Manish Singh, aged about 34 Years, Accused (In Jail) S/o Mr. Suresh Singh Kushwaha, Occupation – Business, R/O 140, Rachana Nagar, Police Station – Govindpura, Bhopal , (Madhya Pradesh)

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO.                OF 2017

APPLICANT/            :       Manish Singh, aged about 34 Years,

Accused (In Jail)                 S/o Mr. Suresh Singh Kushwaha, Occupation – Business, R/O 140, Rachana Nagar, Police Station – Govindpura, Bhopal , (Madhya Pradesh)

VERSUS

NON-APPLICANT/           :       THE STATE OF MADHYA PRADESH

Prosecution                        Police Station Govindpura, Bhopal, (MADHYA PRADESH)

Conviction		Sentence
Section	Act	Imprisonment	Fine If deposited, details	Imprisonment in lieu of Fine
Section 325	Indian Penal Code, 1860 (No. 45 of 1860).	R. I. for 1 Year.	Fine amount of Rs. 1000/-deposited Vide Receipt No ___ Book No. ____ before the Court below on   ________.	R. I. for 1 month.
Section 323	Indian Penal Code, 1860 (No. 45 of 1860).	Imprisonment till the rising of the Court	Fine amount of Rs. 500/-deposited Vide Receipt No __ Book No. _____ before the Court below on   ______.	R. I. for 15 days

CRIMINAL REVISION UNDER SECTION 397/ 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 (NO. 2 OF 1974)

Being aggrieved by the Judgement of Conviction and Order of sentence dated 07.09.2017 passed by the Court of XVIth Additional Session Judge, Mr. Girish Dixit, Bhopal in the matter of the Manish Singh V/s The State of Madhya Pradesh in the file of Criminal Appeal No. 9600954 of 2015, arising out of the Judgement of Conviction and Order of sentence dated 11.08.2015 passed by Judicial Magistrate First Class, Mr. Devesh Upadhyay, Bhopal in the matter of The State of Madhya Pradesh V/s Manish Singh in the file of Regular Criminal Trial No. 1695 of 2013, the applicant/ accused named above most humbly and respectfully begs to this first revision petition on following facts and grounds almagest the others :

Material Facts of the Case :

1.   This is the first revision petition against the impugned Order before this Hon’ble High Court. Applicant has not filed any other revision petition against the impugned Order before any Court of Law.

2.   The point involved in this revisions petition is that : It must focus its attention on whether there are discrepancies in the evidence; whether the evidence strikes the court as genuine, and whether the story as narrated is probable. Judicial approach has to be cautious in dealing with such evidence. The circumstances surrounding the presence of the witness at the time of the occurrence are purely fortuitous coupled with the fact that he is a partisan witness and hence the evidence will have to be examined with great care and caution.

3.   A First Information Report (Exhibit P-7) was registered at Police Station – Govindpura, District – Bhopal (Madhya Pradesh) as to commission of offences punishable under Section 325 and 323 of the Indian Penal Code, 1860 (No. 45 of 1860) against the applicant / accused vide Crime No. 105/2013 on dated 23.01.2013. The case of prosecution is that there was some dispute as payment of salary of the complainant with accused. At the instance of the accused, complainant alongwith fellow workers approached the accused on 23.01.2013 at 7 PM to resolve the dispute, then the untoward incident took place. Police investigated the matter and filed the challan before the competent Court of Law.

4.   It is humbly submitted that the accused did not dispute the incident but contended that the facts and circumstances of the case clearly indicate that the intention of the accused was not to cause any such bodily injury to the Complainant, Ritesh which might result in fracture. It is also submitted that there was no premeditation on the part of the accused to commit the offence and the occurrence had taken place at the spur of the moment on a petty point i.e. complainant refusing to provide sufficient time to the accused.

