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2000 DIGILAW 1164 (MP)

Chhote v. State of M. P.

2000-10-19

MAITHLI SHARAN

body2000
This is an appeal against the judgment of conviction and sentence dated 29.7.1995 passed by the Third Additional Sessions Judge, Morena, in Sessions Trial No. 192/92, convicting the appellants Chhote and Phoolsingh for the offence under section 324, IPC and the accused/appellant Bhagwandas for the offence under section 324/34, IPC and sentencing all of them to undergo one year's rigorous imprisonment. The brief facts of the prosecution case giving rise to this appeal may be summarised thus : Complainant Prakash was the resident of village -- 'Mehto-Ka-Pahad'. In the preceding night of 19.11.1991 accused/appellant Chhote, after consuming liquor, had abused Prakash. At that time Prakash was not there and when he reached, Chimman Singh (PW 6) told him all about that, then he went to village 'Mehtoli-Ka-Pahad' to meet the accused/appellant Chhote. All the three accused/appellants who are real brothers met him and when Prakash asked Chhote as to why he had abused him then some wordy quarrel took place. The accused/appellant Phoolsingh hit Prakash from the blunt side of the axe on his back, accused/appellant Chhote inflicted Bhala injury near his ear and accused/appellant Bhagwandas inflicted lathi injuries on his person. Thereafter Siyaram and Chimman Singh intermeddled, then the accused/appellants fled away. According to the prosecution, there was enmity between the parties for the last about six years. The same day Prakash lodged the report at police Station Banmore at 2.15, p.m., which is Ex. P/2. Prakash was got medically examined; the medical report is Ex. P/5. X-ray examination was also got done regarding Bhala injury but no grievous injury was found. Blood stained clothes of Prakash were seized; other investigation was got done; statements of the eye-witnesses were recorded and after completing the investigation the police filed charge-sheet in the Court of the concerning Magistrate wherefrom the case was committed to the Court of Session. The learned Sessions Judge, Morena, framed charges for the offence under sections 307/34 and 323/34, IPC against the accused/appellant Chhote; accused/appellants Phoolsingh and Bhagwandas were also charged for the offence under sections 307/34 and 307, IPC respectively. They pleaded not guilty and claimed to be tried. The prosecution examined ten witnesses and closed its case. The learned Sessions Judge, Morena, framed charges for the offence under sections 307/34 and 323/34, IPC against the accused/appellant Chhote; accused/appellants Phoolsingh and Bhagwandas were also charged for the offence under sections 307/34 and 307, IPC respectively. They pleaded not guilty and claimed to be tried. The prosecution examined ten witnesses and closed its case. After careful scrutiny of the statement of the prosecution witnesses the learned trial Court came to the conclusion that no offence under section 307, IPC, or for that matter under section 307/34, IPC, was made out against the accused/appellants. However, it found that the offence under section 324, IPC was proved against Chhotelal and Phoolsingh while offence under section 324/34, IPC was found proved against accused/appellant Bhagwandas. They were, therefore, convicted accordingly and sentenced to undergo rigorous imprisonment for one year. Hence, this appeal. I have heard the learned counsel on both the sides and have carefully gone through the record of the case. At the outset learned counsel for the appellants submitted that so far as conviction of the appellants u/s 324 and 324/34, IPC is concerned, he has nothing to argue. According to him, the prosecution did prove the case against the appellants for such offences but so far as the sentence of imprisonment is concerned, the learned counsel argued that keeping in view the provisions engrafted under section 360 and 361, CrPC coupled with the relevant provisions of section 4 of the Probation of offenders Act, 1958, the appellants should have been given benefit of probation and should have been ordered to be so released. Undisputedly, the age of the appellants was above 21 years. Therefore, I am of the view that the provisions of section 360 & 361, CrPC, when read together and in conjunction with each other, do apply in the instant case. Undisputedly, the age of the appellants was above 21 years. Therefore, I am of the view that the provisions of section 360 & 361, CrPC, when read together and in conjunction with each other, do apply in the instant case. They are mandatory in nature and provide that in such a case if the accused is convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less and no previous conviction is proved against him then in such a case if it appears to the Court, regard being had to the age, character or the antecedants of character and to the circumstances in which the offence was committed, that it is expedient that the offender should be so released on probation of good conduct then the Court has discretion to direct his release on his entering into a bond to appear and receive sentence when called upon during such period (not exceeding three years). In the instant case, the conviction of the appellants is for the offence u/s 324, IPC. The maximum punishment as provided under the Code of Criminal Procedure is three years or fine or both. Thus, in such a case the benefit of the provisions of Section 360, CrPC could be given to the appellants, of course, keeping in view the facts and circumstances of the case. I feel that under the circumstances of the case coupled with the fact the incident in question is an old one i.e. of 1991, and also keeping in mind that the appellants have already undergone imprisonment for a period of about three months, in the interest of justice the benefit of probation should be given to them. Thus, in view of the aforesaid discussion this appeal is partly allowed. The order of conviction passed against the appellants for the offence under section 324, IPC is maintained but the sentence passed against them is so modified that instead of sentencing the appellants to imprisonment, they are directed to be released on probation on executing a personal bond of Rs. 10,000/- each for good behaviour for a period of one year with two sureties of Rs. 5,000/- each. In case they are found to commit some offence during this period, they will be directed to appear and receive the sentence which had been imposed on them.