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Madhya Pradesh High Court · body

2008 DIGILAW 249 (MP)

Bhure Singh v. State of M. P.

2008-02-14

SUSHMA SHRIVASTAVA

body2008
JUDGMENT : Applicantshave preferred this revision against the appellate judgment dated 29.7.97passed by 1st Additional Sessions Judge, Katni inCriminal Appeal No. 6/94, whereby the order of conviction of the applicantsrecorded by Additional Chief Judicial Magistrate, Katni under Sections 324 & 324/34 of IPC has been affirmed. 2.Applicants were tried for the offence under Section 324 of IPC beforeAdditional Chief Judicial Magistrate, Katni . As perprosecution allegations, on 25.1.83 at about 1 o'clock in the noon, whencomplainant Tulsi was returning back from the jungleof Village Naredi after picking up the bones, he wasinterrupted by three persons of Village Naredi .Complainant Tulsi knew those persons, who were Thakurs of the Village Naredi ,but he did not know their names. Those three persons hurled obscene abuses andcaused hurt to complainant Tulsi by ' tangia ’ on his head, left hand and the back. The FIR of theincident was lodged by complainant Tulsi at PoliceStation Vijayraghavgarh , on the basis of which anoffence was registered against the applicants and was investigated. Applicantswere also put to test identification by the complainant. After dueinvestigation, applicants were prosecuted under Sections 323,324, 324/34 ofIPC. 3.After trial, Additional Chief Judicial Magistrate, Katni found the applicants guilty and convicted applicant Bhure Singh under Section 324 of IPC, whereas applicant Shyam Bahadur @ Bhaiya wasconvicted under Section 324/34 of IPC and each of them were sentenced torigorous imprisonment for two years vide judgment dated 9.10.92 passed inCriminal Case No. 386/83. In Criminal Appeal filed by the applicants againstthe aforesaid order of conviction and sentence passed by Additional ChiefJudicial Magistrate, Katni , the Appellate Court,after considering the evidence on record, affirmed the conviction of theapplicants under Sections 324 & 324/34 of IPC respectively and modified thesentence imposed on them to rigorous imprisonment for one year by the impugned judgment,which has been assailed in this revision. 4.Learned counsel for the applicants submitted that the two Courts below gravelyerred in law and facts in convicting and sentencing the applicants and theyfailed to consider that the applicants were not named in the FIR and the testidentification parade was conducted by the doctor, who was not authorized to hold any identification parade. 5.Learned counsel for the State, on the other hand, justified and supported theimpugned judgment and findings recorded by the two Courts below. 6.Impugned judgment and records of the lower Courts perused. 5.Learned counsel for the State, on the other hand, justified and supported theimpugned judgment and findings recorded by the two Courts below. 6.Impugned judgment and records of the lower Courts perused. 7.There is a concurrent finding of fact of two Courts below that both theapplicants caused hurt to complainant Tulsi by meansof ' tangia ' and ' lathi 'respectively, on his way back from jungle. This finding of fact does not sufferfrom any infirmity in view of the positive and credible evidence of complainant Tulsi (P.W.-2) and corroborative evidence of Chhotelal (P. W.-3) coupled with medical evidence of Dr.G.P. Pathak (P.W.-l), who had examined thecomplainant after the incident. Dr. G.P. Pathak (P.W.-1), on medical examination of the complainant Tulsi (P. W.-2), had found two incised wounds caused by some shaip cutting object measuring 2 ¼" x 1" x 1" and 4" x 3 ½"x 3" on the lateral side of his left arm and left side of the auxiliaryregion extending to back of his scapula respectively besides the bone deeplacerated wound and abrasion on his occipital region and his left side of theback. Dr. G.P. Pathak (P.W.-1) also conducted thetest identification parade of the applicants, where the applicants wereidentified by the complainant Tulsi vide testidentification memo (Ex.P.-3). 8.The submission of the learned counsel for the applicants that the doctor had noauthority to conduct the test identification parade, has no merit, as thedoctor is also an independent person and there is no such legal bar that adoctor cannot conduct the test identification parade. More so, complainant Tulsi (P. W.-2) had clearly identified both the applicantsin Court as his assailants. It is settled principle of law, as reiterated bythe Apex Court in its three judges' bench decision rendered in the case of Malkhan Singh & Others vs. State of Mudhya Pradesh as reported in AIR 2003 Supreme Court page 2669 that the substantiveevidence is the evidence of identification in Court and the test identificationparade only provides corroboration to the identification of the witness inCourt, if required. 9.In the instant case, as concurrently held by the two Courts below, complainant(P. W.-2) already knew the applicants, though he did not know their names;which was also reflected from the contents of the FIR (Ex.P.-2) promptly lodgedby the complainant (P.W.-2), that his assailants were Thakurs of Village Naredi , whom he knew by face, if not bytheir names. 9.In the instant case, as concurrently held by the two Courts below, complainant(P. W.-2) already knew the applicants, though he did not know their names;which was also reflected from the contents of the FIR (Ex.P.-2) promptly lodgedby the complainant (P.W.-2), that his assailants were Thakurs of Village Naredi , whom he knew by face, if not bytheir names. So, the identification of the applicants by the complainant (P.W.-2) in Court could not be viewed with suspicion. The findings arrived at bythe Courts below that the applicants were the assailants and they had causedhurt to the complainant were based on sound reasonings and correct appreciation of evidence on record. 10.In fact, in view of the evidence as available on record and the injuries foundon the person of complainant, the conviction of applicant Bhure Singh under Section 324 and conviction of the other applicant under Section 324with the aid of Section 34 of IPC do not suffer from any legal or factualinfirmity so as to call for any interference in this revision. 11.As regards the sentence, learned counsel for the applicants submitted that theincident of the case is very old and belongs to the year 1983 and both theapplicants have also suffered imprisonment for 29 days, their sentence ofimprisonment be reduced to the period already undergone by them and some finemay be imposed on them. 12.Considering the submissions as advanced and the facts and circumstances of thecase, including the injuries found on the person of the complainant and thefact that the incident of the case herein is as old as 25.1.83 and both theapplicants have suffered imprisonment for a period of nearly one month,interest of justice would be sub served if impugned sentence of imprisonment imposedon the applicants is modified and reduced to the period already undergone byeach of them and a fine of Rs . 2.000/- (Rupees twothousand rupees only) is imposed on each of them. 13.Accordingly, the impugned sentence of imprisonment awarded to the applicantsfor the offence under Sections 324,324/34 of IPC is modified and reduced to theperiod already undergone by each of them. However, the applicants shall also beliable to pay fine of Rs . 2,000/-(Rupees two thousandonly) each within a period of two months from today, in default they willsuffer simple imprisonment for two months. 14.Revision petition thus stands allowed to the extent indicated above.