Madhya Pradesh High Court
Boocha @ Daulat Singh & Ors. vs The State Of M.P on 21 February, 2012
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
(1)
HIGH COURT OF M. P. JUDICATURE AT JABALPUR
CRIMINAL APPEAL NO. 1588 of 1996
Shahzad Hussain and 5 others
Versus.
State of Madhya Pradesh
For appellants : Shri S.K.Dixit, Advocate.
For respondent : Shri Rakesh Kesharwani, P.L.
JUDGMENT (Oral)
(21.02.2012) U.C. MAHESHWARI J.
This appeal is directed by the appellants under Section 374(2) of the Cr.P.C. being aggrieved by the judgment dated 3.9.96 passed by the 6th Addl. Sessions Judge, Jabalpur in S.T.No.597/94 convicting each of them under section 148 and 427 of the IPC for RI six months in each of such sections separately with a direction to run the sentences concurrently.
2. The facts giving rise to this appeal in short are that on dated 5.12.93 at about 8.30 PM, deceased appellant No.1 Boocha and appellant No.3 Kale alias Narayan near to the shop of complainant Mahendra Singh Yadav were quarreling with each other, on which, the elder brother of the complainant separated them, on which, they went away from such place. Subsequent to it, the appellants lashed with sticks, farsa and sword in furtherance of their common object came to the shop of complainant and after making assault on him, the (2) deceased appellant No.1 Boocha, who was lashed with bomb (the explosive substance) blast the same in front of the shop. Some of the appellants had thrown the stones on such shop whereby various glasses of the shop had broken and the TV was also damaged. In such premises, the complainant suffered the loss of near about Rs.10,000/-. As per further averments, some other persons were also accompanied with the appellants whom the complainant could not identify, all such culprits came their as member of some Ganesh Utsav Samiti. Immediately after the incident, the complainant lodged the report with P.S. Ranji, on which, the offence of section 147,148,149,336 and 427 of the IPC and section 3/5 of the Explosive Substance Act was registered against seven named persons and also some others. The further investigation was held in which prima facie appellants were found to be involved with the alleged offence , on which, they were charge sheeted.
3. After committing the case to the Sessions Court, on framing the charges of section 148 and 427 of IPC and section 3/5 of the Explosive Substance Act against deceased appellant No.1 Boocha and appellant No.3 Kale alias Narayan while of section 148 and 427 IPC against the remaining appellants, they abjured the guilt, on which the trial was held. On appreciation, by acquitting the appellants No.1 and 3 from the charge of section 3/5 of the Explosive Substance Act, all the appellants were held guilty for the offence of section 148 and 427 of the IPC and punished with the punishment as stated above, on which, they have come to this court with this appeal. (3)
4. Shri Dixit, learned counsel for the appellants after taking me through the evidence on record along with the exhibited papers of the charge sheet, without challenging the findings holding guilty to the appellants under the above mentioned offence of section 148 and 427 of IPC has made his limited submission on two counts, firstly by saying that the alleged incident took place long before in the year 1993 and any of the appellants did not have any criminal antecedent, besides this, they have already suffered the mental agony of this case since last 18 years and also remained for some time near about or more than one month in judicial custody during trial, therefore, they being first offender by adopting the lenient view, the benefit of section 4 of the Probation of Offender Act be extended to them. He further said that in case such benefit is not extended to them then in that circumstances, their awarded jail sentence be reduced upto the period for which they have already undergone as submitted by him by imposition of some fine under discretion of the Court and prayed for allowing this appeal accordingly.
5. Responding the aforesaid arguments, Shri Rakesh Kesharwani, learned Panel Lawyer by justifying the impugned conviction and sentence said that the same being based on proper appreciation of the evidence, do not require any interference at this stage either for extending acquittal to the appellants or for extending the benefit of Probation of Offenders Act to them or in any case to reduce the awarded jail sentence by imposition of fine or otherwise and prayed for dismissal of this appeal.
(4)
6. After hearing the counsel at length, keeping in view their arguments, I have carefully gone through the record of the trial court. After perusing the evidence led by the prosecution as well as the exhibited papers of the charge sheet along with the impugned judgment, I have not found any perversity, infirmity, illegality or anything against the propriety of the law in appreciation of the evidence by the trial court for giving the findings in the impugned judgment holding the alleged conviction against the appellants. So, in such premises, I have not found any scope in the matter for extending the acquittal to the appellants. Although, such prayer has not been made on behalf of the appellants but in order to do justice with the appellants, I have examined the matter to find out the scope to extend the acquittal to the appellants. But I have not found any such circumstances in the matter. In such premises, the impugned conviction of the appellants under section 148 and 427 of the IPC are hereby affirmed.
7. Coming to consider the prayer for extending the benefit of Probation of Offenders Act to the appellants is concerned, looking to the nature of the offence and the manner in which the same was committed by the appellants accompanied with deceased appellant No.1 Boocha, even after 18 years from the date of the incident, in the light of the available evidence, I am not inclined to extend such benefit to the appellants. Consequently, such prayer of the appellants counsel is hereby rejected.
8. Coming to consider the alternate prayer of the appellants (5) counsel for reducing the awarded jail sentence is concerned, I have found some substance in it. It appears from the record that any of the appellants did not possess any criminal antecedents except the present case. They have already suffered the mental agony of this case in last 18 years by giving their appearance on various occasions in the trial court as well as before this court. Besides this, they also suffered the judicial custody near about or more than one month during trial and appellant No.7 Susti alias Bablu is still facing the remaining jail sentence since 7.2.2012 under execution of the non-bailable warrant of this court. So, keeping in view all these circumstances, after 18 years from the date of the incident, instead to send them again jail for facing the remaining jail sentence, I deem fit to reduce their awarded jail sentence upto the period for which they have suffered the judicial custody by imposition of some fine on them. According to the record, appellant No.2 Shahzad Hussain suffered the judicial custody between 17.1.94 to 26.2.94, appellant No.3 Kale alias Narayan between 18.1.94 to 2.3.94, appellant No.4 Kamal Raikwar between 18.1.94 to 1.3.94, appellant No.5 Omprakash between 18.1.94 to 2.3.94, appellant No.6 Santosh Kumar Yadav between 7.2.94 to 1.3.94 and appellant No.7 Susti between 7.2.94 to 1.3.94 during trial. Besides this, appellant No.7 Susti is suffering the remaining awarded jail sentence from 7.2.2012 till today under execution of non-bailable warrant, accordingly he is in jail. The same is ordered accordingly.
9. In view of the aforesaid discussion, by affirming the conviction of the appellants under section 148 and 427 of the IPC, this appeal is (6) allowed in part and their awarded jail sentence in both the sections is hereby reduced from six months to the aforesaid period suffered by them in judicial custody or subsequent to it, by imposition of fine Rs.500/- in each of the section 148 and 427 IPC against each of the appellants No.2 to 7. The aforesaid imposed fine amount is to be deposited by the appellants No.2 to 6 within forty five days from today, failing which the concerning appellant has to suffer further RI three months. Till this extent, the findings of the impugned judgment are modified while the other findings of the same are hereby affirmed.
10. The bail bonds of appellants No.2 to 6 are hereby discharged. As per record, appellant No.7 is facing the awarded jail sentence, hence the jail authority be intimated that subject to depositing the aforesaid fine amount he be set at liberty forthwith if his presence is not required in any other case and if such amount of fine is not deposited then such appellant has to suffer further RI three months.
11. The appeal is allowed in part as indicated above.
(U.C.MAHESHWARI) JUDGE MKL