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2008 DIGILAW 1353 (RAJ)

Munna Lal v. State of Rajasthan

2008-05-13

MAHESH CHANDRA SHARMA

body2008
Honble SHARMA, J.–The accused appellant has moved this criminal appeal under Section 374 of the Cr.P.C. against the order and judgment dated 2.5.1986 passed by the Additional Sessions Judge No. 1, Ajmer in Sessions Case No. 52/1985 (127/1982) (25/1984) convicting and sentencing the accused appellant under Section 326 of the IPC for two years rigorous imprisonment and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo 15 days ingorous imprisonment. (2). The brief facts of the case are that on 11.4.1982, PW. 1 Amar Singh gave a parcha bayan in the police station Madanganj, in which he stated that he went to the shop of Giriraj for pan, where Munna was present and he hit him with Kulhari on his stomatch and then he inflicted injury on his head with Kulhari. He further clarified that he had enmity with Munna. (3). Upon the said report, the police registered a case under Section 307 IPC. After investigation, the police filed a challan before the court of Munsif and Judicial Magistrate, Kishangarh for the offence under Section 307/323/326/34/114 IPC against the accused appellant Munna Lal and Giriraj. The learned Magistrate committed the case to the Court of District and Sessions Judge, Ajmer and ultimately the case was transferred to the Additional Sessions Judge No. 1, Ajmer for trial. (4). The learned trial Court framed charges against the accused appellant Munna Lal for the offences under Section 326, 307 IPC and against Giriraj for the offence under Section 307, 326/34 and 323 IPC. The charges were read over and explained to the accused appellant, who pleaded not guilty and claimed for trial. (5). During the course of the trial, the prosecution in its support examined as many as 11 witnesses and got exhibited some documents. Thereafter statements under Section 313 Cr.P.C. were recorded. From the defence side two witnesses were produced and some documents were got exhibited. (6). After hearing both the parties, the learned Additional Sessions Judge No. 1, Ajmer acquitted accused Giriraj, but convicted the accused appellant Munna Lal and sentenced him as indicated hereinabove. (7). Aggrieved from the aforesaid order and judgment, the accused appellant Munna Lal has filed this appeal. (8). In this appeal, the learned amicus curiae Mr. (6). After hearing both the parties, the learned Additional Sessions Judge No. 1, Ajmer acquitted accused Giriraj, but convicted the accused appellant Munna Lal and sentenced him as indicated hereinabove. (7). Aggrieved from the aforesaid order and judgment, the accused appellant Munna Lal has filed this appeal. (8). In this appeal, the learned amicus curiae Mr. Hari Barath has urged to this Court that he is not challenging the conviction part of the judgment of the Court below, but he is only requesting this Court that the sentence should be reduced to a period already undergone by the accused appellant. Learned counsel Mr. Barath has urged to this Court that this incident has taken place on 11.4.1982, which is approximately 26 years ago from today and the accused appellant is facing trial since 29.10.1982, which tantamounts to a punishment. He has further urged to this Court that the age of the accused appellant is about 58 years at present and he has remained in judicial lockup for approximately 13 days. He has further drawn the attention of this Court that the accused appellant is having his family and children also and all the children are of marriageable age. He has further stated that the accused appellant is a low paid worker. (9). In support of his arguments, he has relied upon the judgment in Ayub & Others vs. State of U.P. reported in 1994 Cri. L.J. 1219 SC, Honble Apex Court held as under:- "Penal Code (45 of 1860) S. 325- Grievous hurt-sentence- Occurrence taking place about 17 years before- Some of accused more than 76 years of age and one died- Besides some others receiving injuries-Held, it was not fit where accused should be sent back to jail- Sentence reduced to period already undergone- However, fine of Rs. 200/- was imposed on each of them in and in default they were sentenced to one months imprisonment." (10). The relevant para 7 of the aforesaid judgment, the Lordships of the Honble Supreme Court have observed as under:- "7. Having regard to all these circumstances, we think that it is not a fit case where the appellants should be sent back to jail. In the result, while their convictions are affirmed the sentence is reduced to the period already undergone. However, we impose a fine of Rs. Having regard to all these circumstances, we think that it is not a fit case where the appellants should be sent back to jail. In the result, while their convictions are affirmed the sentence is reduced to the period already undergone. However, we impose a fine of Rs. 200/- on each of the appellants in default of which they will be sentenced to one months rigorous imprisonment. Appeal is accordingly disposed of." (11). Mr. Barath has further relied upon a judgment of Apex Court in Halke and Anr. vs. State of M.P., reported in 