5.   The trial Court found accused guilty and directed to undergo the sentences as detailed above. Copy of the Judgement of Conviction and Order of sentence dated 11.08.2015 passed by Judicial Magistrate First Class, Mr. Devesh Upadhyay, Bhopal in the matter of The State of Madhya Pradesh V/s Manish Singh in the file of Regular Criminal Trial No. 1695 of 2013 is filed herewith and marked as Annexure A-1.

6.   Being dissatisfied by his conviction and sentence, the accused had preferred a criminal appeal on 09.09.2015 under the provisions of section 374 of the Code of Criminal Procedure, 1973 (No. 2 of 1974) before the Court below. The Court below going into the merit of the case, mechanically upheld the Judgment of the Trial court. Certified Copy of the Judgement of Conviction and Order of sentence dated 07.09.2017 passed by the Court of XVIth Additional Session Judge, Mr. Girish Dixit, Bhopal in the matter of the Manish Singh V/s The State of Madhya Pradesh in the file of Criminal Appeal No. 9600954 of 2015 is filed herewith and marked as Annexure A-2. Hence this first criminal revision petition on following amongst the others :

GROUNDS URGED

A.   For that, accused did not dispute the incident but contended that the facts and circumstances of the case clearly indicate that the intention of the accused was not to cause any such bodily injury to the Complainant, Ritesh which might result in fracture. It is also submitted that there was no premeditation on the part of the accused to commit the offence and the occurrence had taken place at the spur of the moment on a petty point i.e. complainant refusing to provide sufficient time to the accused.

B.   For that, From the statement of the Doctor, it can’t be deducted that the condition of Ritesh was not serious or critical when he was taken to the hospital nor did if deteriorate till the date of his discharge. Doctor Banthia has However considered the bone injury to be the main cause of injury, Had not, the opinion of Doctor Banthia would be the only material before the Court and it could have been given weight but when the opinion expressed by the Board, if available, is taken in view, there is some difficulty in taking the opinion of Doctor Banthia as final.

C.   For that, The facts and circumstances of the case on hand as discussed above clearly indicate that there was no previous enmity between the appellant and Rtiesh, The quarrel according to the prosecution had taken place on a trivial point i.e. the appellant demanding 'time for payment' and the complainant refusing to given the same. Other collegues of the complainant, who were at a little distances could not throw any light upon as to what had actually happened at the start of the quarrel. All that be could say was that therefore not altercation between the assailant and the victim.

D.  For that, There is only one grievous injury as is evident from the record. The Doctor could not say with certainty that the fracture could have caused the grivious injury. He has stated that the opinion was based on the possibility. Upon considering his statement as a whole, it can be, inferred that the fracture injury could not positively be said to be the cause of grivious injury. The reason as stated earlier is obvious. In such circumstances, all that can be said is that the accused at the spur of the moment lost his balance of mind and as such his intention could not be more than causing simple injury which may be likely to cause grivious.

E.   For that, The next point emerging for determination is as to what would be adequate punishment to be awarded to the accused. The circumstances of the case reveal that there was no pre-meditation or previous enmity leading the crime. The appellant was 32 years of age when the offence was committed. He had remained in jail for a period of considerable time. it would not be just and proper to send the accused behind the bars after a lapse of so many years when he might have established bis life. The ends of justice would meet if he is sentenced to the period he had already remained in custody to far along with the sentence of fine.

F.   For that, Legal provisions regarding Punishment for voluntarily causing grievous hurt under section 325 of Indian Penal Code, 1860.

Punishment for voluntarily causing grievous hurt:

According to Section 325 of the Indian Penal Code, “Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

It is an essential ingredient of the offence under Section 325 that either grievous hurt should be intended to be caused or the offender should have knowledge that the hurt caused was likely to be grievous. The points requiring proof of voluntarily causing grievous hurt are:

1) That the accused caused hurt.

2) That the hurt caused was ‘grievous’

3) That he intended, or knew that he was likely to cause grievous hurt.

It becomes necessary to examine a medical witness to ascertain whether the injuries are any of those specified in Section 326. It is not the business of the medical officer to classify a hurt as grievous or simple; his duty is merely to describe facts, upon which it is the duty of the Magistrate to find whether the hurt is grievous or otherwise. The bare certificate of a medical officer is not evidence; he must be examined in the presence of the accused, who has the right to cross- examine him.

