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2009 DIGILAW 1298 (MP)

MANIK CHAND v. STATE OF M P

2009-11-24

SUSHMA SHRIVASTAVA

body2009
Judgment ( 1. ) APPLICANTS have preferred this revision against the appellate judgment dated 11. 12. 98 passed by First Additional Sessions Judge, sidhi in Criminal Appeal No. 7/89, whereby the conviction of the applicants recorded under Section 452/34, 323/34 and 427/34 of IPC as recorded by Judicial Magistrate First Class, Deosar, District Sidhi in criminal Case No. 127/85 has been affirmed. ( 2. ) APPLICANTS were tried for the offences under Section 452, 323, 427/34 of IPC before Judicial Magistrate First Class, Deosar, District sidhi. As per prosecution allegations, on 31. 3. 85 about 3. 30 P. M. when complainant Satyanarayan was sitting inside his sweets shop situated at village Naudhiya, applicants carrying lathis entered into his shop built in his house, hurled abuses and began marpeet with Satyanarayan by lathi causing various injuries to him. When his father Mangal, wife Gulbi and babulal came to his rescue, applicants assaulted them as well causing injuries. The applicants also broke the glasses of the almirah and damaged the sweets kept inside. The FIR of the incident was lodged at police Station Jiyawan, Sidhi, on the basis of which an offence was registered against the applicants and was investigated. Complainant and injured persons were sent for medical examination. After due investigation, applicants were prosecuted under Sections 452, 323, 427/34 of IPC. ( 3. ) AFTER trial, learned Judicial Magistrate First Class, Deosar, found the applicants guilty for commission of the offences under Section 452, 323, 427/34 of IPC and sentenced them to rigorous imprisonment for one year, three months and four months for the respective offences vide judgment dated 31. 1. 89 passed in Criminal Case No. 127/85. ( 4. ) IN Criminal Appeal filed by the applicants against the aforesaid order of their conviction and sentence passed by Judicial magistrate First Class, Deosar, the appellate court, after considering the evidence on record, affirmed the conviction of the applicants, but modified and reduced their sentence of imprisonment under Section 452/34 to a period of three months rigorous imprisonment with fine of rs. 500/-, set aside the sentence of imprisonment for the offences under section 323, 427/34 of IPC, instead each of the applicants were sentenced to fine of Rs. 300/- under Section 323/34 and fine of Rs. 200/-for the offence under Section 427/34 of IPC by the impugned judgment, which has been challenged in this revision petition. ( 5. 500/-, set aside the sentence of imprisonment for the offences under section 323, 427/34 of IPC, instead each of the applicants were sentenced to fine of Rs. 300/- under Section 323/34 and fine of Rs. 200/-for the offence under Section 427/34 of IPC by the impugned judgment, which has been challenged in this revision petition. ( 5. ) LEARNED counsel for the applicants submitted that the courts below gravely erred in law and facts in convicting and sentencing the applicants, though the case was not proved against them. ( 6. ) LEARNED counsel for the State, on the other hand, justified and supported the impugned judgment and findings recorded by the courts below. ( 7. ) IMPUGNED judgment and records of the lower courts perused. ( 8. ) THERE is a concurrent finding of fact of two courts below that the applicants armed with lathi entered into the shop of complainant satyanarayan and caused hurt to Satyanarayan (P. W-1), Babulal (P. W-2), Gulbi (P. W-3) and Mangal (P. W-4) and damaged the property. The aforesaid finding of fact does not suffer from infirmity in view of the ocular and medical evidence available on record and does not suffer from any legal or factual infirmity so as to call for any interference in revision. ( 9. ) AS regards the sentence, applicants have been sentenced only with fine of Rs. 300/- and Rs. 200/- for the offences under Section 323/34, 427/34 of IPC respectively, which does not call for any interference. As regards the impugned sentence of imprisonment of three months awarded to the applicants for the offence under Section 452/34 of IPC, learned counsel for the applicants strenuously urged that the incident of the case is very old of the year 1985 and each of the applicants have already undergone sentence of imprisonment for eight days, they should not be sent back to jail after such a long lapse of time; it was, therefore, submitted that the impugned sentence of imprisonment awarded to the applicants under Section 452/34 of IPC be modified and reduced to the period already undergone by each of them with some additional fine. ( 10. ( 10. ) CONSIDERING the submissions as advanced and the facts and circumstances of the case, especially the fact that the incident of the case occurred way back in the year 1985, interest of justice would be subserved if the impugned sentence of imprisonment for three months awarded to the applicants under Section 452/34 of IPC is modified and reduced to the period already undergone by each of them with an additional amount of fine of Rs. 2,000/- (rupees two thousand only)each. ( 11. ) ACCORDINGLY, the conviction of the applicants under Section 452/34, 323/34 and 427/34 of IPC is maintained. The sentence of fine imposed on the applicants under Section 323/34 and 427/34 of IPC is also maintained. However, impugned sentence of imprisonment awarded to the applicants under Section 452/34 of IPC is modified and reduced to the period already undergone by each of them with an additional amount of fine of Rs. 2,000/-(rupees two thousand only) to be paid by each of them within two months from today, failing which they shall suffer simple imprisonment for two months. ( 12. ) REVISION stands allowed to the extent indicated above.