motorcycle was recovered from the spot and it was also found that one Gabru Pathan had given training to his nephew Adam to shoot with the country made katta (gun) and due to previous enmity hatching a conspiracy Gabru Pathan and Afjal Pathan had instigated nephew Adam to shoot Pappu @ Nitesh. The charge sheet was also filed against Afjal and Gabru. Since the juvenile Adam was absconding, he was duly charged later by the Principal Magistrate of the Juvenile Court at Ratlam, on 7.10.2009.

The case proceeded against the juvenile and on 19.11.2000 the mother of Adam Khan Afsana Bee moved an application for handing over the custody of her child before the learned Magistrate. The case was only at the stage of investigation and no evidence was produced and hence, she stated that the proceedings were likely to take a long time and prayed for grant of bail.

The application under Section 437 of the Cr.P.C. however,

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was rejected and the delinquent was sent from the Rehabilitation Centre to the District Jail and hence she prayed that the custody of the child was wrongly given to the District Jail. In fact he was entitled to be enlarged on bail.

The Principal Magistrate on considering the application, however, found that it was not in the welfare of the delinquent since he was likely to come into contact with the co-accused and there was physical, moral and psychological danger to the child and hence, the Principal Magistrate rejected the application. Being aggrieved the mother of the present petitioner filed appeal before the Appellate Court which also considered the case and upheld the judgment passed by the Trial Court and hence, the present revision under Section 53 of the Juvenile Justice Act by the petitioner Adam Khan through his mother Afsana Bee. Counsel for the petitioner has vehemently stated that the whole scheme of the Juvenile Justice Act of 2002 is meant for the benefit of the juveniles and the heinousness of the crime is not to be considered at this stage. For this he relied on a judgment of this Court passed in the matter of Girraj Yadav vs. State of M.P. 2006

(3) MPLJ which considered only conditions enumerated in Section 12 should be seen and provisions of bail under the Criminal Procedure Code, 1973 do not govern the juvenile's bail application. To bolster his submissions, he also cited Rahul Rajendra Mishra vs. State of M.P.2001 (1) M.P.L.J. to state that even if the juvenile delinquent may appear prima facie guilty for grant of bail

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he is to be favourably considered under Section 18 on account of his age.

Finally drawing the attention of this Court to a judgment passed in the year 2000 in the matter of Sanjay Kumar Giri vs. State of M.P. 2000 (1) MPLJ 507 Counsel stated that the Court had considered the fact that the accused not entitled to benefit of provisions of Section 18 NDPS Act on ground that Juvenile Justice Act had an overriding effect over the Narcotic Drugs and Psychotropic Substances Act as it was a later act and the Court had specifically held that according to the position of law undoubtedly Section 18 of the Juvenile Justice Act made a general provision with regard to the right of the juvenile delinquent to be released on bail irrespective of the offence committed by him.

Counsel candidly admitted that the provisions were of the earlier act of 2000. He prayed that in the instant case also, the bail application has been rejected by both the Courts below on extraneous considerations and the beneficial registration and its scheme has been totally ignored. Stating that since Section 12 becomes a non obstante clause it has to be considered harmoniously with the scheme of the Act (Central Bank of India vs. State of Kerala (2009) 4 SCC. Counsel stated that proper harmonious interpretation had given to Section 12 of the Juvenile Justice Act and the petitioner to be released on bail and the custody be handed over to his mother Afsana Bee.

Counsel for the respondent/State on the other hand, has

547

opposed the submissions fully and supported the judgment of both the Courts below and categorically stated that Section 12 of the Juvenile Justice Act, 2002 categorically states that the juvenile shall not be so released if their appears reasonable grounds for ..............that the release is likely to bring home into association with any known criminal or expose him to moral physical or psychological danger or that his release would defeat the ends of justice.

Counsel stated that both the Courts below had categorically observed that he was threatened to shot by the country made pistol by his nephew Gabru Pathan and Afjal Pathan releasing him. Under such circumstances, then definitely bring home into contact with these known criminals besides the father of the delinquent has also made a request in writing to the Trial Court that he should not be released since he feared for the life of his child and in these circumstances, Counsel stated that the welfare of the delinquent should be utmost importance and there was no mistake committed by the Trial Court or by the Appellate Court. He prayed for dismissal of the revision.

On considering the above submissions and the impugned judgments, I find that the petition is without merit primarily on the ground that the benefit of the child is to be considered when there are allegations by the father himself that he would not be safe on his release besides, the important fact that cannot be marginalised is that he is likely to become known and hardened criminal and if the

548

FIR is perused it categorically states that the petitioner was trained by his uncle to shoot and has directly shot at Nitesh the deceased. Under these circumstances, no good ground is made out. Considering all the authorities cited by the Counsel, I find that they are of no use to the delinquent since the facts of the case are entirely different and this Court is also concerned regarding the welfare and security of the child if released.

The petition is dismissed.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.1791/2011

13.05.2011.

Ms.Mini Ravindran, learned Counsel for the petitioner. Shri Devendra Singh, learned Counsel for the respondent/State.

By this petition under Section 482 of the Cr.P.C. Counsel has invoked the supervisory jurisdiction of this Court merely seeking a direction to the Trial Court to expedite the trial primarily on the ground that the accused petitioner went to trial in the year 2007, more than 4 years have elapsed despite

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which, after framing of charge for offence under Section 120, 467,468 and 471 of the IPC the case is not progressing at all. The prosecution witnesses failed to appear and the prosecution evidence has barely started. If the prosecution witness list is considered, Counsel stated that there are 33 witnesses who are required to be examined. She candidly states that the case is one of false implication and under the circumstances, the petitioner is put to undue and unwarranted hardship. Only on the basis of the fact that the accused is the owner of one of the buses involved in the offence. She stated that the lethargic attitude of the Trial Court is directly affecting the business of the transport of the present petitioner.

Counsel for the respondent/State was granted time on two occasions i.e. on 25.4.2011 and 10.5.2011 to inquire regarding the stage of trial but, has been unable to do so. In view of the above, this Court is left with no other alternative but to draw an adverse conclusion against the prosecution.

The Trial Court is directed to complete the trial positively within a year from today without granting any adjournments uncalled for.

With these observations, the application is allowed. C.C. as per rules.

550

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.353/2003

05.05.2011.

None appears for the appellants. Shri Anil Ozha, learned Counsel for the appellants is appointed on behalf of the Legal Services Authority. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 28.3..2003 passed by learned IInd Additional Sessions Judge Dhar District Dhar, in S.T. No.354/2002, whereby the appellants were convicted for offence punishable under Section 326/34 of the IPC by sentencing them to undergo 2 years RI with fine of Rs.1000/- each and in default of payment of fine to suffer further one months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 4.9.2002 at evening 4.00 pm complainant Shanker has his agricultural land and

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there is private path where accused Samandarsingh had dug rivulet due to which fight arose and Shanker sustained a single grievous injury. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused- appellants and hence, the conviction of the accused is, hereby, maintained.

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced from Rs.1000/-

552

each to Rs.5000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of Rs. 10,000/- Rs.8,000/- be paid to the injured Shankar as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.631/2003

05.05.2011.

None appears for the appellants. Shri M.S.Chauhan, learned Counsel for the appellants is appointed on behalf of the Legal Services Authority. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 30.6.2003 passed by learned IIIrd Additional Sessions Judge District Dhar, in S.T. No.39/2002, whereby the appellants were convicted for offence punishable under Section 325, and 324 of the IPC by sentencing them to undergo 2 years RI with fine of Rs.500/- each and in default of payment of fine to suffer further three months RI, the present appeal has been

553

filed. Brief facts of the prosecution case are that on 3.10.2001 at night

8.00 pm complainant Bharatlal parked his tractor in front of the house of his younger brother Suresh and accused Sohan with axe, Bagdiram with farsi and Parwat, Jassu, Bhanwar, Dilip etc. came with lathis and started abusing Sohan and Bharatlal fell on the ground. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced from Rs.500/- each to Rs. 5000/-

554

each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the fine amount Rs. 10,000/- be paid to the injured as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.834/2003

05.05.2011.

Shri Ashish Vyas, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 22.8.2003 passed by learned Special Judge (SC/ST Prevention of Atrocities Act) Ujjain, in Special Sessions Case No.150/2001, whereby the appellants were convicted for offence punishable under Section 326 and 326/34 of the IPC by sentencing them to undergo 3 years RI with fine of Rs.2000/- each and in default of payment of fine to suffer further six-six months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 15.5.2001 at 10.45 pm accused Kadar Khan with sword, Farid Khan with Iron Rod and Jakir with a stick with intention to kill Tolaram started beating him upon which Tolaram fell down and thinking that he is dead the accused persons fled

555

away. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced from Rs.2000/- each to Rs. 5,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of

556

the sentence as directed by the Trial Court. Out of the fine amount Rs. 10,000/- be paid to the injured Tolaram as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.1264/2011

12.05.2011.

This is a suo motu revision filed by the Hon'ble High Court on IVRS Code.

Shri Girish Desai, Dy. Advocate General is appointed on behalf of the State as amicus curiae to assist this Court. He is allowed to inspect the record.

The subject matter of this suo motu revision by the Hon'ble High Court is an order dated 14.9.2010 passed by Subhash Solanki CJM Indore, in Criminal Case No. 1411/1995.

Brief facts necessary for elucidation are that charge sheet under Section 147,148,294,506, 427 and 325 of the IPC was submitted on 8.3.1983 in the Court of the JMFC Indore, by Police Station Gwaltoli Indore. The First Information Report

557

indicated that one Suresh Kumar had lodged the report against students of the Jain Hostel, Subhash, Santosh, Narendra and Vishal who had created a raucous on being demanded payment for the snacks and tea they had at the cafe. They had also abused and threatened to kill the complainant. They came to his hotel and caused nuisance,broken crockery, damaged furniture and had assaulted the complainant party. On 24.12.1985 N.K. Jain was released on bail by the Court and his signatures are available on the order sheet. Thereafter all the accused persons were declared as absconders since they failed to appear before the Trial Court and the concerned Magistrate by order dated 14.10.2003 declared them to be absconders and issued permanent non-bailable warrants of arrest against them.

From perusal of the concerned Case No. 1411/1995 it is found that no further proceedings were taken after 14.10.2003. Thereafter suddenly on 2.6.2010 Police Station Gwaltoli filed an application before the Trial Court for re-issuance of the arrest warrants against these accused persons. The Court however, held that the CJM would be appropriate authority to issue the warrants. On 18.6.2010 the applicant complainant

filed an application for early hearing of the matter and along with an application under Section 320(2) of the Cr.P.C.

558

through Advocate Shri Salil Airen and the Court took the same on record on 21.6.2010. On 30.6.2010 the Trial Court called for the record. On 3.9.2010 the complainant filed written submissions explaining the compromise and also sought permission to compound the offences under Section 320(2). The CJM Indore, proceeded to record the statements of Kamal Chand Jain, Suresh Chand Jain and Ashok Jain the complainants and fixed the case for orders on 14.9.2010. On 14.9.2010 the CJM granted permission to the applicant to compound the offences and accepted the compromise application and acquitted the accused persons. In this light, the High Court had referred the matter to this Court in its revisional jurisdiction to answer the question whether the impugned order dated 14.9.2010 passed by the CJM was in accordance with the provisions of law. Shri Desai, Dy. Advocate General appearing on behalf of the State and as a friend of the Court amicus curiae has raised the following points for consideration. After a lapse of almost 7 years, the original Criminal Case No. 1411/1995 was taken up. On 14.10.2003 had filed an application for re-issuance of arrest warrant regarding the accused and suddenly the complainant has sprung forward and filed an application for early hearing along with an application

559

for compromise on 18.6.2010. Besides, he stated that the offences under Section 147, 148, 294,506(2) of the IPC as shown in the charge sheet have become compoundable with the permission of the Court only after the amendment by the Cr.P.C. Amendment Act, 2008. And since the incident is of the year 1983, the Amending Act No. 17/1999 has not provided for retrospective application and in this light, the compounding of the offences was not permissible.

The second aspect Counsel pointed out was there was a difference between a compromise recorded in the absence of the accused when the permission of exemption was granted by the Court.

Here in the instant case, Counsel stated that the accused were absconding for several years besides, the complainant has filed an application for unilateral compounding of the offence which would not be permissible under the circumstances. Specially, in the light of the fact that the accused are declared absconders although he candidly admitted that the Court cannot insist on the physical appearance of the accused, it was to the discretion of the Court concerned, to accord or not to accord permission for compromise.

