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2007 DIGILAW 422 (MP)

Horilal v. State of M. P.

2007-04-09

U.C.MAHESHWARI

body2007
JUDGMENT 1. This appeal is directed being aggrieved by the judgment dated 19.1.1993 passed by the Additional Sessions Judge, Multai in Sessions Trial No. 168/89 convicting and sentencing the appellant for the offence under section 325 of the IPC for RI two years with fine of Rs. 2,000/-, in default of it further RI of six months was awarded. 2. The facts of the prosecution case in short are that on dated 28.7.1989 deceased Horilal s/o Majhi Mehra Rio village Badgaon accompanied with his wife Dullo Bai went to Khedli Bazar for selling wheat. After marketing at about 4 O' clock in the evening, he alongwith his wife Dullo Bai and other women Bhagwanti and Bhakharya was sitting near the house of Naik. The appellant came there and asked him for giving donation in respect of some Ikka festival. Deceased denied for giving the same as the festival was already over, on which, appellant gave him 3-4 kick blows resultantly he sustained injuries. Soon after the incident, he reported the matter to Police Station Betul. The same was endorsed in the Rojnamcha Sanha, on which he was sent to Primary Health Center Multai where after giving first-aid, he was referred to District Hospital Betul, where on 29.7.1989 he succumbed to the injuries, on which, an offence under section 302 of the IPC was registered against the appellant but subsquently during investigation, the alleged act of the appellant was found to be an offence under section 304 of the IPC for which he was charge-sheeted. 3. After committing the case to the Sessions Court, on framing the charge under section 304-I and in alternate part II of the IPC, the appellant abjured the same, on which the trial was held. On appreciation of the evidence, the appellant was acquitted from the aforesaid charge but held guilty for the offence under section 325 of the IPC and punished with the above mentioned punishment. The same is under challenged in this appeal. 4. Shri Surendra Singh, learned senior Advocate assisted by Shri Manish Mishra, learned counsel for the appellant without assailing any finding of the trial Court holding guilty to the appellant, submitted his limited submissions for reducing his jail sentence upto the period suffered by him in judicial custody by enhancing some amount of fine under the discretion of the Court. 4. Shri Surendra Singh, learned senior Advocate assisted by Shri Manish Mishra, learned counsel for the appellant without assailing any finding of the trial Court holding guilty to the appellant, submitted his limited submissions for reducing his jail sentence upto the period suffered by him in judicial custody by enhancing some amount of fine under the discretion of the Court. He also placed his reliance on a decision of the apex Court in the matter of Habbalappa Dundappa and others v. State of Karnataka [ AIR 2002 SC 485 ] and prayed for allowing his appeal accordingly. 5. On the other hand, Shri Pramod Choubey learned Government Advocate by justifying the impugned judgment as well as conviction and sentence of the appellant said that the same is based on proper appreciation of the evidence. It does not require any interference at this stage for reducing the same and prayed for dismissal of this appeal. 6. Having heard the learned counsel after perusing the record of the trial Court and the impugned judgment, I am of the considered view that the trial Court has not committed any error in holding guilty to the appellant for the alleged offence as the alleged incident has been proved by the wife of the deceased Dullo Bai (PW 11) and other witnesses, namely, Bhagwanti Bai (PW 1), Ramlal Pawar (PW 2) and Saheb Lal (PW 3). The deposition of these witnesses have been further proved by Bhakharya (PW 4) and Munna (PW 5) till some extent. Laxmi Prasad (PW 7) has proved the subsequent circumstances as he reached to the spot after the incident was over. 7. The ocular evidence is further proved by the medical evidence. Dr. H.P. Choudhary (PW 14) posted at Primary Health Center Bordehi, deposed that on examining deceased Horilal, he did not find any injury on his person for which he prepared MIC report Ex. P-14. He also replied to the queries made by the police by Ex. P-15 contending that no external injury was seen, therefore, deceased Horilal was not referred to the District Hospital, Betul. Deceased was admitted in the Primary Health Center