1994 Cri. L.J. 1220, wherein the Apex Court observed as under:- "We have gone through the judgments of both the Courts and the relevant evidence. It is submitted by the counsel for the appellants that the prosecution has not properly explained the injuries found on the accused persons and the circumstances show that the deceased party could have been the aggressors. The evidence of the injured witnesses also show that the two appellants with sticks inflicted some blows on the deceased as well as on the two witnesses. In this context the medical evidence becomes very relevant. The occurrence is said to have taken place on 15.4.1974. The injured deceased was admitted in the Hospital and the doctor found four contusions. One of them was on the head. The necessary treatment was given and an operation was also performed and unfortunately the deceased died on 22.4.1974. PWs 1 & 19 were also examined by the doctor and similarly he found some lacerated wounds and some abrasions. Therefore to that extent the medical evidence also corroborates the evidence of P.Ws 1 and 9. Taking all circumstances into consideration we find that there must have been a fight and it is difficult to hold that the appellants while inflicting sticks blows had the knowledge that under the circumstances they were likely to cause the death of he deceased when they themselves have received the injuries at the hands of the prosecution party. Coming to the death of the deceased as noted already the medical evidence shows that the deceased was treated for nearly a week and an operation was also performed and he died only thereafter. Coming to the death of the deceased as noted already the medical evidence shows that the deceased was treated for nearly a week and an operation was also performed and he died only thereafter. No doubt the injury on the head proved to be fatal after lapse of one week but from that alone it cannot be said that the offence committed by the two appellants was one punishable under Section 304, Part-II IPC. The injuries found on the witnesses are also of the same nature and for the same they are convicted under Section 325 IPC. Having regard to the fact that the deceased died after one week the offence committed by them in respect of the deceased would also be the same, punishable under Section 325 IPC. In view of the peculiar facts and circumstances of this case we set aside the conviction of the appellants under Section 304, Part-II, IPC and the sentence of years R.I. thereunder, instead we convict the appellants under Section 325 read with Section 345, IPC and sentence each of them to undergo nine months R.I. The conviction under Section 325 read with Section 34, IPC is confirmed but the sentence is reduced to nine months R.I. Both the sentences shall run concurrently. The appeal is partly allowed." (12). Learned counsel Mr. Barath has further relied upon a judgment delivered by the Apex Court in the case of Naib Singh vs. State of Punjab reported in 1986 Cr.L.J. 2061. The relevant portion of the said judgment reads as under:- "Accordingly, the appeal fails and is dismissed. The judgment of the High Court after convicting the appellant under Section 326 of the India Penal code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show hat he acted in the heat of the moment. Looking to the fact that the incident occurred on April 22, 1973, some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5,000/- or in default to undergo rigorous imprisonment for a period of six months. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5,000/- or in default to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation. Appeal dismissed." (13). Learned counsel Mr. Barath has lastly urged that a lenient view should be taken in the light of the judgments cited hereinabove. (14). On the other hand, learned Public Prosecutor Mr. B.N. Sandhu has controverted the arguments advanced by the learned counsel for the accused appellant. (15). In the light of the judgments cited hereinabove and looking to the facts and circumstances of the case, I am inclined to take a lenient view in the matter and I do not think it a fit case where the accused appellant should be sent back to jail. (16). In the result, I maintain the order of conviction passed by the learned trial Court, but looking to the facts and circumstances of the case and the fact that accused appellant has already undergone confinement for the period indicated hereinabove, the ends of justice would meet in sentencing him for the period already undergone by him in confinement. The accused appellant will also pay a fine of Rs. 3000/- and in default of payment of fine, he will further undergo rigorous imprisonment for a period of one month. The amount of fine is to be deposited in the court of the Additional Sessions Judge No. 1, Ajmer within a period of two months from the date of receipt of certified copy of this order and if the same is recovered, the same should be paid to the complainant Amar Singh. (17). The order and judgment dated 2.5.1986 passed by the learned Additional Sessions Judge No. 1, Ajmer is modified to the extent as indicated above. This appeal is accordingly partly allowed.