On considering the above submissions and on giving my anxious consideration to the question raised in this reference I

560

find that the singular question that requires to be answered is whether the CJM Indore, has passed the impugned order dated 14.9.2010 in Criminal Case No. 1411/1995 in accordance with Section 320(2) of the Cr.P.C. as amended by the Amending Act No.17/1999.

It is trite to state that a statute is presumed to be prospective unless provisions of the statute permit retrospective application or unless held by a court of law to be retrospective. In fact the Court had many a times to consider the question whether the change brought about by the amendment would affect the pending actions and, therefore, the same can be brought about only if a provision is made for the change over for all proceedings, or if there is some clear indication in the new law or amendment regarding the pending actions.

In the instant case, there is no such saving clause found in the Amending Act No.17/1999. Undoubtedly therefore, the learned Magistrate has erred in allowing the application for compounding.

I find that recently in the matter of Jagdish Chanana and ors. V. State of Haryana and another (AIR 2008 SC 1968) the Apex Court had considered the compounding of offences under Section 419,420,465,468,469, 471, 472 and 474

561

read with Section 34 of the IPC some of the offences are non- compoundable under the scheme of Section 320(2) of Cr.P.C. However, the Apex Court had held that since the dispute was of a purely personal nature and since no public policy was involved in the transactions that had been entered into between the parties, in the light of the compromise to continue when the proceedings would be a futile exercise and the Apex Court had quashed the FIR. In the said case, the compromise had been recorded and admitted by all parties and the parties had also agreed that the dispute was purely personal in nature arising out of commercial transaction.

In the instant case, I find that the offence is under Section 147,148 of the IPC like forming an unlawful assembly and causing damage to public property, a cafe and in an open place. Moreover, the accused Shri N.K. Jain is a delinquent Judicial Officer and the learned Magistrate does not seem to have given any thought to this aspect. Then the compromise resulting in the acquittal of the accused can be recorded only when both the parties come to terms or if the accused has been exempted by the Court or in absence through his Counsel. As pointed out by the amicus curiae Shri Desai, in the instant case the accused persons are declared absconders and the application for compounding ought to have been

562

considered by the learned Magistrate in this light and he has failed to do so. Moreover, if applications under Section 320(2) of the Cr.P.C. are used to defeat the purpose of law and fail to uphold the dignity of the rule of law they ought not to be permitted. Thus, I find that the manner in which the compromise has been recorded is not in keeping the scheme under Section 320(2) of the Cr.P.C. and the order dated 14.9.2010 appears to be patently illegal and erroneous. With the aforesaid observations, the reference I think has been fully answered.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

563

Cr.A.No.1031/2000

05.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 26.8.2000 passed by Second Additional Sessions Judge, Shajapur, in S.T. No.75/1998, whereby the appellants were convicted for offence punishable under Sections 148, IPC by sentencing them to undergo 1 years RI with fine of Rs.300/- and in default of payment of fine to suffer further one month RI, and offence under Section 325/149 RI for 2 years and fine of Rs.500/- the present appeal has been filed.

Brief facts of the prosecution case are that on 18.3.1998 at around

9.30 pm accused Ramcharan, Goverdhan, Hokam, Prahlad, Manohar, Satyanarayan, Chandu and Radheshyam for unlawful assembly with farsi and lathis started shouting to kill Surajsingh. Accused Ramcharan struck farsi blow on Surajsingh which caused injury on his cheek. Accused Satyanarayan struck blow of lathi, Govardhan struck blow by farsi and together they assaulted him. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

564

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges the fine amount is enhanced from Rs.1,000/- to Rs. 2,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court. Out of the said amount Rs.15000/- be paid to the injured as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.879/2000

05.05.2011.

565

Shri Raghuveer Singh, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 31.7.2000 passed by Additional Sessions Judge, Manasa District Neemuch, in S.T. No.161/1995, whereby the appellant was convicted for offence punishable under Sections 326 IPC by sentencing him to undergo 3 years RI with fine of Rs.500/- and in default of payment of fine to suffer further three months SI, the present appeal has been filed.

Brief facts of the prosecution case are that on 28/29.6.1995 at around 12.30 pm complainant Nanalal was sleeping in the courtyard of the bus stand and with weapons he was injured on his left leg, hand and on the head he sustained 5 injuries which were caused by accused Babru by dharia. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

566

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.500/- to Rs. 10,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court. Out of the said amount Rs.8,000/- be paid to injured Nanalal as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.827/2000

05.05.2011.

Shri Sunil Jain, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

567

Being aggrieved by the judgment dated 19.7.2000 passed by Additional Sessions Judge, Dhar Distriat Dhar, in S.T. No.160/1999, whereby the appellant was convicted for offence punishable under Sections 325 IPC by sentencing him to undergo 2 years RI with fine of Rs.5000/- and in default of payment of fine to suffer further one months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 2.5.1999 at around

10.00 am complainant Amarsingh mother Noorabai was putting kathi accused Dhyansingh and his brother Bacchu and Bhuwan came with a deng. Accused Dhyansingh caused injury on head and shoulder of Noorabai by deng. As per the Counsel the incident took place on the spur of the moment. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no

568

fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.5000/- to Rs. 10,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. So also Rs. 8000/- be paid to injured Noorabai as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.3144/2011

12.5.2011.

Shri A.K.Saraswat, learned Counsel for the applicant. Ms. Mamta Shandilya, learned Counsel for the respondent/State.

Heard on IA No.2321/2011 which is an application for

569

dispensing filing of certified copy. He states that the application has become infructuous and the certified copy has already been filed by him. The application is, therefore, dismissed.

Considering the application under Section 439 of the Cr.P.C. for grant of bail I find that all the four accused in-laws of the deceased have already been released on bail and the present applicant is the old father-in-law aged 65 years and is obviously suffering from pulmonary T.B. and has been granted temporary bail for more than three occasions. Counsel states that the liberty has not been misused by him and he is still not out of danger and under treatment of a private doctor. Prayed that the application be allowed.

Counsel for the respondent/State on the other hand, has opposed the submissions and stated that all the co-accused had been released.

On considering the above submissions, the materials on record and the fact that the applicant is 65 years of age and in Jail since 10.2.2010, the application is allowed in the interest of justice. However, stringent measure needs to be imposed, therefore, it is ordered that the applicant be released on bail on his furnishing a bail bond for a sum of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety of like amount to the satisfaction of the Trial Court for his appearance before the concerned Trial Court on all dates of hearing as may be fixed by the Trial Court in this behalf during the pendency of trial.

570

It is further directed that the applicant shall attend on each hearing of the trial before the Sessions Court out of which this bail arises. In addition, he shall also mark his presence in the concerned Police Station on the first Sunday of every month between 10.00 AM to 12.00 PM during the pendency of the trial. Any default in attendance in Court and marking presence in the concerned police station, would result in cancellation of bail granted by this Court thereby entitling the Police to take the applicant in custody. It is also directed that the applicant shall abide by all the conditions enumerated under Section 437(3) of the Cr.P.C. C.C. as per rules.

(MRS.S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.227/2002

05.05.2011.

None for the appellants. Shri Anil Ozha, learned Counsel is appointed on behalf of the Legal Services Authority for the appellants . Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 23.1.2002 passed by Additional Sessions Judge Biaora District Rajgarh, in S.T. No.73/2001, whereby the appellants were convicted for offence punishable under

571

Section 324 read with Section 323/34 IPC and under Section 506 of the IPC by sentencing them to undergo 3 months RI with fine of Rs.500/- each and in default of payment of fine to suffer further three-three months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 9.9.1999 at 9.00 pm night at Village Raipuria there was a land dispute and exchange of abuses took place; accused Gajrajsingh gave a lathi blow to Vishnu on his head. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone

572

and the fact that appellants have been acquitted from all other charges the fine amount is enhanced from Rs.500/- each to Rs. 5,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of Rs.15,000/-, Rs.10,000/- be paid to injured Vishnu as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

573

Cr.A.No.270/2002

05.05.2011.

None for the appellants. Shri B.L.Yadav, learned Counsel is appointed on behalf of the Legal Services Authority for the appellants . Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 12.2.2002 passed by Additional Sessions Judge Ujjain, in S.T. No.57/2001, whereby the appellant was convicted for offence punishable under Section 325 and 325/34 IPC on two counts by sentencing them to undergo 3 years RI each count with fine of Rs.300/- each and in default of payment of fine to suffer further three-three years RI, the present appeal has been filed. Brief facts of the prosecution case are that on 4.11.2000 at 11.45 night at Village Bordamanda Hindu Bagri, Babu Bagri Kanhaiyala Bagri and his sons came and started beating Ashok and Kailash when they were sleeping which caused injury on hands, leg, knee and head. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the

574

principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges the fine amount is enhanced from Rs.300/- each to Rs. 3,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. The said amount be paid equally to both injured witnesses as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

575

M.Jilla. Cr.A.No.1173/2002

05.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 30.9.2002 passed by Second Additional Sessions Judge, Kannod District Dewas, in S.T. No.183/1996, whereby the appellant was convicted for offence punishable under Section 148 IPC by sentencing them to undergo 2 years RI with fine of Rs.500/- each and in default of payment of fine to suffer further three-three months RI, the present appeal has been filed. Brief facts of the prosecution case are that on 30.4.1996 at

576

midnight in village Bichli by an unlawful assembly the members tried to kill Govind s/o Narmadaprasad Kalota and they were armed with lethal weapons. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence, the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges the fine amount is enhanced from Rs.500/- to Rs. 3,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference

577

to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said fine amount Rs.15,000/- be paid to the legal heirs of deceased Govind as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1105/2007

05.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellant. Shri Anil Ozha, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 18.9.2007 passed by Additional Sessions Judge, Mahidpur District Ujjain, in S.T. No.346/2006, whereby the appellant was convicted for offence punishable under Section 324 IPC by sentencing him to undergo 3 years RI with fine of Rs.500/- and in default of payment of fine to suffer further one months RI, the present appeal has been filed. Brief facts of the prosecution case are that on 2.10.2006 at around

11.00 pm complainant Badri was sleeping in his house with his wife and children and that time his neighbour Chandrakant came and told Badri to save him. As he came out, accused gave a blow of knife which caused injuries on his abdomen. According to the learned Counsel he has been falsely implicated due to old enmity. Upon the complaint of the

578

complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.500/- to Rs. 5,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the fine amount Rs.4,000/- be paid as

579

compensation to the injured Badri as compensation under Section 357 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1176/2010

11.05.2011.

Ms. Archana Kher, learned Counsel for the appellant. Heard on IA No. 2465/2011 which is an application for grant of temporary suspension of accused No.1 Jagdish. The applicant states that the appellants daughter marriage is fixed on 15.5.2011. The invitation card along with the certificate of the Sarpanch is filed by the application.

Shri Anil Ozha, and Shri F.A. Siddique from Thana Kurawar, is present in person and he stated that the report dated 11.5.2011 by the Thana Prabhari Kurawar, states that the facts have been verified and the marriage is to take place on the said date. In view of the above, the application is allowed.

It is directed that subject to the appellant furnishing bail for Rs. 25,000/- (Rs. Twenty Five Thousand) with one surety in the like amount to the satisfaction of the Trial Court he shall be enlarged on bail for a period of 15 days from today and he shall surrender himself before the Trial Court on or before 26.5.2011. Failure to do

580

so and he shall be liable to be arrested immediately without reference to this Court.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1242/2010

15.04.2011.

Ms. Mamta Shandilya, learned Counsel for the appellant/State.

Shri Anand Soni, learned Counsel for the respondents. Heard on IA No. 6057/2010 which is an application for condonation of delay.

Only 5 days delay has been occasioned according to the Counsel. Although she candidly admits that the application has not been supported by the affidavit of the OIC. For reasons stated in the application, the application is allowed and the appeal is taken up for hearing. This is an appeal filed under Section 377 of the Cr.P.C. by the appellant/State against the respondents being aggrieved by the judgment dated 30.7.2010 passed by the XIIth Additional Sessions Judge Indore, in S.T. No. 20/2008 convicting the accused-respondents for offence under Section 148, 307/149 of the IPC and sentencing them to one years RI

581

and 3 years RI respectively and fine of Rs. 1,000/- and in case of default, to undergo 15 days simple imprisonment. Counsel stated that the appeal has been filed for enhancement of sentence since the Court had duly convicted the respondents for offence under Section 307 of the IPC and looking to the medical evidence available on record, Counsel stated that the sentence was quite meager under the circumstances.

