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2006 DIGILAW 942 (MP)

Bharosi v. State of M. P.

2006-08-01

A.P.SHRIVASTAVA

body2006
ORDER 1. Petitioners have filed this revision petition against the order dated 15.12.2000 passed by Additional Sessions Judge. Sheopurkalan, in Criminal Appeal no. 7/99 whereby the appellate Court maintained the conviction under section 324 r/w section 34 and set aside the conviction under section 323 r/w section 34, IPC. Appellants are convicted under section 324 r/w section 34 of IPC and sentenced to undergo imprisonment for six months each and fine of Rs. 250/- each. In default of payment of fine, they are directed to undergo further SI for one month each. 2. It is submitted on behalf of the petitioners that the incident occurred due to dispute on water in the field and as per prosecution story petitioner No.2 Bajranglal inflicted injury on the complainant Kailash by Khutia which is a sharp edged weapon which caused injury to his head and petitioner No.1 Bharosi caused injury from the hard side of Mudal which caused injuries to the complainant on his back side and also on the shoulder of left hand. It is submitted by the counsel for the petitioners that from the evidence, offence against the petitioners were not proved and further his main grievance is that the Courts below have not considered to give benefit under section 360 of CrPC. From the side of the prosecution, the findings recorded by the Courts below are supported. 3. Record perused. In this case, complainant Kailash examined as prosecution witness No.1 and for corroboration the prosecution examined three eye-witnesses namely Kripashankar (PW 2), Radheshyam (PW 4) and Narendra (PW 5). Complainant Kailash (PW 1) corroborated the story written in the FIR Ex. P-1 and affirmed in his statement that the injuries were caused by the petitioners. Petitioner No.2 Bajranglal caused injuries to his head by Khutia and other co-petitioner Bharosilal caused injuries to his back, foot, etc. He lodged the report Ex. P-1 in the Police Station. In cross-examination, witness admitted that a case is pending in the Court against the complainants under Atrocities Act for causing injuries to petitioners. Kripashankar (PW 2), Radheshyam (PW 4) and Narendra (PW 5) corroborated the version of the complainant Kailash (PW 1). Dr. R.K. Mishra (PW 3) stated that he examined the complainant on 10.11.1995 and gave his report Ex. P-3 in which injury No.1 caused by sharp edged weapon which was caused on the head of the complainant. Kripashankar (PW 2), Radheshyam (PW 4) and Narendra (PW 5) corroborated the version of the complainant Kailash (PW 1). Dr. R.K. Mishra (PW 3) stated that he examined the complainant on 10.11.1995 and gave his report Ex. P-3 in which injury No.1 caused by sharp edged weapon which was caused on the head of the complainant. For injury No. 1, X-ray was advised. But there no fracture was found. X-ray report is Ex.P-4 and the X-ray plate is Ex. P-5. 4. There is concurrent finding of facts regarding the injury sustained by the petitioners by sharp edged and hard edged weapon which corroborated by the medical evidence also. From the perusal of record, it does not appear that Court below has not appreciated the evidence properly. It appears that the findings are based on evidence adduced by the prosecution and the appreciation of evidence is also proper, therefore, there is no need to re-appreciate the evidence. 5. Therefore, the finding of the conviction as recorded by the trial Court needs no interference. Regarding sentence, it is submitted by the counsel for the petitioners that the trial Court ought to have given the benefit of section 360 of CrPC and in the alternative it is also submitted that the incident took place in the year 1995 and since then a considerable time has been elapsed. therefore, it is prayed that the petitioners may be sentenced to undergone. It is submitted by the counsel for the petitioners that the petitioners were already in jail for about 22 days. 6. In support of the above contention, the counsel for the petitioner relied on Prakash v. State of M.P. reported in 1993 CrLJ 119 in which it is held that benefit of probation not given, no reason given by the Court, assigning reason is mandatory. Similar view was expressed in Chandreshwar Sharma v. State of Bihar reported in 2000 (1) MPWN 136 = 2000 SC (Cri) 1500 regarding the benefit of probation under section 360 CrPC. It cannot be said that the Court below has not considered this aspect. The appellate Court in para 22 of the judgment has considered and found not fit to give benefit to the petitioners. Therefore, it cannot be said that this aspect has not been considered by the lower appellate Court. 7. It cannot be said that the Court below has not considered this aspect. The appellate Court in para 22 of the judgment has considered and found not fit to give benefit to the petitioners. Therefore, it cannot be said that this aspect has not been considered by the lower appellate Court. 7. Regarding sentence, it is submitted by the counsel for the petitioners that the incident took place in the year 1995 and since then a considerable time has been elapsed, therefore, leniency should be shown in awarding the sentence. It is submitted that the petitioners were already in jail for about 22 days and in this regard counsel for the petitioners relied on Bholu v. State of M.P. reported in 2001 (I) MPWN SN 194 and Janved v. State of M.P. reported in 1988 (II) MPWN 177. 8. Keeping in view the above discussion, it is clear that the incident took place in the year 1995. Eleven years have been elapsed since the incident, therefore, no useful purpose will be served in sending the petitioners to jail, therefore, while maintaining the conviction under section 324 r/w section 34, IPC against the petitioners the sentence is reduced to already undergone but the amount of fine is enhanced from Rs. 250/-each to Rs. 2,500/- each. In default of payment of fine, the petitioners will have to undergo simple imprisonment for three months each. 9. With these modifications, the revision petition is disposed of. The bail bonds of the petitioners shall stand discharged henceforth.