Madhya Pradesh High Court
Barelal And Ors. vs The State Of M.P. on 15 December, 2016
1 Cri.Revision No.528 of 2000
HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE SUBHASH KAKADE
Criminal Revision No.528 of 2000
PETITIONERS: 1. Barelal, son of Mohanlal Lodhi , aged
50 years (MP);
2. Khuman son of Mohanlal Lodhi, aged 35 years,
Both residents of Nayakherha, Police Station- Deori,
District-Raisen (MP)
Versus
RESPONDENT: The State of Madhya Pradesh
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Shri T.P.Jaiswal, Advocate for the petitioners Shri Ramesh Kushwaha, Panel Lawyer for the respondent/State.
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(O R D E R ) Passed on: 15.12.2016 This criminal revision under Section 397/401 of the Code of Criminal Procedure,1973 has been filed by the petitioners against the Judgment dated 7.4.2000 passed in Criminal Appeal No.13/98 by learned 2 nd Addl.Sessions Judge, Raisen whereby the petitioners have been convicted under Section 326/34 of IPC and sentenced to undergo R.I. for six months and fine of Rs.300/- each with default stipulation, modifying the judgment passed by learned JMFC,Udaipura, District-Raisen on dated 10.02.98 in Criminal Case No. 183/95.
2 Cri.Revision No.528 of 2000
2. The facts in brief are that on 19.08.95 due to some dispute which was going on for the last 3-4 days between Summa (PW.1) and the petitioners, it is alleged that petitioner Barelal abused them while going in front of the house of petitioners. On being resisted, petitioner Barelal by means of an axe caused injuries to Summa, and petitioner Khuman made an assault on Nabbi Bai by means of lathi. FIR was lodged by Summa (PW.1) which was registered vide Crime No.71/95 at PS-Deori, District-Raisen for the offence punishable under Sections 324/323, 326,506,294 and 34 of IPC.
3. Learned trial Court framed charges punishable under Sections 294,324,326/34,323/34 and 506 of IPC against petitioner Barelal and under Sections 326/34,323,506, 324/34 of IPC against petitioner Khuman who abjured their guilt; therefore, they were put to trial. Co-accused Hargovind was charged for the offence punishable under Sections 326,323/34 ,324/34 and 506 of IPC.
4. In order to bring home the charges against petitioners, the prosecution has examined eleven witnesses, namely, Summa (PW.1), Kishanlal (PW.2), Nabbi Bai (PW.3), Dr.Kamlesh Silawat(PW.4), Kalyan Singh (PW.5), Babulal (PW.6) ,Harisingh (PW.7), Sukhram (PW.8), Munnalal (PW.9), Manas Shah (PW.10) and A.S.I. Pankaj Dixit (PW.11), and exhibited ten documents to prove its case. 3 Cri.Revision No.528 of 2000
5. During the statement under Section 313 of the Cr.P.C. the petitioners denied all the evidence put forth against them and pleaded innocence.
6. Learned JMFC on appreciation of the prosecution evidence, though acquitted co-accused Hargovind and found petitioners Barelal and Khuman guilty for the offence punishable under Sections 323,324,326,34 of IPC. In appeal, learned Appellate Court has acquitted the petitioners for the offence punishable under Sections 323/34 and 324/34 of IPC, but convicted them only under Section 326/34 of IPC and sentenced to undergo R.I. for six months and fine of Rs.300/-each. Aggrieved thereby, this revision has been filed by the petitioners.
7. It is submitted by learned counsel for the petitioners that the impugned judgments of conviction and sentence passed by the Courts below are contrary to facts and circumstances of the case and are liable to be set aside. It is further averred that learned Appellate Court has committed grave error while convicting and sentencing the petitioner under Section 326/34 of IPC and has not appreciated the material evidence which is available on record in its true perspective. It is also submitted that there are contradictions and omissions in the statements of prosecution witnesses. Finally, it is prayed that revision be allowed and the petitioners be acquitted.
4 Cri.Revision No.528 of 2000
8. Learned PL appearing for respondent/State has submitted that after due appreciation of prosecution evidence, the learned Courts below have found the offence punishable under Section 326/34 of IPC proved against the petitioners, hence no interference is required to be made in this revision.
9. After hearing learned counsel for the parties, perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; statements of the petitioners recorded under Section 313 of the Code, with the documents (Ex.D/1 and D/2) exhibited for defence; and the impugned judgments. After reflecting over the matter, I am implicitly satisfied that on merits, the conviction of the petitioner under Section 326/34 of IPC, warrants no interference.