Briefly stating the facts of the case it is found that the prosecution was launched due to the incident that occurred on 24.2.2007 at 10 pm at Indore when the Telephone Operator Mohd.Ashraf relayed information to the Police Station at Malharganj Indore, that one injured Bherusingh @ Bherulal R/ o Village Jalodia was admitted to Hospital due to the injuries sustained by him during the assault. He was admitted by his brother-in-law Kamalsingh. On receiving this telephonic information, the same was noted in the Rojnamcha Sana in the Police Station Malharganj at 1598. On the next day i.e. 25.2.2007 Kamalsingh along the Bherulal filed their written statements informing that on the previous day at 6 pm when both of them were going on motorcycle, they were stopped by accused Darbarsingh, Tufan, Sohan, Gokulsingh and Arjun who were armed with lethal weapons such as revolver, dharia

582

and lathis and Darbarsingh tried to stop the motorcycle but Bherusingh who was driving did not stop; whereupon Darbarsingh fired from the revolver and rest of the accused persons assaulted with the weapons that they were carrying, as a result of which, Bherusingh was rendered unconscious. Thereafter, he was taken to the Bafna Hospital and the statements of Kamalsingh were recorded. The accused were charged by the police for offence under Section 147, 148, 307 read with Section 149 of the IPC. However, since the crime had occurred in the jurisdiction of the Depalpur Police Station, the FIR was duly sent to the Police Station at Depalpur and crime was registered at No. 49/2007 for offence under Section 147, 148, 307 read with Section 149 of the IPC. Thereafter spot map was prepared and the accused Bherusingh was treated medically and the opinion was obtained. The samples of simple and controlled earth were collected. The clothes of Bherulal and Kamalsingh were also seized and sent for FSL. The statements of Tufansingh, Arjun, Sohansingh, Gokulsingh and Darbarsingh were also taken and lathis and other weapons were recovered from them and thereafter they were arrested. They were thereafter duly committed to their trial. The accused abjured their guilt and stated that since Bherusingh had illegally taken over possession of their land

583

and had falsely implicated them by filing the said report, Lakhansingh the defence witness also filed copy of the decision by the Revenue Court passed by the Tehsildar Gautampura in their defence.

The Trial Court on considering the evidence however, convicted the accused as hereinabove stated and hence, the present appeal for enhancement of sentence by the State. Counsel for the State has vehemently stressed the fact that Dr. Anil Bafna PW-14 had categorically stated in the MLC that injured Bherusingh received 5 injuries and the right eye was also completely lacerated. There were multiple contusions on both the hands and the injured witness also received fractures. The left leg was also fractured whereas there were contusions on the right leg. Besides this, Counsel stated that all the accused respondents were wielding lethal weapons such as dharia, lathis and the fire arm and inference of their common intention has rightly been drawn by the Trial Court since no specific act can be ascribed to any one of the accused and hence, they have been convicted with the aid of Section 149 and 148 of the IPC.

The previous enmity also has been completely

established and under the circumstances, Counsel stated that according to Section 307 of the IPC which mandates that the

584

accused shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. The sentence under the present circumstances is quite meager and not at all deterrent, she prayed that the impugned judgment be set-aside only to the extent of enhancing the sentence.

Counsel for the respondent-accused on the other hand, has vehemently stressed the fact that the impugned judgment is based on valid and cogent reasons. He stated that Dr. Anil Bafna PW-14 failed to mention that the injuries were dangerous to life. Moreover, the prosecution has not been able to establish its case although accused Darbarsingh is alleged to have wielded a fire arm and shot at the injured Bherulal to stop him. No injury corresponding to the fire arm has been discovered on the body of the injured.

Thirdly, Counsel stated that the Rojnamcha Sana entry does not name any of the accused persons. Moreover, the identification has also not been properly carried out. The injured complainant himself has stated in Ex.P/23 and Ex.P/24 before the doctor that the assailants were not known to him and under the circumstances, Counsel stated that the conviction itself was bad in law and at the most the accused could have been convicted for offence under Section 325 of the IPC. He

585

prayed for dismissal of the appeal. On considering the above submissions, I find that there is no substance in the submissions put forth by the Counsel for the appellant/State primarily, on the ground that according to Section 307 IPC it is not mandatory that a sentence of 10 years be imposed. It categorically states that a description for a term which may extend to 10 years then under the circumstances, since none of the injuries have been dangerous to life and more specifically I find that no specific overt act can be ascribed to any of the accused then, under the circumstances, the sentence cannot be enhanced regarding all the accused. Moreover, the appeal of the accused bearing No.892/2010 has been decided along with this appeal and only accused Arjunsingh and Toofansingh have been convicted for offence under Section 325 of the IPC whereas all the other accused have been acquitted from all the offences. And in these circumstances, I find that the prayer of the Counsel for the appellant/State cannot be acceded to.

The appeal is, therefore, dismissed as being without merit.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

586

Cr.A.No.438/2011

09.05.2011.

Ms. Sonali Gupta, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 2028/2011 which is an application for suspension of sentence regarding accused-appellant Mahesh. She has vehemently urged the fact that it was a case of false implication when the Trial Court had already acquitted the accused from offence under Section 395/397 of the IPC and common intention cannot be imputed to the present appellant. Moreover, what has been recovered from the accused are merely currency notes of Rs. 10,000/- and a pant and shirt which are everyday articles and moreover, Counsel stated that a short sentence of 3 years had been imposed. So also the accused was on bail during the trial and has not misused the liberty granted to him. Out of the short sentence of 3 years, the accused-appellant has already undergone 6 months sentence. Counsel prayed for grant of suspension of sentence. Counsel for the respondent/State on the other hand, has opposed the submissions but candidly stated that the accused has been convicted for offence under Section 411 of the IPC and the appellant has undergone almost 6 months of the

587

custodial sentence. In this view of the above, considering the record and the impugned judgment, I find that the application needs to be allowed in the interest of justice. It is, hereby, allowed. It is directed that the accused/appellant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 6.6.2011 and on all subsequent dates as may be fixed by the Registry in this behalf.

In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.391/2011

09.05.2011.

588

Shri Sunil Verma, learned Counsel for the petitioner. Shri G.S.Chauhan, learned Counsel for the respondent/State.

By this petition under Section 401 of the Cr.P.C. Counsel for the petitioner urged that the learned Judge of the Trial Court in S.T. No. 156/2010 has by order dated 21.2.2011 erred in rejecting the application of the accused-petitioner under Section 311 of the Cr.P.C. moved for recall of certain witnesses.

Counsel stated that the personal inability of the Counsel had already been expressed before the Trial Court despite which, the cross-examination has been conducted by his Junior and there were a lot of important points which remained in the cross-examination and for the conduction of a fair trial, Counsel urged that the accused was entitled to an opportunity of being heard and that is why he had moved the application under Section 311 of the Cr.P.C. which has been cursorily dismissed by the Trial Court. He prayed that the impugned judgment be set-aside and the accused be granted a single opportunity to cross-examine the said witnesses. Counsel stated that the accused was also willing to bear the expenses and cost of the three witnesses.

Counsel for the respondent/State on the other hand, has

589

fully supported the impugned judgment and stated that the application has come at the fag end of the trial. The matter is already listed for final arguments and is nothing but an attempt to protract the proceedings. Moreover, the learned Judge of the Trial Court has also observed that a detailed cross-examination has already been conducted by the Counsel for the accused on the said date. He prayed for dismissal of the revision petition. On perusing the impugned judgment and the above submissions, I find that there is no merit in the contentions put forth by the Counsel. Unwarranted sympathy causes prejudice to the other side. Moreover, more than ample opportunity has been granted to cross-examine the said witnesses. So also I find that the witnesses are all professionals one of them being Dr. H.K. Dwivedi and such professional persons cannot be expected to be put out of their work again and again. Litigation is not a luxury available to the accused. More than sufficient opportunity has been granted to the petitioner. I do not find any merits in the contentions put forth. Moreover, prolonging the trial is also not in the interest of the accused. The application is, therefore, dismissed as being without merit.

590

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.733/2007

06.05.2011.

Shri Harshwardhan Pathak, learned Counsel for the appellants. Shri Anil Ozha, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 13.6.2007 passed by Special Judge Dhar, (SC & ST) Prevention of Atrocities Act in Special Criminal Case No.35/2004, whereby the appellants were convicted for offence punishable under Sections 148,323,325, by sentencing them to undergo 3 months each RI and fine of Rs.500/- each and under Section 148 and 325 to undergo 2 years RI each and fine of Rs.1500/- each. In default of payment of fine to suffer 2 months and four months each RI.

591

All the sentences to run concurrently, the present appeal has been filed. Brief facts of the prosecution case are that on 28.10.2003 at around 5.00 pm accused with Dhari, Lathi, Lohangi with iron rod and pipe surrounded them and abused Babulal on account of crossing from the field upon saying Rajesh struck with lathi on his back, Geetabai struck him with lohangi on both his legs and caused injuries. Vijay struck Bharatsingh with Dharia and caused injuries on his head, Shyamlal struck with lohangi on palm of both hands, on right leg, left leg and on both thighs and buttocks Munnalal struck lathi blow on the back of Bharat. Devkaran struck Pradeep with lathi on his back and Deepak struck with iron rod on right and left elbow and on right wrist caused injuries. According to the learned Counsel the fight took place all of a sudden and the entire family has been falsely roped in. Upon the complaint of the complainant, case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no

592

fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges however the fine amount is enhanced to Rs. 3,000/- each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellants shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said amount Rs. 20,000/- be divided equally and paid as compensation to each of the injured witness under Section 457 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellants shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

593

Cr.A.No.155/2000

06.05.2011.

None for the appellant Shri Kailash Kaushal, learned Counsel for the appellant is appointed on behalf of the Legal Services Authority. Shri Anil Ozha, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 10.1.2000 passed by XVth Additional Sessions Judge Indore, in S.T. No.191/1999, whereby the appellant was convicted for offence punishable under Sections 324 IPC by sentencing him to undergo 3 years RI the present appeal has been filed.

Brief facts of the prosecution case are that on 23.3.1999 at around

12.00 pm accused Khemchand caused injury to Kamlabai his wife on her neck,chest, on the left leg and in the finger of right hand. On her hue and cry people from the vicinity Shyamdas, Ishwar and Haridas reached there to save Kamlabai and the accused fled away. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial

594

Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced to Rs. 5,000/- to meet the ends of justice. The fine amount shall be paid by the accused within one month from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said amount Rs. 3000/- be paid to the injured wife as compensation under Section 457 of the Cr.P.C.

In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

595

Cr.A.No.827/2000

05.05.2011.

Shri Sunil Jain, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 19.7.2000 passed by Additional Sessions Judge, Dhar Distriat Dhar, in S.T. No.160/1999, whereby the appellant was convicted for offence punishable under Sections 325 IPC by sentencing him to undergo 2 years RI with fine of Rs.5000/- and in default of payment of fine to suffer further one months RI, the present appeal has been filed.

Brief facts of the prosecution case are that on 2.5.1999 at around

10.00 am complainant Amarsingh mother Noorabai was putting kathi accused Dhyansingh and his brother Bacchu and Bhuwan came with a deng. Accused Dhyansingh caused injury on head and shoulder of Noorabai by deng. As per the Counsel the incident took place on the spur of the moment. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

596

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.5000/- to Rs. 10,000/- to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. So also Rs. 8000/- be paid to injured Noorabai as compensation under Section 357 of the Cr.P.C. In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.386/2003

05.05.2011.

597

None for the appellant. Shri Ritesh Inani, learned Counsel for the appellant is appointed on behalf of the Legal Services Authority.

Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 29.3.2003 passed by Additional Sessions Judge, Sardarpur Distriat Dhar, in S.T. No.37/2002, whereby the appellant was convicted for offence punishable under Sections 326 IPC and by sentenced to undergo 1 ½ years RI with fine of Rs.500/- and in default of payment of fine to suffer further RI for 1 month, the present appeal has been filed.

