Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 465 (MP)

Shyambabu Yadav v. State of M. P.

2011-04-19

G.D.SAXENA

body2011
ORDER 1. Being aggrieved by the judgment of conviction and sentence dated 18th June, 2010 passed in Criminal Appeal No. 200/2008 by the Sessions Judge Vidisha (MP) thereby the Appellate Court confirmed the judgment of conviction and sentence dated 12th August 2008 passed in Criminal Case No. 616/2004 by the Chief Judicial Magistrate Vidisha, maintaining the conviction of the petitioner/accused for commission of offence under section 327 of IPC and sentence of 5 years' rigorous imprisonment with fine of Rs. 5000/- and in default to serve six months additional rigorous imprisonment and also conviction under section 332 of IPC and sentence of three years' rigorous imprisonment with fine of Rs. 3000/- and in default to serve four months additional rigorous imprisonment, the petitioner has preferred present criminal revision under section 397/401 of the Code of Criminal Procedure 1973. 2. The facts just for the decision of this revision, are that on 12th May 2004 at around 3 p.m. at Toppura Vidisha, the accused/petitioner Shayam Sahu Yadav and Kalyan Singh Raikwar (acquitted in criminal appeal supra) along with 5-6 other persons entered in the Wine Shop run by the Excise Department and asked Rambabu Dubey (PW-3) who was deputed and working as Salesman in the said liquor shop, to provide them a liquor free of costs. When Rambabu refused them to supply liquor without payment, they got annoyed and by throwing the crate of having 78 bottles of Country Masala liquor, they damaged the bottles and wastaged the liquor. On resistance by the sales Man Rambabu, the accused-petitioner Shyam Babu Yadav assaulted him by broken bottle of liquor and caused injury on his head. The incident was informed to the Assistant Excise Officer Shri Mohan Singh (PW-1). He reached on the spot and after inspection of the spot, he sent the letter to SHO of police Station Kotwali, Vidisha. The FIR, on written report of Mohan Singh, was written and the crime was registered against the accused-persons. The injured was medically examined by Dr. R.S. Sharma (PW-5), who stated that on the day of incident at about 6.20 p.m., he examined the injured and found one incised wound of size 2"x 1/4" x 1/4" over right pariental region, just lateral to mid parietal region, bleeding was present and one contution in 50 paise coin shape over occipal region of scalp. R.S. Sharma (PW-5), who stated that on the day of incident at about 6.20 p.m., he examined the injured and found one incised wound of size 2"x 1/4" x 1/4" over right pariental region, just lateral to mid parietal region, bleeding was present and one contution in 50 paise coin shape over occipal region of scalp. According to doctor, Injury No.1 was caused by sharp cutting object whereas Injury No.2 by hard/ blunt object. The duration of the injuries within four hours. He opined that the injuries were in simple in nature. The injury report is (Ex. P/5). 3. After investigation, the charge-sheet was filed before the trial Magistrate. On framing charge, the prosecution evidence was recorded. After assessment of the evidence of the prosecution as well as of the defence and looking to the oral and documentary evidence, the learned trial Magistrate convicted the accused-appellants Shyam Babu Yadav and Kalyan Singh for the offences under sections 451, 327/34, 332/34 and 427/34 of IPC. and sentenced them accordingly. However, on appeal by both the accused against their conviction and sentence, the appellate Court, acquitted the appellant Kalyan Singh from the alleged offences. So far as accused-appellant Shyam Babu is concerned, he was acquitted of the charges under sections 451 and 427 of IPC but conviction for offence under sections 327 and 332 of IPC and sentence thereon was confirmed, hence, this appeal. 