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2004 DIGILAW 144 (MP)

LALJI ALIAS LAL BABU v. STATE OF M. P.

2004-02-11

A.K.SHRIVASTAVA

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A. K. SHRIVASTAVA, J. ( 1 ) THE appellant assailed judgment of his conviction and order of sentence passed by leaned trial Court convicting him u/s. 459 of the Indian Penal Code (hereinafter referred as to the IPC) and sentenced him to suffer imprisonment of 10 years and fine of Rs. 500/-, in default, Six months further Rl. ( 2 ) SANS unnecessary details, the facts lie in a narrow compass. In between the night of 10th and 11th of August, 2000, complainant Shivnarayan was sleeping in his house, his wife Mamta Bai was also sleeping nearby him. The light of the room was on, at that juncture, he whisper of jump, as a result of which, his wife woke up and screamed. He also woke and saw that one miscreant is hidden in the room and when the complainant tried to catch him, he warned not to come forward, otherwise, he would fire. The complainant even then tried and succeeded in catching him but in the meantime, he fired by a katta as a result of which, the complainant sustained injury on his chest but despite it, he overpowered the accused and later on, his wife also joined her hands. On being shrieked by these two persons, other members of the family and inhabitants of the village came on the spot. All these persons caught hold the accused and on being asked, he stated his name to be Lalji. By leaving the accused at his house, the complainant went to Police Station to lodge the report and thereafter brought police party to his house. ( 3 ) ON lodging of the FIR Ex. P/l, the criminal law was set in motion and the police party arrived at the house of the complainant and arrested the accused at his house. The Investigating Officer sent the complainant for medical examination at distt. Hospital, Vidisha but the operation theatre, at the relevant time was bacteria infested as a result of which, he was sent to bhopal for treatment. ( 4 ) IN furtherance to his investigation, investigating Officer seized necessary articles and recorded the statements of the witnesses and after doing all the needful, a charge-sheet was submitted in the competent Court who on its turn committed the case to the Sessions Court, from where, the case was received by the trial Court for trial. ( 4 ) IN furtherance to his investigation, investigating Officer seized necessary articles and recorded the statements of the witnesses and after doing all the needful, a charge-sheet was submitted in the competent Court who on its turn committed the case to the Sessions Court, from where, the case was received by the trial Court for trial. ( 5 ) THE learned trial Judge after going through the charge-sheet framed charge u/s. 459, IPC which was denied by the ac- cused/appellant. ( 6 ) IN order to prove the charges, the pros- ecution examined as many as seven wit- nesses and placed Ex. P/l to P/12, the documents on record. The contention of the accused is that he was carrying on the busi- ness of snacks and the money which he earned was given to the complainant and the complainant was trustee of his money, when he came to take back his money, at that juncture, altercation took place, in which, some unknown person fired. Though there is specific defence of the accused, but he did not choose to examine any witness in support of his defence. ( 7 ) THE learned trial Judge after appreci- ating and marshalling the evidence, came to hold that the appellant committed offence for which he was charged and eventually, convicted him and passed the sentence mentioned hereinabove, hence, this appeal. ( 8 ) I have heard Shri S. Gajendragadkar, learned counsel for the appellant and Shri vijaysunderam, learned counsel appearing for the respondent/state. ( 9 ) THE FIR Ex. P/1 has been lodged by complainant Shivnarayan. On going through the FIR, it is noticed that He was sleeping in his house and he heard the whisper of jump inside his house, as a result of which, his wife woke and he too woke up. The light of the room was on and in the light, he saw that one person is hidden inside the room. As soon as he came forward to catch him, the accused warned him that he will fire. In the meantime, he fired as a result of which, complainant sustained injury on the right side of his chest. Thereafter, on being screamed by him and his wife, his parents and inhabitants of the village namely Kartar singh and Bhikam Singh, arrived on the spot. On being asked to that person, he stated his name to be Lalji. In the meantime, he fired as a result of which, complainant sustained injury on the right side of his chest. Thereafter, on being screamed by him and his wife, his parents and inhabitants of the village namely Kartar singh and Bhikam Singh, arrived on the spot. On being asked to that person, he stated his name to be Lalji. ( 10 ) ON going through the evidence of the complainant Shivnarayan who was ex- amined as P. W. 1 in the trial Court, it is gath- ered that whatever he has stated in the FIR, he had said the same version in his state- ment in the Court. The evidence of shivnarayan is corroborated by the medical evidence Ex. P/2 in which, the injury sus- tained by him was found to be caused by pistol and there was blackening entry wound which would mean that the fire took place from very close distance. ( 11 ) THE evidence of the complainant has been corroborated by the evidence of his wife mamta (P. W. 2) though there are some mi- nor contradictions in it. His evidence is fur- ther corroborated by the evidence of Kartar singh (P. W. 3), Tulsa Bai (P. W. 4) and Vir singh (P. W. 6 ). ( 12 ) ONE important fact which cannot be marginalised and blinked away is that the accused was arrested from the house of com- plainant and, therefore, this fact also cor- roborates the version of the prosecution wit- nesses. Apart from this, in his statement recorded u/s. 313, Cr. P. C. this fact has been admitted by the accused. ( 13 ) I have considered entire evidence of the prosecution and I find it to be cogent and trustworthy. I have also gone through the reasonings assigned by the trial Court and they are found to be based on the evi- dence placed on record and I do not wish to deviate myself from those reasonings and by this judgment, I hereby give my stamp of approval to those reasonings. ( 14 ) YET there is another facet of the case. The appellant is in jail since 11-8-2000. This fact has not been disputed by the learned counsel appearing for the State. There is no past bad antecedent of the appellant. ( 14 ) YET there is another facet of the case. The appellant is in jail since 11-8-2000. This fact has not been disputed by the learned counsel appearing for the State. There is no past bad antecedent of the appellant. As appellant is in jail since 11-8-2000, accord- ing to me, it would be appropriate to reduce the sentence, specially when there is no past bad record of the appellant. ( 15 ) LOOKING to the entire gamut of the case, I think it proper to reduce the sen- tence from 10 years' RI to five years' RI. The fine imposed upon the appellant is also hereby reduced from Rs. 5000/- to rs. 3000/ -. Entire sum of the amount of rs. 3000/- be paid to the complainant shivnarayan s/o Natthu Singh. The Chief judicial Magistrate, Vidisha is hereby di- rected to carry out this part of the order and the amount of fine Rs. 3000/- be paid to the complainant. ( 16 ) WITH the aforesaid modifications, this appeal is allowed in part. Appeal partly allowed. .