Brief facts of the prosecution case are that on 21.9.2001 at around

8.00 am appellant, complainant Krishnakant went to his field and other13 accused along with lethal weapons like bow and arrow, bricks and stones came and appellant Kailash struck a blow with arrow which struck on the back of Krishnakant. Accused Shantilal also gave a blow by arrow which struck Krishnakant and his right leg. Appellant Jagdish arrow struck on the upper part of the abdomen. The prosecution case is that the other accused struck Krishnakant with Lathi and stones. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed. Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court so also all the accused have been acquitted from offence under Section 148,307, 149 of the IPC and, hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside. Learned Counsel for the State has per contra, stated that the

598

judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellant be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellant and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.500/- to Rs. 3,000/- to meet the ends of justice. Rs.2,000/- shall be paid to the injured Krishnakant as compensation under Section 357 of the Cr.P.C. The fine amount shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

Cr.A.No.146/2000

05.05.2011.

Shri Ramesh Gangare, learned Counsel for the appellant. Shri Anil Ozha, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 14.2.2000 passed by Additional Sessions Judge, Agar Distriat Shajapur, in S.T. No.306/1992,

599

whereby the appellant was convicted for offence punishable under Sections 452, 324/34 of the IPC by sentencing them to undergo 2, ½ years RI with fine of Rs.500/- and in default of payment of fine to suffer further RI for 2 months, and also awarded sentence of fine only of Rs.800/- under Section 324 IPC and in default of payment of fine to suffer further RI for 4 months, the present appeal has been filed. Brief facts of the prosecution case are that on 10.6.1992 at around

8.30 pm appellant, complainant along with other co-accused namely Mukesh entered the house of the complainant and assaulted his daughter Sunia by knife on her hand. There was compromise between the parties. Upon the complaint of the complainant, case was registered against the appellant. After framing of charge and recording of evidence, appellant was convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained.

600

So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellant and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellant has been acquitted from all other charges the fine amount is enhanced from Rs.800/- to 3,000/- and from Rs.500/- to Rs.2000/-to meet the ends of justice. The total fine amount of Rs. 5000/- shall be paid by the accused within two months from date of this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. Out of the said amount Rs. 4000/- be paid to the prosecutrix under Section 457 of the Cr.P.C. as compensation.

In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1118/2002

05.05.2011.

Shri R.S. Parmar, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State. Being aggrieved by the judgment dated 24.9.2002 passed by Additional Sessions Judge, Biaora Distriat Rajgarh, in S.T. No.126/1992, whereby the appellants were convicted for offence punishable under Sections 147,148, 324/149 IPC by sentencing them to undergo one years RI each and 2 years RI the present appeal has been filed.

601

Brief facts of the prosecution case are that on13.10.1991 at around 12 pm appellants, complainant and injured persons assaulted Babulal, Mangilal and Gajrajsingh. The dispute arose due to dispute pertaining to agricultural land and it is alleged that the appellants assaulted 3 persons with lathis and farsi and they sustained injuries. Upon filing of complaint the case was registered against the appellants. After framing of charge and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.

Learned Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the prosecution witnesses which has not been considered by the Trial Court and hence,the appeal deserves to be allowed and the judgment of conviction deserves to be set-aside.

Learned Counsel for the State has per contra, stated that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.

On perusal of the record and the above submissions, I find, that no fault can be found with the conviction of the accused-appellants and hence, the conviction of the accused is, hereby, maintained. So far as the period of sentence is concerned, looking to the limited prayer made by the Counsel for the appellants and the nature of offence the custodial sentence is reduced to the period already undergone and the fact that appellants have been acquitted from all other charges the fine amount is enhanced to 3000/-each to meet the ends of justice. The fine amount shall be paid by the accused within two months from date of

602

this judgment, failure to do so and the appellant shall be liable to be arrested by the Police immediately without reference to this Court and shall undergo the remaining part of the sentence as directed by the Trial Court. The amount to be paid equally to injured witness as compensation. In the result, the appeal is allowed partly to the extent hereinabove indicated. In case of default the appellant shall undergo the sentence as directed by the Trial Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.1122/2009

06.05.2011.

Shri Raghuveer Singh, learned Counsel for the appellant. Shri Anil Ozha, learned Counsel for the respondent/State. Heard.

By this appeal under Section 374 of the Cr.P.C. the accused appellant Sarvan has challenged his conviction by judgment dated 22.9.2009 passed by the third Additional Sessions Judge Dewas, in S.T. No. 102/2009 convicting the accused appellant for offence under Section 376 (1) of the IPC and sentencing him to 10 years RI and fine of Rs. 1,000/-. In case of default, he has to undergo RI of

603

two years. Counsel for the appellant has vehemently stressed the fact that there is no evidence on record to justify the conviction. The testimony of Dr. H. Rahman PW-6 did not give any clear opinion regarding the rape. Similarly, the testimony of Dr. Rajeshwari Parmar PW-8 has been disbelieved by the Trial Court itself. Moreover, the testimony of the prosecutrix has not been found to be reliable. Similarly, Counsel stated that the other witnesses were all related and interested witnesses and on this ground also, the conviction ought to be set-aside.

More importantly, Counsel stated that vide IA 4810/2010 the disputing parties had come to a compromise and had filed the application before this Court. Since the offence was non- compoundable, this Court has rejected the same. However, the fact remains that the prosecutrix did not wish to prosecute the appellant any further.

He placed his reliance on two judgment AIR 1994 Supreme Court 222 Raju v. State of Karnataka whereby the Apex Court upheld the conviction of the accused for offence under Section 376 IPC. However, considering the young age and the fit of passion had reduced the sentence to 3 years RI. Similarly, relying on a judgment of the Apex Court Counsel urged that in the matter of AIR 1980 Supreme Court 249 Phul Singh v. State Of Haryana ., under the similar circumstances, the Apex Court had reduced the RI from 4 years to 2 years RI.

604

Counsel for the respondent/State has however, opposed the submissions and stated that the medical opinion was not definite because the prosecutrix was a married woman however, he supported the impugned judgment.

On considering the above submissions, the evidence on record, I find that by the very fact that the witnesses were all related witnesses, is no reason to discard their testimony and thus no fault can be found with the conviction of the accused for the aforesaid offence.

However, regarding the sentence, I find that since the parties have already settled their grievances, in view of the decisions cited by the Counsel for the appellant the sentence needs to be reduced. Hence, although I uphold the conviction of the accused for all these offences u/s 450,327,376(1) of the IPC. the sentence is reduced for offence under Section 376 (1)from 10 years to 3 years and for offence under Section 327 IPC from 2 years to 1 year. The fine amount however, is raised from Rs. 3,000/- in all to Rs. 10,000/- . Both sentences to run concurrently. The fine amount be paid to the prosecutrix as compensation under Section 357 of the Cr.P.C. In case of default in payment, he shall undergo the sentence as directed by the Trial Court.

Thus, the appeal is partly allowed the impugned judgment is set-aside only to the extent hereinabove indicated. The appellant is in jail. He shall undergo the remaining part

605

of sentence if any. In case he has already undergone, the custodial sentence, he shall be set at liberty forthwith under intimation in writing to this Court.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.1576/2011

29.04.2011.

Shri Suraj Sharma, learned Counsel for the applicant. Heard.

By this application under Section 378(3) of the Cr.P.C. the State is aggrieved by judgment dated 25.11.2010 passed by the Judicial Magistrate Class-I in Criminal Case No.209/2008 dated 5.8.2008 acquitting the accused respondents from offence under Section 148, 332/149,435/149 and 427/149 of the IPC.

Counsel for the State has vehemently urged the fact that there was ample evidence on record for convicting the respondents despite which, the learned Judge of the Lower Court has acquitted the accused from the aforesaid offences. Stating that the evidence of Narayan Singh PW-1 the scribe of the FIR as well as the complainant was very much reliable and

606

there was no need to doubt his statements. Counsel prayed that the impugned judgment was contrary to provisions of law and prayed that leave be granted to file appeal. On perusing the impugned judgment, I find, that the incident arose out of the fact that at SDOP Office Bagli, dissatisfied mob of 250-300 persons had approached the SDOP Office due to the accident that had taken place and a young boy called Mohan Jamle had died in the accident and the mob was excited by the apathy shown by the SDOP and, hence, they had forced themselves into the SDOP Office and damaged its property. They had even caused damage to the fax machine, typewriters, cupboards and furniture etc. all that were available in the SDOP Office. They were damaged, broken and later set afire and, hence, Narayan Singh PW-1 the Sub-Inspector stationed at SDOP Office Bagli, had filed the FIR. The Trial Court on considering the evidence however, found that none of the witnesses from the spot had supported the complainant. There was no other evidence on record to implicate the accused respondents. Moreover, they were named in the FIR by Shri Narayan Singh PW-1 on instructions of the Staff members at the SDOP Office and the common intention was also not proved by the prosecution. The learned Judge also found that the incident had occurred on one of the main roads

607

of Bagli and in a residential area with a hospital and shops around despite which not a single independent witness has been examined. None of the witnesses have stated that the accused persons had come fully armed to the SDOP Office or there was any intention to set the SDOP Office afire and damage property. Since the offence under Section 148 of the IPC could not be established against the accused persons, the Trial Court also acquitted the accused from offence under Section 149 IPC. Besides, there was no concrete evidence regarding offence under Section 435 as well as 332 IPC and hence the Trial Court has rightly acquitted all the accused from the said offences.

In the light of these facts and on perusing the impugned judgment, I find that the judgment is based on proper appreciation and marshalling of evidence and the Apex Court had time and again cautioned that the High Court would not be justified in interfering with the judgment of acquittal passed by the Trial Court unless, the judgment is totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.

So also in the present case merely because another view of the matter is possible, it would not be proper to set-aside the

608

judgment of acquittal. In this view of the matter, I do not find any illegality or perversity in the impugned judgment of acquittal passed by the learned Trial Court, therefore, the application is, hereby, dismissed.

In this light, I do not find any merits in the application and hence leave to appeal is, hereby, rejected. Application is dismissed as being sans merits.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.1781/2011

02.05.2011.

Shri R.L.Patidar, learned Counsel for the petitioner. Heard.

By this petition under Section 482 of the Cr.P.C., the petitioner has prayed for setting-aside the order dated 20.12.2010 passed by the Sessions Judge Mandsaur, in Criminal Case No. 159/2010 dismissing the application under Section 5 of the Limitation Act.

609

Counsel for the petitioner has vehemently stated the fact that the petitioner Shyamdas was unaware of the order granting maintenance passed by the Judicial Magistrate Class-I Narayangarh, on 2.6.2009 awarding a sum of Rs. 3,000/- to Guddibai the daughter of present respondent Vanda Bairagi. Stating that only when the execution proceedings were initiated, the petitioner learnt of the order passed by the Trial Court. His Counsel had failed to give him the information and, hence, the application was moved under Section 5 of the Limitation Act. Counsel stated that without application of mind, the Lower Court has dismissed his application.

Counsel stated that in the interest of justice, the matter be remanded to the Revisional Court whereby the Revisional Court has also upheld the order passed by the Trial Court.

On perusing the impugned order, I find, that condonation of delay is a discretionary matter and the delay occasioned in filing the application under Section 5 of the Limitation Act is more than 11 months and the Trial Court was not satisfied with the reasons offered and the Revisional Court has also chosen not to interfere primarily

610

on the ground that the petitioner appeared only in the Executing Court on 18.5.2010 and has not satisfactorily explained the non-appearance by the petitioner. His bonafides are in doubt, the petitioner seems to have lost the sympathy of the Court despite the statement that the petitioner is a physically handicapped person. I find that the petition cannot be allowed since the order passed is based on discretion which has been judicially exercised. Moreover, the bonafides of the petitioner being in doubt, his behaviour is not conducive to sympathy. Unwarranted sympathy causes prejudice to the other side and an old father of 65 is seeking maintenance for his daughter. At this juncture,Counsel for petitioner states that the marriage was void since it had taken place when the girl was a minor. In this light, also it appears as if the petitioner is not remedy less. It would be futile to interfere at this stage.

The application being without merit is dismissed as such in limine without notice to the other side.

(MRS. S.R.WAGHMARE)

JUDGE

611

M.Jilla. Cr.A.No.323/2011

29.04.2011.

