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Madhya Pradesh High Court · body

2007 DIGILAW 939 (MP)

Chensing alias Chena Barela v. State of M. P.

2007-08-29

S.L.KOCHAR

body2007
JUDGMENT : S.L. KOCHAR, J. 1. Considering the prayer of the learned counsel for the appellant, both the aforesaid appeals were taken up together and are being disposed of by this common judgment. 2. The appellant has preferred Cri. Appeal No. 226/2005 against the judgment dated 23-12-2004 passed by the learned 15th Addl. Sessions Judge, Indore in S.T. No. 184/2004 thereby convicting the appellant under section 307 on three counts and Section 332 Indian Penal Code and sentencing to suffer R.I. for 3 years and fine of Rs. 1,000/- in default of payment of fine to suffer additional R.I. for one year on one count (in respect of attempting to commit murder of complainant Ishwarlal) and R.I. for five years and fine of Rs. 1,000/- and in default of payment of fine to suffer additional R.I. for one year on each count (in respect of attempting to commit murder of complainants Ravishankar and Brijesh Mishra and R.I. for two years and fine of Rs. 500/- in default of payment of fine to suffer additional R.I. for six months (under section 332 Indian Penal Code in connection with complainant A.L. Jharia, Sub-Inspector Police). All the jail sentences were directed to run concurrently. 3. The appellant has also preferred Cri. A. No. 228/2005 against the judgment dated 23-12-2004 passed by the same Court in S.T. No. 181/2004 thereby convicting the appellant under section 307 of the Indian Penal Code for committing attempt to murder of complainant Chhogalal) and sentencing him to suffer R.I. for five years and fine of Rs. 1,000/- in default of payment of fine to suffer additional R.I. for one year. 4. According to the prosecution case, on 4-3-2004, Police Party reached in the forest of Nachanbor for arresting the appellant in connection with Crime Nos. 0/30/04 and 0/31/04. The appellant did not surrender and ran away and entered inside his house/hut situated in village Dangi Semliya. Police asked him to surrender himself, but he did not do so and made attack on the police party. Thereafter, some police officials somehow or the other entered his hut. At that time he caused injuries to the police personnel. According to the learned counsel as well as the Medical evidence, Ravishankar, Brajesh Mishra, Ishwarlal and A.L. Jharia suffered simple injuries. Learned counsel for the appellant is not challenging the conviction and sentences of the appellant awarded on different counts. At that time he caused injuries to the police personnel. According to the learned counsel as well as the Medical evidence, Ravishankar, Brajesh Mishra, Ishwarlal and A.L. Jharia suffered simple injuries. Learned counsel for the appellant is not challenging the conviction and sentences of the appellant awarded on different counts. However, he has limited his submission to the extent that in Cri. Appeal No. 228/2005 the appellant has been convicted under section 307 of the Indian Penal Code for causing injury to the complainant Chhogalal and his sentence of R.I. for five year with fine and in default of payment of fine to suffer additional R.I. for one year may be made to run concurrently with sentences of R.I. for five years and fine of Rs. 1,000/- in default of payment of fine to suffer additional R.I. for one year as awarded by the learned trial Court on different count in Sessions Trial No. 1184/2004, as per provision under section 427 of the Code of Criminal Procedure, which reads as under:- “427. Sentence on offender already sentenced for another offence - (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.” 5. There is no dispute that four persons sustained simple injuries in Criminal Appeal No. 226/2005 and one person suffered injuries in Cri. Appeal No. 228/2005. But, looking to the nature of incident, the appellant made attack on police personnel who had gone to arrest him and at that time he caused injuries. There is no dispute that four persons sustained simple injuries in Criminal Appeal No. 226/2005 and one person suffered injuries in Cri. Appeal No. 228/2005. But, looking to the nature of incident, the appellant made attack on police personnel who had gone to arrest him and at that time he caused injuries. For constituting the offence under section 307 of the Indian Penal Code nature of injuries is not the only decisive factor, but it has to be considered on the basis of surrounding circumstances. This Court is not entering into the question whether the offence under section 307 of the Indian Penal Code is made out against the appellant in both the Criminal Appeals or not. The only prayer made by the learned counsel for the appellant for exercising the powers under the provisions of section 427 of the Code of Criminal Procedure. 6. In Cri. Appeal No. 226/2005, the appellant has been convicted by judgment dated 23-12-2004 vide S.T. No. 184/2004. On the same day the appellant has been convicted in S.T. No. 181/2004 which is the subject matter in Cri. Appeal No. 228/2005. Both the incident occurred on the same date i.e. 4-4-2004 between 11.00 AM to 2.00 PM when the police party reached to arrest the appellant and he ran away. Chhogalal, the victim (in Cri. A. No. 228/05) was also chasing the appellant for his arrest and injuries were caused by the appellant to all the aforesaid persons after entering inside the hut. 7. It is clear that the incident in both the cases occurred in same transaction, therefore, the sentence passed in both the cases can be ordered to run concurrently. [See: Mohd. Akhtar Hussakin vs. Assistant Collector Customs, AIR 1988 SC 2143 ]. These are the only cases in which the appellant has been convicted. He has no previous record of his conviction. Therefore, looking to the nature of injuries and surrounding circumstances, the appellant being a tribal and earning his livelihood by doing labour work, he is facing this prosecution since 2004 and is in jail since 5-3-2004, this Court is of the view that it is a fit case for exercising power to direct to run the sentences concurrently passed in S.T. No. 181/2004 and 184/2004 passed by the learned Fifteenth Additional Sessions Judge, Indore vide judgment dated 23-12-2004. 8. 8. In the result, the jail sentences passed by the learned trial Court in S.T. No. 181/2004 vide judgment dated 23-12-2004 under challenge in Cri. A. No. 228/2005 and the jail sentences passed in S.T. No. 1184/2004 vide judgment dated 23-12-2004 under challenge in Cri. Appeal No. 226/2005 are ordered to run concurrently. It is, however, made clear that the sentences of fine as imposed by the trial Court in both the cases are upheld, but in default of payment of fine instead of one year's R.I. jail sentence for the offence under section 307 Indian Penal Code on four counts, is reduced to the sentence of R.I. of four months and for offence under section 332 of the Indian Penal Code, the sentence in default of payment of fine is reduced to R.I. for two months. 9. Office is directed to send a copy of this judgment to the trial Court along with its record for compliance, in due course.