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2009 DIGILAW 1127 (MP)

Premlal v. State of M. P.

2009-09-14

SUSHMA SHRIVASTAVA

body2009
ORDER 1. Applicant has preferred this revision against the appellate judgment dated 11.4.97 passed by Second Additional Sessions Judge, Katni in Criminal Appeal No. 38/96, whereby the conviction of the applicant under Section 326 of IPC recorded by Additional Chief Judicial Magistrate, Katni and sentence passed on him are affirmed. 2. Applicant was tried for the offence under Section 326, 324/34 & 294 and 506-II of IPC alongwith co-accused Jawaharlal before Additional Chief Judicial Magistrate, Katni. As per prosecution allegations, complainant Bhagwant Rai had purchased a 'Karhi' tree from the father of the applicant, namely Jagannath for Rs.450/- on 21.12.89 and he had cut the small wooden branches of the tree and left" big woods in the field ten days prior to the occurrence. On 23rd March 1995, complainant Bhagwant came to know that the applicant and his son Jawaharlal were cutting the woods of the tree purchased by him; then complainant Bhagwant Rai, his brother Kodulal, Ramanuj and Sarpanch Rajabhaiya reached the field and found the applicant and his son Jawahar cutting the woods by an axe. When complainant Bhagwant Rai objected to it, both the applicant and his son began uttering filthy abuses to the complainant and his brother Kodulal and also intimidated them by giving threat to their lives. Thereafter co-accused Jawahar assaulted Kodulal by an axe; when complainant Bhagwant Rai tried to intervene and save his brother, applicant Premlal gave an axe below on his right thigh causing incised wound in the middle 1/3rd of the anterior lateral aspect of his thigh resulting into fracture of right shaft of femur. Injured complainant Bhagwant Rai and his brother Kodulal were rushed to the Katni Hospital Upon receiving information from the hospital authorities, police reached the hospital and recorded the statement of complainant Bhagwant Rai and after priliminary enquiry an offence was registered against the applicant and co-accused Jawahar at Police Station Katni and was investigated. Upon medical examination of complainant Bhagwant Rai, besides an incised wound on his right thigh a fracture of the shaft of femur was also detected upon his X-ray examination. After due investigation, applicant and co-accused were prosecuted under Section 294, 323, 324, 326/34 and 506-B of IPC. 3. Upon medical examination of complainant Bhagwant Rai, besides an incised wound on his right thigh a fracture of the shaft of femur was also detected upon his X-ray examination. After due investigation, applicant and co-accused were prosecuted under Section 294, 323, 324, 326/34 and 506-B of IPC. 3. After trial, learned Additional Chief Judicial Magistrate, Katni, acquitted the applicant under Section 294, 506-B and 324 of IPC but found him guilty under Section 326 of IPC for causing grievous hurt to complainant Bhagwant Rai by axe and sentenced him to rigorous imprisonment for three years, whereas co-accused was acquitted under Section 294, 506-B and 326/34 of IPC, but found guilty under Section 324 of IPC for causing hurt to Kodulal and sentenced to fine of Rs.1,000/-, in default rigorous imprisonment for six months. 4. In criminal appeal preferred by the applicant against the conviction and order of sentence passed by Additional Chief Judicial Magistrate, the appellate Court, after considering the evidence on record upheld the conviction and sentence passed on him under Section 326 of IPC and dismissed his appeal by the impugned judgment, which has been assailed in this revision. 5. Learned counsel for applicant submitted that the two Courts below gravely erred in law and facts in convicting and sentencing the applicant. 6. Learned counsel for the State, on the other hand, justified and supported the conviction and sentence passed on the applicant. 7. Impugned judgment and records of the lower Courts perused. 8. There is a concurrent finding of fact of two Courts below that the applicant caused grievous hurt to complainant Bhagwant Rai by sharp edged weapon like axe. The aforesaid finding of fact does not suffer from any infirmity in view of the evidence available on record, particularly the evidence of complainant Bhagwant Rai (PW-1), his brother Kodulal (PW-3) coupled with the evidence of Ramanuj Pandey (PW-2) and the medical evidence of Dr. Naresh Sarawagi (PW-6) and Dr. P.D. Soni (PW-5). Dr. Naresh Sarawagi (PW-6) had examined the injuries of Bhagwant Rai on 23.3.95 and found an incised wound on the right thigh in the middle 1/3rd of anterior lateral aspect admeasuring 4cmx2-l/2 c.m. x muscle deep with bleeding present caused by hard and sharp object. Naresh Sarawagi (PW-6) and Dr. P.D. Soni (PW-5). Dr. Naresh Sarawagi (PW-6) had examined the injuries of Bhagwant Rai on 23.3.95 and found an incised wound on the right thigh in the middle 1/3rd of anterior lateral aspect admeasuring 4cmx2-l/2 c.m. x muscle deep with bleeding present caused by hard and sharp object. Dr.P.D. Soni (PW-5), upon his X-ray examination had found a fracture in the right shaft of femur in the lower l/3rd corresponding to the incised wound found on his right thigh. 9. The finding recorded by two Courts below that the applicant voluntarily caused grievous hurt to complainant Bhagwant Rai on his right thigh by means of an axe, a sharp edged weapon, is based on due appreciation of the evidence on record and does not suffer from any legal or factual infirmity so as to call for any interference in revision. The conviction of the applicant under Section 326 of IPC, therefore, does not warrant any interference. 10. As regards the sentence, learned counsel for the applicant submitted that the incident of the case is very old of the year 1995, the applicant is of more than sixty years of age, he has already suffered imprisonment for more than fifteen days, he should not be sent back to jail after long lapse of time; it was, therefore, submitted that the sentence of imprisonment awarded to the applicant be reduced to the period already undergone by him and some fine may be imposed on him. However, looking to the gravity of offence, the sentence of imprisonment for few days would not be justified for an offence under Section 326 of IPC. 11. Yet considering all the facts and circumstances of the case, especially the fact that incident of the case pertains to the year 1995 and the applicant is of more than sixty years of age, interest of justice would be sub-served if the impugned sentence of imprisonment awarded to the applicant is modified and reduced to a period of six months with fine of Rs.5,000/- (five thousand only). 12. Accordingly, impugned sentence of imprisonment awarded to the applicant under Section 326 of IPC is modified and reduced to a period of six months' rigorous imprisonment. 12. Accordingly, impugned sentence of imprisonment awarded to the applicant under Section 326 of IPC is modified and reduced to a period of six months' rigorous imprisonment. However, the applicant shall also be liable to pay a fine of Rs.5,000/- (five thousand only) to be deposited before the trial Court within a period of three months from today, failing which he shall suffer further rigorous imprisonment for four months. Needless to say that the period of imprisonment already undergone by the applicant shall be set off against the substantive sentence of imprisonment. 13. The amount of fine, if realized, shall be paid to complainant Bhagwatl Rai as compensation for injury caused to him. 14. The applicant is on bail. He shall forthwith surrender to his bail bond to serve out the remaining part of his sentence. 15. Revision stands accordingly disposed of.