Shri Z.S.Qureshi, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 2414/2011 which is an application for modification of the order dated 16.3.2011. Counsel states by the order, this Court had directed suspension of sentence and grant of bail to all the accused appellants however, in the operative portion of the order there is a typing error and it has been typed as accused appellant in the place of accused appellants and the order has been passed in the singular. Counsel prays for proper modification since the application for suspension had been moved on behalf of all the accused appellants i.e. Mewasingh, Ganpat and Shayamlal.

612

In view of the above, on considering the order and the impugned judgment, I find that the application needs to be allowed in the interest of justice. The error is apparent on the face of record. The said operative para shall now read as follows:-

It is directed that the accused/appellants shall be released on bail subject to their having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) each with one surety in the like amount to the satisfaction of the Trial Court for their appearance before this Court/Registry on 16.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf.

In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. With the following directions, the application is allowed. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

613

Cr.A.No.379/2011

29.04.2011.

Shri Sanjay Sharma, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 1784/2011 which is an application for suspension of sentence of the accused. Counsel states that short sentence of 3 years and fine of Rs. 25,000/-has been imposed for offence under Section 8/18 of the NDPS Act. The appellant has already paid the fine and the sentence has been directed to be suspended for a period of 2 months by the Trial Court itself. Moreover, Counsel states that if at all it is a first offence by the appellant, Counsel prays for grant of suspension of sentence.

Counsel for the respondent/State on the other hand, has candidly admitted that the contraband of 2 kg of Opium has been recovered from the appellant and the sentence has been suspended by the Trial Court up to 29.4.2011.

In this light, I find that the application needs to be

614

allowed as hearing of the appeal is likely to take long time. The time is to expire on 29.4.2011.

Considering the above submissions, I find that the application needs to be allowed in the interest of justice. It is directed that the accused/appellant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 16.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf.

In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS.S.R.WAGHMARE)

JUDGE

M.Jilla.

615

M.Cr.C.No.1573/2011

29.04.2011.

Shri Suraj Sharma, learned Counsel for the applicant. Heard.

By this application under Section 378(3) of the Cr.P.C. the State is aggrieved by judgment dated 25.11.2010 passed by the Judicial Magistrate Class-I in Criminal Case No.209/2008 dated 5.8.2008 acquitting the accused respondents from offence under Section 148, 332/149,435/149 and 427/149 of the IPC.

Counsel for the State has vehemently urged the fact that there was ample evidence on record for convicting the respondents despite which, the learned Judge of the Lower Court has acquitted the accused from the aforesaid offences. Stating that the evidence of Narendra Gome the scribe of the FIR as well as the complainant was very much reliable and there was no need to doubt his statements. Counsel prayed that the impugned judgment was contrary to provisions of law and prayed that leave be granted to file appeal. On perusing the impugned judgment, I find, that the incident arose out of the fact that at Police Station Bagli, dissatisfied mob of persons had approached the Police Station

616

due to the accident that had taken place and a young boy called Mohan Jamle had died in the accident and the mob was excited by the apathy shown by the Police and, hence, they had forced themselves into the Police Station and damaged its property. They had even caused damage to the government vehicle 'Tata'

407 MP-03 1548, two motorcycles, one luna, one Indica Car, the computers, wireless sets and telephones that were available in the Police Station. They were damaged, broken and later set afire and, hence, Narendra Gome the Sub-Inspector stationed at Police Station Bagli, had filed the FIR.

The Trial Court on considering the evidence however, found that none of the witnesses from the spot had supported the complainant. There was no other evidence on record to implicate the accused respondents. Moreover, they were named in the FIR by Shri Narendra Gome on instructions of the Staff workers at the Police Station and the common intention was also not proved by the prosecution. None of the witnesses have stated that the accused persons had come fully armed to the Police Station or there was any intention to set the Police Station afire and damage property. Since the offence under Section 148 of the IPC could not be established against the accused persons, the Trial Court also acquitted the accused from offence under Section 149 IPC. Besides, there was no

617

concrete evidence regarding offence under Section 435 as well as 332 IPC and hence the Trial Court has rightly acquitted all the accused from the said offences.

In the light of these facts and on perusing the impugned judgment, I find that the judgment is based on proper appreciation and marshalling of evidence and the Apex Court had time and again cautioned that the High Court would not be justified in interfering with the judgment of acquittal passed by the Trial Court unless, the judgment is totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.

So also in the present case merely because another view of the matter is possible, it would not be proper to set-aside the judgment of acquittal. In this view of the matter, I do not find any illegality or perversity in the impugned judgment of acquittal passed by the learned Trial Court, therefore, the application is, hereby, dismissed.

In this light, I do not find any merits in the application and hence leave to appeal is, hereby, rejected. Application is dismissed as being sans merits.

C.C. as per rules.

618

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.1633/2011

29.04.2011.

Shri Suraj Sharma, learned Counsel for the applicant/State.

Heard.

Order.

This is an application moved under Section 378(3) of the Cr.P.C. for grant of leave to file appeal. Briefly stated the prosecution case was that the deceased Tetibai was married to Sadu the son of the present accused appellant 10 years prior to the incident and on 17.4.2009 the accused Eda along with his son Sadu and brother Ganpat had gone to Bhagoria Gawda to attend Bagoria festival for the marriage of son of Ganpat. At the house Eda his wife Khimli, daughter Kali and Rekha and daughter-in-law Tetibai were there. Tetibai had taken the goats in the jungle for grazing. By evening however, the goats returned without Tetibai and hence the search for her was started. Tad (Eda's daughter) went in

619

search of his wife and found her in the fields and found her in field near the well that Tetibai had died due to consuming some poison. And on return, Eda and his son Sadu learnt of the incident and went along with Jamsingh to recover the body of Tetabai. They found a bottle of poison near her dead body and reported the matter at Police Station Sondawa, at 14.05 pm. The First Information Report was registered by Police Station Sondawa, by Shri M.S.Chauhan PW-6. The merg was however, registered at No. 15/2009 and the investigation was carried out by the Head Constable Illmuddin Sheikh who visited the spot of the occurrence and recovered the dead body. He also prepared the Panchnama Ex.P/8 and the safina form and the spot map Ex.P/10 and the bottle of poison was recovered vide recovery seizure memo Ex.P/11. The dead body was sent for post mortem to the District Hospital Alirajpur. The statements of the witnesses were recorded and the visera was sent for the FSL. Dr. N.S.Dawar PW-12 who performed the post mortem on 18.4.2009 stated that no fixed opinion could be given regarding the cause of death. According to the post mortem report Ex.P/2 the FSL dated 3.9.2009 indicated that the death was by poisioning and accused Eda was arrested and charged with offence under Section 306 of the IPC. The Trial Court on considering the evidence did not find

620

any evidence to establish the said offence against the accused and acquitted him from the same and, hence, the present application for leave to appeal.

Counsel for the State has vehemently urged that there was ample evidence on record to support the prosecution case despite which, the learned Judge of the Lower Court had acquitted the accused Eda. He prayed that leave be granted to file appeal. He urged that the medical evidence on record clearly indicated that death had occurred by poisioning and that the statement of Bhadu PW-1 the father of the deceased, Chunabai the mother of the deceased was quite reliable and corroborated by PW-4 Radhibai; then, under the circumstances, leave be granted since the State had every chance of success in the appeal.

On perusing the impugned judgment, however, I find that the acquittal is based on the primary fact that Dr. N.S.Dawar PW-12 has categorically stated that he would not be able to give any fixed opinion regarding the cause of death. The FSL report indicated that death had occurred due to Organophosporus compound. It could not however, be established that it was the accused Eda who had abetted the suicide since there was no one present at the place of occurrence on that day and Eda had admittedly gone to the

621

festival of Bhagoria. The demand for dowry as alleged by the parents of the deceased Tetibai also seems to be an after thought; for the offence, itself was registered after a period of 5 months as observed by the learned Trial Judge in impugned para 19 of the judgment. Moreover, the parents had taken over the bullocks and other property given in marriage immediately after the death but did not file any report regarding any demand for dowry or cruelty meted out to the deceased Tetibai. In the light of these facts and on perusing the impugned judgment, I find that the judgment is based on proper appreciation and marshalling of evidence and the Apex Court had time and again cautioned that the High Court would not be justified in interfering with the judgment of acquittal passed by the Trial Court unless, the judgment is totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.

So also in the present case merely because another view of the matter is possible, it would not be proper to set-aside the judgment of acquittal. In this view of the matter, I do not find any illegality or perversity in the impugned judgment of acquittal passed by the learned Trial Court, therefore, the application is, hereby, dismissed.

622

In this light, I do not find any merits in the application and hence leave to appeal is, hereby, rejected. Application is dismissed as being sans merits.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.355/2011

27.04.2011.

Shri Vivek Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 1682/2011 which is an application for suspension of sentence regarding Sangitabai, Sitabai and Shyamubai.

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Counsel for the appellant contended that although there are allegations of Shyamubai wielding Darati this fact has not been corroborated by any of the eye-witnesses. Moreover, all the three appellants are ladies and have been falsely implicated in the matter. Their presence at the place of occurrence is also doubtful. If at all, their conviction is based on the omnibus statements of witnesses regarding common intention and Counsel prayed that the entire family was suffering due to their arrest. Prayed for grant of suspension of sentence and bail. Counsel for the respondent/State on the other hand, has fully supported the impugned judgment and stated that the appellants have been implicated with the aid of Section 149 of the IPC and overt act cannot be seen under the circumstances, prayed for dismissal of the application.

Considering the above fact that the appellants are all ladies, I find that the application needs to be allowed. It is directed that the accused/appellant No.3,5 and 6 shall be released on bail subject to their having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) each with one surety in the like amount to the satisfaction of the Trial Court for their appearance before this Court/Registry on 20.5.2011 and on all subsequent dates as

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may be fixed by the Registry in this behalf. In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.327/2011

27.04.2011.

Shri Harish Kumar, learned Counsel for the applicant.

Shri G.S.Chauhan, learned Counsel for the respondent/State.

Heard on IA No. 1892/2011 which is an application for suspension of sentence.

Counsel states that short sentence has been imposed and he has full chance of success in the revision. Moreover, the hearing of the revision is likely to take some time. He prays for grant of suspension and the applicant was on bail during trial and has not misused the liberty granted to him.

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Counsel for the respondent/State on the other hand, has opposed the submissions and prayed for dismissal of the application.

Considering the above submissions, the evidence on record and the impugned judgment I find, that the application needs to be allowed. It is, hereby, allowed. The sentence shall remain suspended during the pendency of the revision.

It is directed that the accused/applicant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 20.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf. In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the revision.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

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M.Jilla. M.Cr.C.No.5686/2010

26.04.2011.

Shri R.S.Chhabra, learned Counsel for the applicant. Shri Swapnil Sharma, learned Counsel for respondent No.1.

None appears on behalf of respondent No.2 and this Court had already directed that at the risk of the applicant, the matter may proceed since the respondent No.2 despite not being served. Keeping this order in mind, the matter is taken up for hearing on consent.

The brief facts of the case are that respondent No.1 complainant Shri K.G.Sharma filed complaint under Section 138 of the Negotiable Instruments Act before the JMFC Indore, against accused respondent No.2 M/s Aman Jewellers through its Proprietor Aman Verma and the present petitioner M/s Muthoot Finance Limited through its Branch Manager Mr. L.S. Thakur as accused No. 2.

By the complaint, the complainant alleged that Rs. 20 lacs were borrowed as a loan by M/s Aman Jewellers from Shri K.G. Sharma. The money was paid by the complainant Shri

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K.G. Sharma vide a Demant Draft bearing No. 148921 dated 9.9.2009. Allegedly the said amount of Rs. 20 lacs was invested by M/s Aman Jewellers with M/s Muthoot Finance Limited by purchasing equivalent amount of gold which is in the custody of the M/s Muthoot Finance Limited. This position is undisputed. For the return of the said amount on demand, the respondent Aman Jewellers issued post dated cheques drawn on Karnataka Bank New-Delhi as detailed in the petition. On presentation of the said cheques by the complainant, the cheques were dishonored and the reason stated was to be insufficiency of funds.

A legal notice was thereupon sent by the complainant Shri Sharma to respondent No.2 Mr. Aman of Aman Jewellers and he seems to have orally represented to the complainant that Rs. 20 lacs were invested in gold with the present applicant and would be returned to him whenever needed. It is alleged by the Counsel for the complainant that the respondent No.2 failed to answer to the notice issued by respondent No.1 on 11.6.2010 and under the circumstances, the complainant was constrained to call upon the applicant M/s Muthoot Finance Limited not to sell or transfer the gold.