10. Learned Courts below in their judgments have elaborately discussed the evidence of prosecution witnesses. Main injured Kishanlal (PW.2) has stated in his statement that prior to this incident, he reported the matter on the ground that the petitioners had lifted the bundle of grass from their possession. He further stated that on the day of incident the petitioners came over there and started abusing him and while he tried to stop them, petitioner Khuman inflicted injury on his head by axe, and petitioner Barelal by blunt side of axe on his ribs, then he became unconscious. 5 Cri.Revision No.528 of 2000 He also pointed out that while his father Summa (PW.1) and mother Nabbi Bai (PW.3) came forward to rescute him, petitioners also inflicted injuries to his parents. During his elaborate cross-examination, he has stated all the facts regarding assault and clarified each each and every doubt etc. raised by the defence. He has specifically denied the suggestion that he started the Marpeet with the petitioners.
11. Complainant Summa (PW.1) and his wife Nabbi Bai (PW.3) also sustained injuries in the incident,therefore, their presence at the time of incident on the spot is inbuilt proof. Summa and Nabbi Bai have fully supported the statement of their son Kishanlal (PW.2), and also pointed out how the petitioners inflicted injuries on their persons. During their cross-examination, nothing is brought on record by the defence on the basis of which statements of these two witnesses can be brushed aside.
12. Dr. Kamlesh Silawat (PW.4) medically examined complainant Summa (PW.1), Kishan lal (PW.2) and Nabbi Bai (PW.3). Expert witness admitted this fact that he did not find any injury on chest and hands of Summa, the injury was present on base of index finger. He admitted that injury no.1 found on person of Nabbi bai was not possible caused by sharp edged weapon, as well as injury no.2 was possible if a person fell down. Dr. Silawat (PW.4) also admitted this fact 6 Cri.Revision No.528 of 2000 that during medical check up Kishanlal was completely conscious and injuries were found on his back.
13. Dr. Manas Shah (PW.10) on the basis of X-ray report (Ex.P/10) of Kishan lal opined that he did not find any fracture except found one depressed fracture on fronto parietal region. Doctors had given their opinion regarding the nature of injuries or seriousness of the injuries caused on person of Kishan lal.
14. Other discrepancies which have been highlighted do not really earn the status of contraction to make the evidence of these witnesses impeachable, incredible or not beyond reproach. Therefore, the conviction of the petitioners under Section 326/34 of IPC is hereby maintained.
15. Now the question arises that as to how a balance should be struck and maintained in regard to the sentence.
16. From perusal of record of learned trial Court, it is apparent that petitioner Barelal was arrested and produced before the learned trial Court on dated 24.04.96 (whereas the date is mentioned in the impugned judgment of learned Appellate Court as 07.5.96) and was released on bail on dated 11.07.96, that way he was under custody for 79 days. After conviction by learned trial Court vide impugned judgment dated 10.02.98 , the petitioners were taken into custody and their period of jail sentence was suspended by learned appellate Court vide order dated 13.02.98, and they 7 Cri.Revision No.528 of 2000 were released on bail on dated 4.3.98, that way the petitioners were in custody for 22 days. Thereafter, the petitioners were again brought under custody in light of impugned judgment of learned Appellate Court dated 7.4.2000 and after 12 days vide Order dated 19.04.2000 of this Court, their jail sentence was temporarily suspended.
17. As per weapon seizure memos, Ex.P/8 and P/9, both dated 01.09.95 of Khuman and Barelal, their age were mentioned 35 and 50 years respectively. That way now after facing this criminal trial for long more than 21 years, they are running in their 60's and 80's, hence no fruitful purpose would be served out if the petitioners will be sent to jail again..
18. Learned appellate Court in para 11 of the impugned judgment observed that :-
"vkgr fd"ku ,oa vkjksihx.k ijLij HkkbZ&HkkbZ gSa rFkk fd"ku us Hkh vkjksihx.k ls jkthukek gksuk rFkk vPNs lEcU/k gksuk dgk gS rFkk jkthukek Hkh is"k fd;k gSA ftldks ns[krs gq, esjs er esa vkjksihx.k ckjsyky ,oa [kqeku esa ls izR;sd dks Hkk-n-fo- dh /kkjk&326@34 ds vijk/k ds fy, 6&6 ekg ds dkjkokl dh ltk i;kZIr izrhr gksrh gSA vFkZn.M dh ltk esa gLr{ksi dh dksbZ vko";drk ugha izdV gksrhA "
19. Considering the above facts and circumstances of the case, I am of the considered view that in the instant case, more important sentence should be that the petitioners be 8 Cri.Revision No.528 of 2000 sentenced to the period already undergone by them as against the awarded short period of sentence for six months R.I.
20. In the result upholding the judgment of conviction for the offence punishable under Section 326/34 of IPC recorded by learned Appellate Court, I reduce the sentence awarded to the petitioners to the period of sentence already undergone by them. The revision, to that extent, is allowed and the impugned judgment is modified.
(Subhash Kakade) Judge.
Jk.