4. Learned counsel for the petitioner assailed the conviction and sentence recorded by the trial Magistrate and that of the lower appellate Court, thereby confirmed the conviction and sentence under sections 327 and 332 of IPC awarded by the trial Magistrate to the petitioner/accused on the ground that the judgments of both Courts are based on the contradictory statements of interested and unbelievable prosecution witnesses. The eyewitness and independent witness turned hostile and did not support the prosecution version. It is submitted by the learned counsel that Mohan Singh (PW-1) Assistant Excise Officer Vidisha just after receiving telephonic information reached on the spot, so he was not eyewitness to the incident. He sent the report on the basis of his latter of inspection of spot. No written report by injured was made to him nor he lodged the FIR with concerned Police Station Vidisha. He sent the report on the basis of his latter of inspection of spot. No written report by injured was made to him nor he lodged the FIR with concerned Police Station Vidisha. It is contended that the prosecution failed to place on record any document relating to the effect that the Excise Constable Ram Babu Dubey (PW-3) was at the time of incident was deputed as public servant to work as Salesman in the liquor shop and he was discharging the public duty. There is no iota on record that the petitioner ever demanded of liquor illegally without payment of pride. Hence, it was contended that the judgment of conviction and sentence passed by both Courts are erroneous and liable to be set aside acquitting the petitioner accused from the alleged offences. 5. Learned Public Prosecutor appearing for the respondent-State, on the other hand, supported the impugned judgment and submitted that no interference is warranted in this revision. 6. Heard the learned counsel for the petitioner and learned Public Prosecutor for the respondent-State and also perused the record. 7. During arguments, learned counsel for petitioner contended that he does not wish to challenge the conviction of the petitioner for the offence under sections 327 and 332 of IPC, but he confined his argument only to the part of sentence. Placing reliance on the decision in the cases of Mansoor v. State of M.P. [1979 (1) MPWN 103] and Narayan Singh Nathu Singh v. Natanvar Lal Hari Lal Thakkar & another reported in 1982 CrLR 35 (SC), it is prayed that a lenient view may be taken in awarding sentence to the petitioner. It is submitted that the petitioner after pronouncement of the judgment dated 18th June 2010 was sent in judicial custody and till today he is serving sentence. Therefore, his undergone detention which is near about 9 months may be taken to be sufficient sentence. It is further submitted by the learned counsel that the petitioner has 31ready deposited the fine amount before the trial Magistrate. Hence, he requests that the sentence awarded by the trial Magistrate and confirmed by the appellate Court for the offence under sections 332 and 327 of IPC be modified to the period of sentence already undergone by the petitioner-accused, maintaining the imposition of fine as awarded by both the Courts below for the alleged offences. 8. Hence, he requests that the sentence awarded by the trial Magistrate and confirmed by the appellate Court for the offence under sections 332 and 327 of IPC be modified to the period of sentence already undergone by the petitioner-accused, maintaining the imposition of fine as awarded by both the Courts below for the alleged offences. 8. Looking to the peculiar facts and circumstances of this case and in view of the decisions in the cases of Mansoor (supra) and Narayan Singh Nathu Singh (supra) and further considering the contention of the learned counsel for petitioner, the sentence of the petitioner-accused for the offence under sections 332 and 327 IPC is modified to the period of sentence already undergone by the petitioner-accused, maintaining the imposition of fine as awarded by both the Courts below for the alleged offences. 9. In the result, the revision petition stands partly allowed. The conviction of the petitioner-accused for the offence under sections 332 and 327 of IPC is hereby maintained while sentence is modified and reduced to the period of undergone jail sentence for offence under section 327 of IPC, with fine of Rs. 5000/- and for offence under section 332 of IPC with fine of Rs. 3000/-. The amount of find is already said to have been deposited by the petitioner in the trial Court. In addition to the fine amount, the petitioner accused is further directed to deposit a sum of Rs. 5,000/- (Rs. Five thousand only) in the trial Court within a period of one month from the date of pronouncement of the order and on such deposit, the same shall be paid to the injured Ram Babu Dubey (PW-3) as compensation under section 357 of CrPC. for the injuries sustained by him in the incident. On failure to deposit the amount of compensation, same shall be recoverable from the accused as amount of fine in accordance with the provisions of law.