Counsel for the petitioner was aggrieved by the fact that the complainant proceeded to file a private complaint

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under Section 138 of the Negotiable Instruments Act before the JMFC Indore, and also made the petitioner an accused in the said case as respondent No.2. Counsel urged that the respondent No.1 Shri Sharma was threatening the company to deliver the gold to them otherwise, action would be taken against the applicant petitioner. Counsel stated that unfortunately the Trial Court took cognizance of the complaint and has issued summons to the present applicant without applying its mind and which is a gross misuse of the process of law.

Counsel stated that a bare perusal of the complaint would indicate that no offence would be made out against M/s Muthoot Finance Limited as there was no averments in the complaint to that effect. He has taken this Court through the cause-title of the complaint which indicates that initially the complaint was filed only against M/s Aman Jewellers respondent No.2 and the Manager of M/s Muthoot Finance Limited has been added by hand as accused No.2 in the complaint before the JMFC Indore, clearly indicating that it was an after thought. Counsel stated that the applicant was in no way concerned with the offence under Section 138 as defined under the Negotiable Instruments Act and issuance of process mechanically by the JMFC Indore, amounts to nothing

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but an abuse of the process of law and he prayed that the complaint be quashed.

Counsel for the respondent No.1 Shri Sharma, however, on the other hand, has fully supported the order taking cognizance and stated that the complainant had been examined under Section 202 of the Cr.P.C. and had made specific averments against the present applicant /petitioner then there was no need to quash the complaint since apparently the money borrowed from respondent No.1 is invested by respondent No.2 M/s Aman Jewellers in the applicant Company by purchasing the said gold. This admission has also been made by the accused on telephone and in reply to the notice and under the circumstances, Counsel countered that a prima facie case existed against the applicant for offence under Section 138 of the Negotiable Instruments Act. The statements were also taken under Section 200 of the Cr.P.C. Moreover, Counsel also relied on S.K. Pharmaceuticals Ltd. Vs. Ved Prakash Gupta 2003 C.L.D.C. 10 and to bolster his submissions he also relied on Meenakshi Sundaram Textile Ltd and another vs. Gokulchand Rakhabchand 2002 (4) M.P.L.J. 377. to state that prima facie the basic ingredients in the complaint as well as the statements recorded by the Trial Court under Section 200/202 of the Cr.P.C. for proceeding and

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trying the applciants for the said offences were present then, by this stance of process cannot be said that there was an abuse of process of Court and the petition under Section 482 of the Cr.P.C. had been dismissed.

Counsel stated that in the instance case also, the statement by the complainant clearly indicated the present applicant was implicated for offence under Section 138 of the Negotiable Instruments Act and he prayed that the application was without merit and prayed for dismissal of the petition. On considering the above submissions, I find that although the order taking cognizance has not been presented by both the applicant as well as the respondents, the summons issued to the accused M/s Muthoot Finance Limited indicates that the attendance of the petitioner was necessary to answer the charge under Section 138 of the Negotiable Instruments Act then, under the present circumstances as averred by the Counsel for the applicant/petitioner, the applicant Company is no where involved in the execution of the cheque and the money was (invested) handed over to the Company for purchase of gold which is not disputed by the Company. Under the circumstances, offence under Section 138 of the Negotiable Instruments Act would basically lie against the drawer of the cheque who maintains an account with the Bank and has issued

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the cheque to the complainant. Counsel for the applicant has taken this Court through the complaint also and there is not a whisper about the applicant Company having in any way participated in the transaction between respondent No.2 M/s Aman Jewellers and the complainant Shri Sharma.

In this light, I find that issuing process for offence under Section 138 of the Negotiable Instruments Act against the petitioner/applicant by the learned JMFC Indore, is without application of mind since offence under Section 138 of the Negotiable Instruments Act prima facie does not seem to be made out against the present applicant.

At this juncture, Counsel for the respondent/complainant has raised an objection that he is only concerned with the fraud played upon him by the respondent No.2 M/s Aman Jewellers and the gold purchased with him money is lying with the applicant Company as security of the transaction. In this light, I find, that if at all the complainant Shri Sharma is aggrieved, complaint under Section 138 of the Negotiable Instruments Act against the applicant would not be the answer. He is free to take recourse to other provisions of law to secure the gold. I do not find from the documents filed before me and submissions made by both the Counsels that

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cognizance has been taken by the Court below for offence under Section 420 of the Cr.P.C. as alleged. In this light of the matter, the respondent No.1 complainant Shri Sharma is free to take action. So far as the complaint pertaining to offence under Section 138 of the Negotiable Instruments Act against the present applicant M/s Muthoot Finance Limited is concerned, it is, hereby, quashed and consequently the summons and process issued by the Court against M/s Muthoot Finance Limited vide Annexure P/6 is also quashed. It is made clear that the complaint has been quashed against the petitioner Company only and not against the accused Aman Jewellers.

The petition is allowed only to the extent hereinabove indicated.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.95/2011

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25.04.2011.

Shri Basant Sitole, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 531/2011 which is an application for suspension of sentence regarding accused-appellant Murli.

Counsel for the appellant states that it was a case of false implication. There was no eye-witness and the statement of the prosecutrix in Court is full of discrepancies and contradictions. Moreover, even if the medical evidence on record is considered, Counsel stated that the offence under Section 376 of the IPC is not made out against the present appellant.

Counsel for the respondent/State on the other hand, has taken me through impugned para 14 of the judgment which clearly indicates that the medical opinion of Dr. K.L. Mehra PW-1 indicates that on consideration of the reports of the prosecutrix as well as the accused, the possibility of the rape having occurred cannot be ruled out. Moreover, Counsel also states that the prosecutrix is a

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married lady and would not have made the allegations even if there was no eye-witness to the incident. On considering the above submissions, I do not find it is a fit case for grant of suspension of sentence considering the medical evidence on record. In this view of the above, the application is dismissed as being without merit.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.1223/2010

20.04.2011.

Shri M.S.Chauhan, learned Counsel for the applicants.

Shri G.S.Chauhan, learned Counsel for the respondent/State.

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Shri D.K.Pargil, learned Counsel for the complainant.

By this revision petition under Section 397 read with Section 401 of the Cr.P.C. the applicants have challenged order dated 30.9.2010 passed by the 1^stAdditional Sessions Judge Dewas, in S.T. No. 26/2010 closing the right to defend of the accused-applicants. Brief facts of the case are that complainant Shahid was working in the medical shop of Rajesh Jaiswal. When on 8.10.2009 Rajesh Jaiswal had gone to the residence to return the spectacles to his daughter at his residence Radhaganj, on pressing the call bell, he found that sounds of Television running were heard but the door was closed from the outside. On opening the door, he found that his wife Anju Jaiswal was lying on the staircase and bleeding at the neck. Inside the room he found his son and daughter similarly soaked in blood. He telephoned the Police and on hearing his cries, the neighbours also rushed in. The other employees of the shop Pradeep, Dr. Sanjay Sharma arrived, it was found that all the three were murdered. Report was filed at the Police Station Kotwali by PW-2 Shahid. The offence was registered at 930/2009. On

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investigation, it was found that the accused persons had conspired to murder the deceased and the accused were committed to their trial for offence under Section 302,394,120-B and 201 of IPC and under Section 25 and 27 of the Arms Act.

The trial was conducted and evidence of several witnesses were recorded. However, by the impugned order leave to defend has been closed regarding the accused primarily on the ground that several opportunities were given to cross-examine the witnesses P.W.-2 Shahid, Rajesh PW-4, Brij Yadav PW-5 and Pradeep PW-6 and Dr. Sanjeev Sharma despite which the Counsel for the accused failed to cross-examine the said witnesses and the learned Judge of the Trial Court has passed the impugned order. Being aggrieved, the applicants have filed the present revision petition.

Counsel very candidly stated that although five occasions have been elaborately discussed by the Judge of the Lower Court however, if these occasions are considered and scrutinised in detail, it would be found that the Counsel for the accused-applicants is granted proper reasons for his absence. In fact the Counsel was contesting

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elections for the post of Bar President and has on two occasions failed to present himself before the Trial Court. Stating that murder a serious offence on three counts has been alleged against the present applicants and not much time has elapsed since the commencement of the trial, constitutionally also, the applicants would be entitled to grant of one adjournment again in the interest of justice. Counsel prayed that even if a single occasion is granted to the Counsel, he would see to it that the said witnesses would be cross-examined. Counsel prayed for setting-aside the impugned order.

Counsel for the respondent/State on the other hand, has opposed the submissions however, he has candidly admitted that the trial pertains to murder on three counts and principles of natural justice entail that a single opportunity may be granted to the applicants. Counsel for the complainant on the other hand, has opposed the submissions and stated that the applicants did not deserve any sympathy for they were involved in committing gruesome murder of two small children aged 7 and 13. He prayed for dismissal of the revision. On considering the above submissions, I find that

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there is no infirmity in the order passed by the learned 1st Additional Sessions Judge Dewas. However, since the accused also deserves a fair trial considering principles of natural justice and the personal grounds on which the Counsel for the applicant has not appeared, I find, that the application needs to be allowed. The impugned order is only set-aside to that extent.

It is directed that the Counsel shall be granted a single opportunity in the 2^ndweek of May, 2011. The date shall be set by the Trial Court. No further adjournment shall be granted to both the parties. The Trial Court to do the needful in the matter.

With the aforesaid observations, the revision petition is allowed.

In this light it would also be appropriate to observe that by way of imposition of cost it is directed that Rs. 500/- per witness is to be awarded to the said witnesses as travel and other ancillary expenses.

Cost shall be deposited by the applicants on the dates set by the Trial Court.

C.C. as per rules.

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(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.304/2011

21.04.2011.

Shri Vikas Yadav, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard finally.

This appeal has been filed by the appellant Ashok Patidar, being aggrieved by judgment dated 18.2.2011 passed by the Special Judge SC & ST (Prevention of Atrocities Act) Dewas, in Special Case No. 25/2010 convicting the accused for offence under Section 451 of the IPC and Section 354 of the IPC and sentencing him to one years RI on each count and fine of Rs. 1,000/- in each count. In case of failure to pay the fine, the appellant was to undergo 3 months RI each.

Counsel for the appellant has attacked the impugned

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judgment on the grounds that it is a case of false implication.

Brief facts necessary for elucidation are that, on the date of incident i.e. 28.12.2009 at 5.30 in the evening the prosecutrix filed a report at the Police Station Hatpiplia District Dewas, that she was a student of Class-Xth in Village Karnawad and on 26.12.2009 she was alone at home and cleaning the courtyard and her infant brother Tarachand was also playing outside when her neighbour accused Ashok came upon the place and asked what she was doing. He also made friendly overtures and caught hold of her hand and enticed her with the offer of money. Stating that he would give her Rs. 1 lac if she befriended him and if she refused, he would kill her parents. Prosecutrix struggled and freed her hand and called for help that the accused went away and threatened her not to tell her parents. When her mother returned home, the prosecutrix narrated the incident to her and thereafter to her father.

The report was however, filed after a period of two days. The report was filed rightly by the minor along with her parents and hence it was noted by the SDO(P) AJK

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Dewas, in writing and crime was registerd at No. 434/2009 of offence under Section 452,354,504, 506 of the IPC read with Section 3(i)(xi) of the SC & ST Act. The spot map was prepared and statements of the witnesses were recorded and on completion of investigation, the accused was arrested. The caste certificates were seized and the accused was produced before the Magistrate and thereafter duly committed to his trial.

The Trial Court on considering the evidence, however, convicted and sentenced the accused as hereinabove stated and hence, the present appeal. Counsel stated that the prosecution had misreably failed to establish its case. The FIR was delayed by 2 days and clearly a concocted document. Moreover, there was admittedly a dispute with the father of the prosecutrix regarding the money lent to him and he had failed to return the money and was therefore, falsely implicating the present accused. The testimony of the prosecutrix PW-1 is also not very reliable. Counsel stated that it is full of contradictions and omissions. The testimony of the mother Balibai PW-2 and the father Somaji PW-3 is hearsay. The medical testimony on record has not given any fixed

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opinion and the defence of the accused has not been considered according to the Counsel. Counsel prayed that the impugned judgment be set-aside.