This offence is cognizable, but summons should ordinarily issue in the first instance. It is bailable but is compoundable only with the leave of the court. It is triable by any Magistrate.

G.  For that, It must focus its attention on whether there are discrepancies in the evidence; whether the evidence strikes the court as genuine, and whether the story as narrated is probable. Judicial approach has to be cautious in dealing with such evidence. The circumstances surrounding the presence of the witness at the time of the occurrence are purely fortuitous coupled with the fact that he is a partisan witness and hence the evidence will have to be examined with great care and caution as held by the Apex Court in the case of Ravulappalli Kondaiah And Ors. vs State Of Andhra Pradesh on 20 November, 1974 reported in AIR 1975 SC 216, 1975 CriLJ 262, (1975) 3 SCC 752.

H.  For that, the conviction should be set aside because (1) there-was a misdirection in the charge to the accused, (2) that there was an improper reception of evidence and as such the trial was vitiated; (3) that there was a defective constitution of the investigation and as such the trial was a nullity.

I.    Any other ground (s) shall be raised by the applicant with due permission of Hon’ble High Court at the time of hearing of this revision petition.

PRAYER

IT is therefore most humbly and respectfully prayed that Judgement of Conviction and Order of sentence dated 07.09.2017 passed by the Court of XVIth Additional Session Judge, Mr. Girish Dixit, Bhopal in the matter of the Manish Singh V/s The State of Madhya Pradesh in the file of Criminal Appeal No. 9600954 of 2015, arising out of the Judgement of Conviction and Order of sentence dated 11.08.2015 passed by Judicial Magistrate First Class, Mr. Devesh Upadhyay, Bhopal in the matter of The State of Madhya Pradesh V/s Manish Singh in the file of Regular Criminal Trial No. 1695 of 2013, may kindly set-aside, in the larger instrest of Justice.

Any other relief (s) deemed fit and proper may also be granted.

PLACE : JABALPUR

DATED :                          ADVOCATE FOR THE APPLICANT

Format No. 11

(Chapter X, Rule 48)

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO.                OF 2017

CAUSE TITLE

In the matter of :

APPELLANT/                   :       MANISH SINGH

VERSUS

RESPONDENT/ :THE STATE OF MADHYA PRADESH

Prosecution                                Through the Police Station – Govindpura, Bhopal, District – Bhopal (Madhya Pradesh).

Applicant

Appellant

Name                                :       MANISH SINGH

Age                                   :       Aged about 34 years

Father’s Name                    :       Mr. SURESH SINGH KUSHWAH,

Occupation                        :       Business

Address (With Police Station) :     R/O 140, Rachana Nagar, Police Station – Govindpura, Bhopal , (Madhya Pradesh).

Permanents Resident of :    R/O 140, Rachana Nagar, Police Station – Govindpura, Bhopal , (Madhya Pradesh).

Whether in Jail :                                 YES

In Not, the date till the sentence has been suspended

By the Trial Court :                     NIL

Conviction		Sentence
Section	Act	Imprisonment	Fine If deposited, details	Imprisonment in lieu of Fine
Section 325	Indian Penal Code, 1860 (No. 45 of 1860).	R. I. for 1 Year.	Fine amount of Rs. 1000/-deposited Vide Receipt No ___ Book No. ____ before the Court below on   ________.	R. I. for 1 month.
Section 323	Indian Penal Code, 1860 (No. 45 of 1860).	Imprisonment till the rising of the Court	Fine amount of Rs. 500/-deposited Vide Receipt No __ Book No. _____ before the Court below on   ______.	R. I. for 15 days

(Application under Section 389 (1) of the Code of Criminal Procedure, 1973)

S. NO.	Whether any bail application is pending before or already disposed of by (if yes give particulars)	Particulars	of Bail	applications
		NO.	Date of Order	Results
1.	Hon’ble Supreme Court of India	NO	NO	NO
2.	Hon’ble High Court(S)	NO	NO	NO
3.	Court(s) sub-ordinates to the High Court(S)	NO	NO	NO

The Applicant named above respectfully begs to submit as under: -

1.     That, this is applicant’s First application for suspension of sentence and bail before the High Court of Madhya Pradesh.