Multai by Ex. P-13 from where he was referred to the District Hospital, Betul by Dr. N.K. Hirankhede with his report Ex. P-12. Dr. S.R. Sharma (PW 18) who carried-out the autopsy of the deceased and prepared his report Ex. Deceased was admitted in the Primary Health Center Multai by Ex. P-13 from where he was referred to the District Hospital, Betul by Dr. N.K. Hirankhede with his report Ex. P-12. Dr. S.R. Sharma (PW 18) who carried-out the autopsy of the deceased and prepared his report Ex. P-18, categorically stated that no external injury was found on the body of the deceased but his small intestine was found tom measuring 1 "X" from which the stool was coming out and blood was also clotted. According to him such injury was the cause of his death. 8. Thus, it appears that the aforesaid injuries were sustained by the deceased due to kick blows given by the appellant. On appreciation of the evidence the trial Court considered the aforesaid injuries as grievous in nature and convicted the appellant for the offence under section 325 of the IPC. I have not found any error or infirmity in the appreciation of the evidence in the judgment of the trial Court. Thus, it is held that the appellant was rightly convicted by the trial Court for the alleged incident and his act. In pursuance of it, the findings of the trial Court in this regard are hereby affirmed. 9. Before giving any finding on the question for reducing the jail sentence imposed against the appellant by the trial Court, I would like to refer the dictum of the apex Court announced in the matter of Habbalappa Dundappa and others v. State of Karnataka [ AIR 2002 SC 485 ] in which it is held as under: "5. The occurrence took place as early as in 1986. The appellants were acquitted by the trial Court vide order dated 11th September, 1987 and after their conviction for offences under section 326/149, 147 and 148 IPC by the High Court on 9th June, 1992, they were directed to the released on bail vide our order dated 28th August, 1992. In our opinion, keeping all these factors in view it would serve the ends of justice if the appellants are not now sent back to jail, as indeed nothing has been brought to our notice to show that after their release on bail they have acted in any manner prejudicial to law and order. In our opinion, keeping all these factors in view it would serve the ends of justice if the appellants are not now sent back to jail, as indeed nothing has been brought to our notice to show that after their release on bail they have acted in any manner prejudicial to law and order. We, therefore, reduce the substantive sentences of imprisonment of the appellants to the period already undergone by them for the various offences for which they have been convicted but we sentence each one of them to pay fine in addition to the sentence of imprisonment already undergone." 10. On examining the case at hand in view of the aforesaid dictum of the apex Court, it is apparent that the same is fully applicable in the present case, as the alleged incident took place in the year 1989, subsequent to it, more than 17 years have been passed. During this period, no criminal antecedent has been reported against the appellant as submitted by his counsel. As per para 32 of the impugned judgment, the appellant suffered the judicial custody in between 12.8.1989 to 25.1.1990 i.e. five and a half months. He might have been settled with his family during last 17 years. Thus, considering the aforesaid circumstances, I am of the considered view that instead to send the appellant again in jail for facing the remaining jail sentence, his jail sentence be reduced upto the period suffered by him in judicial custody by enhancing the amount of fine. 11. Thus, by affirming the findings of the trial Court and maintaining the conviction of the appellant under section 325 of the IPC, this appeal is dismissed on merits. However, in view of the aforesaid discussion, the jail sentence of the appellant is reduced from RI two years to the period suffered by him in judicial custody with fine of Rs. 15,000/- (Rs. fifteen thousand). The same is to be deposited within sixty days from today. In default of it, he has to suffer further RI one year. On depositing such fine amount, Rs. 10,000/- (Rs. ten thousand) be given to Dullo Bai (PW 11) wife of deceased by calling her through summons in the Court. 12. The appeal is dismissed on merits with the modification in the jail punishment of the appellant as indicated above.