Counsel for the respondent/State on the other hand, has fully supported the impugned judgment and stated that merely because the FIR is delayed was not a ground to throw out the prosecution case. Counsel stated that considering the incident it was only natural that the report by the parents would be hearsay. He however, fully supported the decision stating that conviction was based on the sole testimony of the prosecutrix which was quite reliable under the circumstances.

On considering the above submissions, I find that the appeal needs to be allowed primarily on the grounds that the learned Judge of the Lower Court has failed to consider that money had been borrowed by the father of the prosecutrix Somaji from the accused. It has been admitted by the mother also that for her operation, the money had been borrowed and not returned to the accused. There is no other witness on record regarding the incident to corroborate the testimony of the prosecutrix. Moreover, the delay in filing the FIR cannot be marginalised under

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the circumstances. The criminal force used by the accused is also based on very scanty evidence and the medical evidence on record has not supported the prosecutrix. In this view of the above, I find that the appeal needs to be allowed. The impugned judgment is set-aside. The accused is acquitted from the offences. He is on bail. His bail bonds are, hereby, discharged.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. 371/2011

21.04.2011.

Shri B.L.Yadav, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 1745/2011 which is an application for suspension of sentence.

Counsel states that prima facie allegations are against Jeetmal who is a minor and juvenile facing trial before the

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Juvenile Court. Even if the prosecution allegations are considered, Jeetmal had seen the accused No.2 Hemalatabai in a compromising position with the complainant Yusuf Khan and had inflicted injuries with the axe whereas there is no evidence on record to prove that the present accused appellants have participated in the assault. The weapons of assault have not been recovered from these three accused. In the circumstances, Counsel prayed for grant of suspension of sentence and bail. Counsel for the respondent/State on the other hand, has stated that Dr. Z.Iqbal PW-6 has noted as many as 7 incised wounds and all the accused are guilty as charged and do not require any sympathy and prayed for dismissal of the application.

On considering the above submissions, however, I find that there is substance in the arguments put forth by the Counsel for the appellants and the application needs to be allowed in the interest of justice. It is, hereby, allowed. It is directed that the accused/appellants shall be released on bail subject to their having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) each with one surety in the like amount to the satisfaction of the Trial Court for their appearance before this Court/Registry on 16.5.2011 and on all subsequent dates as

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may be fixed by the Registry in this behalf. In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.318/2011

20.04.2011.

Shri Ramesh Verma, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for respondent No.1/State.

This is an appeal filed under Section 449 of the Cr.P.C. being aggrieved by the order passed by this Hon'ble Court in Criminal Appeal No. 204/1999 for recalling the order dated 30.7.2003 directing that from the amount of Rs. 50,000/- of the surety bond Rs. 20,000/- be ordered to be recovered. Counsel stated that earlier the appellant had moved the application in the Criminal Appeal No. 204/1999 itself vide IA

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No. 299/2011 however, this Court had found that the order was appealable and hence, the appeal has been filed under Section 449 of the Cr.P.C. Counsel candidly stated that the execution proceedings have already commenced in the Trial Court. The respondent/State has upon verification stated that it was within the discretion of this Court under Section 449 of the Cr.P.C. to allow the application if it deemed it necessary. In this view of the above, the appellant had come before this Court and he is a 66 year old agriculturist and a poor person from Village Shampura Tehsil Jaora District Ratlam, and hence, in the interest of justice, the appeal is allowed. It is directed that instead of Rs. 50,000/- of the surety bond executed only Rs. 5,000/- be recovered from the present appellant.

A copy of this order be sent to the Trial Court for compliance.

With the aforesaid observations, the appeal is allowed to the extent hereinabove indicated.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

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M.Jilla. Cr.A.No.396/2011

20.04.2011.

Shri R.S.Parmar, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No.1869/2011 which is an application for suspension of sentence.

Counsel states that the appellant has been falsely implicated in the matter and he has full chance of success in the appeal. Moreover, the conviction is only for offence under Section 435/34 of the Cr.P.C. which is a bailable offence. Counsel prayed for grant of suspension as well as bail.

Counsel for the respondent/State on the other hand, has opposed the submissions. He however, candidly admitted that sentence was for only 4 years and the hearing of the appeal is likely to take some time. In this view of the above, the application for suspension is allowed.

The sentence of the accused shall remain suspended during the pendency of the appeal.

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In this view of the matter, the IA is allowed. It is directed that the accused/appellant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 16.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf. In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.354/2011

20.04.2011.

Shri V.S.Chauhan, learned Counsel for the applicant.

Shri G.S.Chauhan, learned Counsel for the respondent/State.

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Heard on adission. Admit.

At this juncture, Counsel prays for grant of suspension of sentence vide IA No. 2058/2011. Counsel states that by the impugned judgment, the accused has been convicted only for offence under Section 435 of the IPC which is a bailable offence and the short sentence of one year has been imposed. He states that as it is the applicant Bihari is more than 60 years of age and has not misused the liberty granted to him during the course of trial. Counsel prays for grant of suspension as well as bail. Counsel for the respondent/State on the other hand, has candidly admitted that offence under Section 435 IPC is bailable.

In this view of the above, the application is allowed. The sentence of the accused shall remain suspended during the pendency of this revision.In this view of the matter, the IA is allowed.

It is directed that the accused/applicant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to

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the satisfaction of the Trial Court for his appearance before this Court/Registry on 18.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf. In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the revision.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.366/2011

20.04.2011.

Shri Anil Ozha, learned Counsel for the applicant. Shri G.S.Chauhan, learned Counsel for the respondent No.2/State.

Counsel for the applicant states that Rs. 30,000/- have been deposited by the applicant before the Trial Court as directed by this Court on 11.4.2011. He prays that the stay granted earlier be confirmed.

On perusing the receipt, Counsel is directed to file a

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copy of the same before the Registry today and in consequence the IA No. 2081/2011 is confirmed.

The sentence of the accused shall remain suspended during the pendency of this revision.In this view of the matter, the IA is allowed.

It is directed that the accused/applicant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry on 16.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf.

In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the revision. Counsel is also directed to pay process regarding non- applicant No.1 Pankaj Porwal if not already paid. List after service of notice on non-applicant No.1. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla.

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Cr.A.No.535/2010

15.04.2011.

Shri Lokendra Singh Jhala, learned Counsel for the appellant.

Ms. Mamta Shandilya, learned Counsel for the respondent/State.

By this appeal, the accused appellant had challenged his conviction for ofence under Section 8/18 of the NDPS Act, 1985 passed by the Trial Court i.e. the Additional Special Judge NDPS Act Mandsaur, in Special Case No. 22/2008 convicting the accused for the said offence and sentencing him to 5 years RI with fine of Rs. 25,000/- in case of failure to pay the fine, the appellant was to undergo another 5 months simple imprisonment.

The prosecution case briefly stated is that on 22.3.2006 the Police Station at Pilpliamandi received information that a person in the description of the accused Ratanlal was traveling from Village Khanderia Maru with the psychotropic substance opium and travelling by bus was coming from Mandsaur towards Village Botalganj and he would alight at the big bridge at Dhariakhedi Fante and would hand over the smuggled goods to another person traveling with the contraband. The information was

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received by the Assistant Sub-Inspector D.C.Nirwan on telephone and taking instant action, he noted down the information in writing in the panchnama since there was no time to prepare the search warrant; therefore, under Section 42 of the NDPS Act he sent the information in writing to his superior officer the Superintendent of Police at Mandsaur through Constable Shavansingh and called two panch witnesses and informed them about the information. Following all due procedure they proceeded towards the place of occurrence and found a person in the description of the information received and he was carrying a cloth bag in his right hand. On being queried by D.C.Nirwan and having informed the accused of his rights as required under the Act, he consented to his personal search and from the cloth bag a yellow colour polythene bag was found which was tied by a cord and upon opening, it further contained a while polythene bag which was also closed by a string. This plastic bag contained a black coloured substance and it was tested and verified to be opium. On weighment, it was found to be 2.5 kg. The samples were prepared, duly sealed and the seizure memos prepared. The accused was arrested and the seized

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contraband was returned by the Head Constable and Moharir to the Malkhana. The article A-1 was sent for FSL and on verification found to be opium. All the procedure regarding search and seizure was duly followed. The accused was charged with the offence and duly committed to his trial. He abjured his guilt and stated that he was falsely implicated in the matter.

The Trial court on considering the evidence however, convicted and sentenced the accused as hereinabove indicated.

Counsel for the appelllant has candidly stated that he is not much aggrieved with the conviction for offence under Section 8/18 of the NDPS Act since the appellant has almost undergone the entire period of custodial sentence since, he was not on bail during the trial. However, Counsel states that out of the sentence for default of fine of Rs. 25,000/- the appellant has only undergone one month of simple improsonment and prayed that this sentence for default be reduced. Placing his reliance in the case of Shantilal vs. State of Madhya Pradesh : (2008) 1 SCC (Cri.) Counsel urged that the Apex Court has held that the term of imprisonment in default of

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payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. It further held that even in absence of specific provision in the Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a court administering criminal justice. And the Apex Court found that since the accused is a poor person and the fact that in the said case he was only a carrier and had to maintain his family and it was his first offence the Apex Court had reduced the sentence from three years to six months rigorous imprisonment to meet the ends of justice. Counsel prayed that similar benefit be extended to the accused.

Counsel for the respondent/State has also admitted that the appellant has undergone most of the custodial sentence except the sentence pertaining to the default of payment of fine and also admits that this Court in several matters reduced the custodial sentence in default of payment of fine.

Considering the above submissions, on perusal of the evidence on record and the impugned judgment, I place my reliance on Shantilal (supra), and although I upheld

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the sentence of the accused appellant Ratanlal for offence under Section 8/18 of the NDPS Act, the custodial sentence in default of payment of fine is reduced from 5 months to the period already undergone. The accused is in jail and he shall be released forthwith if not required in any other case under intimation in writing to this Court. Consequently with these directions, the appeal is allowed to the extent herein above indicated.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.R.No.434/2010

13.04.2011.

Ms. Shakti Sharma, learned Counsel for the applicant. Shri V.K.Varangaonkar, learned Counsel for the respondent.

Heard on IA No. 1856/2011 which is an application for making payment of maintenance awarded by the Trial Court. Counsel for the respondent protests that he has not been given a copy of the application.

Counsel for the applicant is directed to hand over a copy during the course of the day. However, on perusing the

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proceedings, I find that not a farthing has been paid to the applicant despite vacating of the stay granted by this Court on

7.4.2010.

In view of the above, it is directed that the respondent- husband shall deposit an amount of Rs. 50,000/- in the Trial Court within a period of three weeks from today, by way of part payment towards the amount awarded. Subject to which, list for final hearing in the week commencing 2.5.2011. Failure to pay the amount, this Court shall be constrained to issue non- bailable warrants of arrest against the respondent. List on 3.5.2011.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.236/2011

13.04.2011.

Ms. Swati Ukhale, learned Counsel for the appellant. Shri Tiwari, learned Counsel for the respondent/State. Heard on IA No. 1140/2011 which is an application for suspension of sentence regarding accused Trilok. Counsel for the appellant has vehemently stated that it is a case of false implication. The main accused Rajveer Singh has actually taken advantage of the ignorance of the appellant and was not an educated person and merely a carpenter. Counsel prayed that the suspension of sentence be granted stating that the appellant was on bail during trial and has not misused the liberty granted to him. Counsel prayed for grant of

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suspension of sentence as well as bail. Counsel for the respondent/State on the other hand, has opposed the submissions and stated that the appellant was fully implicated in the matter. The fraud has been played on a larger scale and the hand writing expert has clearly opined that the hand writing on the withdrawal form and signatures are of the appellant.

In this view of the matter, I find that there is no merit in the contentions of the appellant.

The application is, therefore, dismissed as being devoid of merit.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.254/2011

13.04.2011.

Shri Vivek Singh, learned Counsel for the appellants.

Shri Tiwari, learned Counsel for the respondent/State.

Heard on IA No. 1228/2011.

Counsel for the appellant states that it was a case of false implication. Even if the prosecution allegations are considered, the accused appellants said to have wielded lethal weapons like Farsi and lathi depiste which, no

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grievous injury was sustained on the head of both the injured witnesses Devilal as well as Badrilal. Counsel states that the appellants were on bail and have not misused the liberty granted to them. He prayed for grant of bail since the appeal is likely to take some time. Counsel for the respondent/State has however, opposed the submissions and stated that the appellants did not deserve any sympathy for grievous injuries were sustained by the injured witnesses. He prayed for dismissal of the application.