2.     Whether any proceeding for suspension of sentence and bail of the applicant is pending before or decided by the Supreme Court, if yes, particulars thereof. No

3.     To the best of the knowledge of the applicants, no application for suspension of sentence has been moved by any of the co-accused persons. No

4. Facts of the case in brief :

1.   Applicant has preferred the instant criminal revision under Section 397/401 of the of the Code of Criminal Procedure, 1973 having been aggrieved by the impugned Judgement of Conviction and Order of sentence dated 07.09.2017 passed by the Court of XVIth Additional Session Judge, Mr. Girish Dixit, Bhopal in the matter of the Manish Singh V/s The State of Madhya Pradesh in the file of Criminal Appeal No. 9600954 of 2015, arising out of the Judgement of Conviction and Order of sentence dated 11.08.2015 passed by Judicial Magistrate First Class, Mr. Devesh Upadhyay, Bhopal in the matter of The State of Madhya Pradesh V/s Manish Singh in the file of Regular Criminal Trial No. 1695 of 201.

5.   Grounds, numbered serially :

A.     That, applicant is in jail since 07.09.2017 and there is no allegation that some how he has misused the judicial custody during trial.

B.     That, the revision will take long time for its final hearing and it is not proper to keep the applicant in jail custody, during the pendency of the revision.

C.     That, the apllicant has been falsely implicated in the instant case, as there is no prosecution witness against the accused.

D.     That, no any other FIR is made against the accused and he is falsely implicated in the view of revenge.

E.     That, Appellant is an educated person. There is no likelihood of absconding.

F.     That, the applicant will abide by all terms and conditions as imposed on him under of the bail /suspension of sentence be granted by this Hon’ble Court.

G.     That, the facts and circumstances, it is expedient in the larger interest of Justice that the jail sentence be suspended and appellants be released on bail.

H.     Because the Court below has failed to appreciate that the appellant has an extremely good prima facie case and there is every likelihood of the Appeal filed by the appellant against his conviction being allowed.

6.     That the applicant is ready to furnish adequate surety and shall abide by all the directions and conditions which may be imposed by the court.

P R A Y E R

It is therefore, prayed that Court may kindly be pleased to suspend the sentence and grant bail to the applicant pending disposal of instant appeal.

PLACE : JABALPUR                   

DATE :                             ADVOCATE FOR APPELLANT

IN THE HIGH COURT OF MADHYA PRADESH PRINICIPAL SEAT AT JABALPUR

CRIMINAL REVISION NO.                OF 2017.

APPELLANT/            :       MANISH SINGH

(In Jail)

VERSUS

RESPONDENT/ :       THE STATE OF MADHYA PRADESH

AFFIDAVIT

I, Narayan Das, Aged about 57 years, S/o Late Mr. Basant Lal, R/o 162, Samanvay Colony, Awadhpuri, Bhopal, (Madhya Pradesh), do hereby make oath and state as under:

1.     I am the father of appellant in the instant case and as such competent to swear this affidavit. I have filed the annexed application for under Section 389 (1) of the Code of Criminal Procedure, 1973.

2.     The contents of Para 1) to 6) of the annexed application have been drafted as per my instructions and are true to my personal knowledge and belief and nothing suppressed by me. The pleading regarding Law is based on the legal advice given by my counsel. So help me god.

PLACE : Jabalpur

DATED :                                                           DEPONENT

VERIFICATION

I, the deponent named above do hereby verify and sign on this ___ day of September, 2017 at Jabalpur that the contents of Para 1 and 2 above are true to my personal knowledge and belief.

DEPONENT