Considering the above submissions the evidence on record and the medical evidence, I find that it is a fit case for grant of bail. The application is allowed. It is directed that the accused/appellants shall be released on bail subject to their having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) each with one surety in the like amount to the satisfaction of the Trial Court for their appearance before this Court/Registry on 16.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf.

In the meanwhile, the substantive portion of the jail

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sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.163/2011

13.04.2011.

Shri Ashish Gupta, learned Counsel for the appellant.

Shri Tiwari, learned Counsel for the respondent/State.

By this appeal under Section 454 of the Cr.P.C., the appellant Raju S/o Velsingh Gudiya has challenged the judgment dated 20.11.2010 only to a limited extent that the Trial Court at the conclusion of the trial has directed that the Motorcycle 'Hero Honda' C-D Delux be confiscated after the duration for filing of the appeal expires and the same be sold and the money be deposited in the Treasury. The Counsel states that the appellant is the registered owner of the said vehicle and the accused has

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been acquitted of the offence under Section 395 and 397 of the IPC. Stating that the accused appellant had not been identified and all the accused have been in fact acquitted by the judgment dated 20.11.2010, Counsel stated that the learned Judge of the Lower Court had erred in confiscating the Motorcycle and prayed that the same be handed over to the appellant since he was its registered owner and since it was discretion of this Court to allow the Motorcycle to be returned to the appellant, Counsel prayed that the relief be granted to him. Moreover, the Motorcycle was lying the police custody at Raipuriya and was deterrioating everyday due to lack of proper care and maintenance. Counsel prayed that the appeal be allowed.

Counsel for the respondent/State on the other hand, has opposed the submissions and submitted that the Trial Court had rightly directed its confiscation and stated that no appeal has been filed against the acquittal. He however, opposes the grant of vehicle on 'supardagi'. I find that it is trite to state that since the vehicle is of use to the accused-appellant who has been acquitted by granting the benefit of doubt, it would be appropriate under the circumstances to hand over the vehicle to the

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appellant on 'supardagi'. However, by way of abundant caution since no statement has been made regarding filing of appeal against the acquittal, it is directed that the Trial Court shall take financial security to the value of the vehicle for its release on appropriate terms and conditions.

The appeal is partly allowed to the extent

hereinabove indicated.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. M.Cr.C.No.7803/2010

13.04.2011.

Shri Akash Rathi, learned Counsel for the applicant. Ms. Mamta Shandilya, learned Counsel for the respondent/State.

Shri R.S.Bisen, the then Investigating Officer present in person.

Shri Girish Subedar, CSP Pithampur District Dhar present in person.

Shri A.V.S. Chauhan, T.I. Kotwali Dhar, is also present

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in person. Counsel for the applicant has vehemently stated the fact that there has been no precise reply to the endorsement on the application supplied to under the RTI stating that the post mortem was videographed. I find that the endorsement has been made by the CMO.

Counsel is directed to make all the signaturies to the document a party to the application within a week from today. Counsel for the respondents at this juncture, states that the Officers on duty are unnecessarily put to trouble and they may be exempted from appearance in Court. Prayer being reasonable, it is accepted. It is however, directed that they shall be summoned when necessary.

Counsel for the applicant is granted a weeks time. List on 22.4.2011. The Officers need not attend on the next date of hearing.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.163/2003

11.04.2011.

Shri Harshwardhan Pathak, learned Counsel for the appellants.

Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 643/2011.

By this application, Counsel has prayed for permanent exemption from appearance before this Court/Registry stating that both the appellants are ladies. Appellant No.2 Dhanubai is more than 60 years of age. Counsel stated that the

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application be allowed since they were regularly marking their presence before the Court/Registry.

Counsel for the respondent/State on the other hand, has opposed the submissions and the appellant No.3 is a lady of 28 years and can easily attend the Court dates. At this juncture, Counsel states that exemption be granted to appellant No.2, and appellant No.3 shall mark her presence before the concerned Trial Court. Prayer accepted. Appellant No.2 looking to her old age is exempted from appearance before the Court/Registry.

It is directed that appellant No.3 Radhabai shall mark her presence on 26.4.2011 before the Trial Court and thereafter on the dates to be set by the Trial Court.

List for final hearing.

C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.155/2011

11.04.2011.

Shri B.L.Yadav, learned Counsel for the appellant. Shri Suraj Sharma, learned Counsel for the respondent/State.

Heard on IA No. 1849/2011 which is an application for suspension of sentence.

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Counsel states that it is a case of false implication. Even if the prosecution allegations are considered, Counsel stated that it was a case of consent. Moreover, the FIR is delayed by two days and there are no signs of external injury on the body of the prosecutrix. He placed his reliance on Premiya @ Prem Prakash vs. State of Rajasthan (2009) 1 Supreme Court Cases (Cri) 20 to state that absence injury on victim-Whether offence committed coming under purview of S. 354- Absence of injury on the private parts of the prosecutrix. At the most offence would be made out under Section 354 of the IPC. Counsel for the respondent/State has pointed out that there are slight abrasion on the right eye of the prosecutrix and there was no need to doubt the statement of the prosecutrix. He prayed for dismissal of the application. Considering the above submissions, I find that it is a fit case for grant of bail and suspension.

It is directed that the accused/appellant shall be released on bail subject to his having paid the fine and on furnishing a personal bond of Rs. 25,000/- (Rs. Twenty Five Thousand only) with one surety in the like amount to the satisfaction of the Trial Court for his appearance before this Court/Registry

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on 16.5.2011 and on all subsequent dates as may be fixed by the Registry in this behalf

In the meanwhile, the substantive portion of the jail sentence shall remain suspended till hearing of the appeal. C.C. as per rules.

(MRS. S.R.WAGHMARE)

JUDGE

M.Jilla. Cr.A.No.432/1996

06.04.2011.

Shri Vivek Singh, learned Counsel for the appellants. Shri Suraj Sharma, learned Counsel for the respondent/State.

Initially Shri Vivek Singh, states that accused appellant No.3 has died and appeal against him will abate. Considering the appeal on behalf of appellant No.1,2,4 and 5, the appeal is taken up for hearing. Judgment dictated in open Court.

By this appeal under Section 374 of the Cr.P.C, appellants have challenged their conviction by judgment dated 17.5.1996 passed by the Additional Sessions Judge Ujjain, in

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S.T. No. 66/1995 convicting the accused appellants for offence under Section 306 and 201 of the IPC and appellants No.2,3,4 and 5 were convicted only for offence under Section 201 of the IPC whereas appellant No.1 was also convicted for offence under Section 306 as well as 201 of the IPC of which accused appellants were to undergo six months RI each for offence under Section 201 and payment of fine of Rs. 500/- each in default of payment, they were to undergo an additional sentence of one months RI. Accused No.1 Bahadursingh was to undergo sentence of seven years RI and fine of Rs. 1,000/- for offence under Section 306 of the IPC. In case of default, he was to undergo an additional one years RI.

Brief facts of the prosecution case are that, complainant Ratanlal aged 40 years resident of village Piplia Rao got his daughter Seema married five years prior to the incident to accused Bahadur Singh S/o Bheru Singh. Initially the in-laws treated her properly however, her husband and father-in-law used to doubt her character and used to even beat her. On 20.9.1994 accused called the complainant Ratanlal to his house and complained to him that Seema was not carrying out her house hold duties and upon enquiry, Seema informed her father that her in-laws used to torture her. Ratanlal tried to pacify the dispute. Her grand mother who had accompanied Ratanlal also

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explained to Seema and they left on 25.9.1994. Anokhilal informed the complainant that his daughter had taken ill and hence the complainant again went to Kathbaroda and found that his daughter had committed suicide by swallowing some poison and without informing him her in-laws had even completed the funeral by burning and they had informed the villagers that Seema had died due to snake bite. The father Ratanlal filed report at the Police Station vide Ex.P/7. The merg was registered and the FIR was filed on the next day and offence was registered at No.72/1994 for offence under Section 306 and 201 of the IPC. Investigation was launched. The statements of witnesses were recorded and it was found that accused Bahadursingh and Bherusingh used to doubt her character and even beat Seema and as a result of which, she had committed suicide. On statements of accused Radhakishan under Section 27 of the Evidence Act, a bottle of pesticide Endosulphas was recovered and a glass by which the deceased had swallowed the poison was recovered and the ashes of the deceased were also seized and sent to the FSL Sagar. On completion of investigation, the accused were arrested and charged and thereafter committed to their trial. The accused abjured their guilt and stated that they were falsely implicated in the matter.

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The Trial Court on considering the facts convicted and sentenced the accused as hereinabove indicated and hence, the present appeal.

Counsel for the appellants has vehemently stressed the fact that merely because the parents of the deceased were not informed there was no reason for the Trial Court to have convicted the accused. Moreover, the deceased had also been admitted to Hospital and treated properly. Counsel stated that all the witnesses of the prosecution were interested witnesses since they were relatives of deceased Seema and there is no evidence on record to indicate that deceased Seema was being treated with cruelty. The independent witness Onkarnath PW-1, PW-2 Dinesh and PW-4 Mohan have not at all supported the prosecution case regarding the allegations of cruelty stating that domestic quarrels even took place in a joint family and cannot be construed to be cruelty or instigation as prescribed under Section 306 of the IPC. Counsel also urged the fact that almost 5 years of marriage and there were no police reports or any other evidence to establish the fact that the accused appellants were treating her with cruelty. Counsel also urged that from the evidence of PW-6 Lakhan it was found that the father of complainant Ratanlal had arrived in time for the funeral and had not protested even. The entire

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prosecution was an after thought. Counsel prayed that the impugned judgment be set-aside and the accused appellants be acquitted of the offence.

Counsel for the respondent/State on the other hand, has fully opposed the submissions and supported the judgment of the Trial Court stating that the deceased Seema had consumed poison within five years of marriage and was constantly treated with cruelty by the husband and father-in-law who continuously doubted her character and in these circumstances, the accused did not deserve any sympathy. He prayed for dismissal of the appeal.

On considering the above submissions, I find that undoubtedly acts of cruelty in a matrimonial case are always difficult to prove and in the instant case the independent witnesses PW-1 Onkarnath, PW-4 Mohan and PW-5 Narayan have not supported the prosecution allegations regarding the facts of physical assault or cruelty. However, Onkarnath, PW-1 and PW-4 Mohan have clearly indicated that death of Seema was due to swallowing of some poisonous substance and they had seen foam coming out of the mouth of the deceased and there were indications of her having vomitted also. Even PW-3 Tejubai the wife of Bherusingh that is the mother-in-law has admitted that her daughter-in-law Seema had started

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vomitting when she was sleeping near the door then under the circumstances, the unnatural death is undoubtedly proved and it is trite to state that interested witnesses should not be disbelieved merely because they are the relations of the deceased. Specially in matrimonial cases if their testimony is found to be lucid clear and without hesitation then it will be accepted. The haste in which the funeral was conducted all indicated that the accused persons had tried to sweep certain facts under the carpet. The testimony of the father Ratanlal is of cardinal importance since he has categorically stated that 5 days prior to the death he had been called by the in-laws to take his daughter away and he had tried to pecify both the parties. At the same time, there is no evidence on record to indicate any ground or possibility expressed by deceased Seema to her father that she would commit suicide if not given protection. So also the police report does not contain any allegations regarding the cruelty except the fact that the father- in-law and the accused Bahadursingh her husband used to doubt her moral character. The important fact which cannot be marginalised is that the accused Bahadursingh husband of the deceased was 20 years of age at the time of the incident and more than 15 years has elapsed then under the circumstances, although I uphold the conviction of all the accused it would be

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just and fair under the circumstances to place reliance on

Mohd Hoshan A.P. v. State of A.P. S.C.(2003) 1 MPWN Short Note 10 whereby under similar circumstances for offence under Section 498-A and 306 of the IPC whereby the deceased had committed suicide within 11 months after marriage the Apex Court had modified the sentence to the period already undergone. The alternate prayer of the Counsel for the appellant is accepted and the custodial sentence is set-aside. The appeal is partly allowed to the extent that conviction of the accused for offence under Section 306 and 201 of the IPC is upheld; the custodial sentence however, is reduced to the period already undergone.