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Madhya Pradesh High Court · body

2013 DIGILAW 1488 (MP)

Babloo v. State of M. P.

2013-11-29

SUBHASH KAKADE

body2013
JUDGMENT 1. This appeal preferred by the accused-appellants has called in question the soundness of the judgment passed by learned 7th Additional Sessions Judge, Jabalpur in Sessions Trial No.853/93 dated 23.8.1996 and have been convicted for offence punishable under section 394 of IPC and both of them have been sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- each, in default of payment of fine, they have to suffer further six months’ imprisonment. 2. Facts which are necessary for disposal of this appeal are mentioned in the first information report which was lodged by complainant Raghunath Singh which reads as under : ^^eSa ckbZ dk cxhpk xyh uaEcj 1 edku uaEcj 980 esa jgrk g¡w esjh nokbZ dh nqdku iatkc us’kuy cSad ds lkeus gS vkt fnukad 27-9-1993 dks jkr djhc 10 cts nokbZ dh nqdku can dj vius ?kj vk jgk Fkk tSls gh ckbZ dk cxhpk xyh uaEcj 1] dkyh th ds eafnj ds lkeus vk;k rks cCyw [kVhd rFkk ,d yM+dk ftls ns[kdj eSa igpku ywaxk nksuksa ikl esa vk x, vkSj cksys ekjks eknj pksn dks iSlk Nhu yks vkSj iSls okyk cSx Nhuus dk iz;kl djus yxs fdarq eSusa cSx nksuksa gkFk ls idMs+ jgk] tc eSaus cSx ugha NksM+k rks nksuks us eq>s pkdw ls ekjus yxs ftlls esjs nksuksa tka?kksa esa ihNs rjQ pksVsa vkbZ gSa] eSaus cpkus dk iz;kl fd;k rks ck,a gkFk esa Hkh pkdw yxus ls pksV vk xbZ gS] ekjrs le; nsos’k flag pkSgku] y[kuiky] vHk; flag us ns[kk lquk gS] idM+us nkSM+s rks os nksuksa nkSM+dj Hkkx x,A** 3. The police took up the investigation and during the course of investigation they caught hold off the appellants. On information given by the appellant Babloo under section 27 of the Evidence Act knife, used during the incident were recovered in presence of witnesses. For identification of the appellant Sanju identification parade was also held; complainant rightly identified him. After completion of investigation challan was filed in competent Committal Court which in his turn committed the case to the Court of Sessions Jabalpur and finally it come for the trial before the learned trial Court. 4. On basis of record, learned trial Court framed charges against the appellants who abjured their guilt, so put to trial. 5. After completion of investigation challan was filed in competent Committal Court which in his turn committed the case to the Court of Sessions Jabalpur and finally it come for the trial before the learned trial Court. 4. On basis of record, learned trial Court framed charges against the appellants who abjured their guilt, so put to trial. 5. The prosecution, to prove its case, examined 6 witnesses including complainant Raghunath Singh and filed documents Ex.P-1 to P-9. 6. During the statements recorded under section 311 of CrPC, the accused persons denied all the facts which were put forth against them. The appellants claimed that they were falsely implicated in the crime. The defense does not choose to examine any evidence. 7. The learned trial Judge on the basis of ocular and documentary evidence placed before him, found the appellants guilty of the offence punishable under section 394 and imposed the sentence as mentioned hereinabove. However, acquitted the appellants from the charges punishable under section 397 of IPC. The respondent does not preferred appeal against the acquittal. 8. Shri A.K. Gupta, learned counsel for the appellants argued that the learned trial Court has erred in recording the appellants’ conviction on account of statement of Raghunath Singh whose evidence suffers from serious infirmities, and other independent witnesses have not supported the prosecution version. Learned counsel further submitted that venue of incident is not certain as well as there is difference between the medical and ocular evidence. Looking to the number of injuries, there is every possibility of false implication of the accused. 9. Shri B.P. Pandey, learned Deputy Government Advocate appearing for the State has supported the impugned judgment and conviction and contended that the sole evidence of complainant Basheer is sufficient to establish the charges against the appellant beyond any shadow of doubt, and as such the learned trial Court has rightly convicted the appellants. 10. The facts that complainant Raghunath Singh sustained injuries in the night hours on 27.9.1993 on account of incident were neither in dispute before the learned trial Court nor disputed in this appeal. That apart, there is overwhelming ocular and medical evidence on record which is more than sufficient to establish the above facts beyond any shadow of doubt. Dr. 10. The facts that complainant Raghunath Singh sustained injuries in the night hours on 27.9.1993 on account of incident were neither in dispute before the learned trial Court nor disputed in this appeal. That apart, there is overwhelming ocular and medical evidence on record which is more than sufficient to establish the above facts beyond any shadow of doubt. Dr. B.S. Chouhan (PW3) medically examined the complainant and vide his MLC report Ex.P-8 found following injuries on person of Raghunath Singh : (1) IW C bleeding -1-1/2 inch x 1/2 inch x muscle deep – Obligm over lateral aspect of the mid thigh. (2) IW C bleeding - 1-1/4 inch x 1/2 inch x muscle deep – Obligms over P2. (3) IW C bleeding - 1-1/2 inch x 1/2 inch x muscle – over back of left mid forearm. (4) IW C bleeding - 1 inch x 1/4 inch x muscle deep, transmissions over upper 1/3 Ant inject of left thigh. (5) IW C bleeding 1-1/2 inch x 1/2 inch x muscle deep vertical over lateral aspect of right mid thigh. He further stated that injuries were caused by hard and sharp edged object, simple in nature. 11. About main incident chemist Raghunath Singh (PW1) has categorically deposed that after closing the shop he was returning to his house having purse, keeping amount of medicines selling. He also stated that when he reached near the house of Awasthi Ji, appellants Babloo and Sanjay were standing there crossing 10-20 steps the appellants threatened to give them his purse. He further stated that thereafter appellants Sanjay and Babloo inflicted injuries on his person by knives. On his call for help Vijay Singh, Abhay Singh, Lakhanpal were come over there and to see those appellants were run away. 12. Though eyewitnesses Abhay Singh (PW2) and V.K. Yadav (PW4) did not support the statement of the complainant, but, both these hostile witnesses supported this fact that after hearing the cry for help when they came out from there houses they found Raghunath Singh were injured. V.K. Yadav (PW4) also stated that he escorted injured Raghunath Singh up to the hospital. 13. A.S.I. Shri Kewal Singh (PW5) written the FIR (Ex.P-1) and managed to send complainant for medical examination as per application Ex.P-8. During investigation he inspected the place of incident, prepared spot map Ex.P-4 and recorded statements of the complainant and witnesses. V.K. Yadav (PW4) also stated that he escorted injured Raghunath Singh up to the hospital. 13. A.S.I. Shri Kewal Singh (PW5) written the FIR (Ex.P-1) and managed to send complainant for medical examination as per application Ex.P-8. During investigation he inspected the place of incident, prepared spot map Ex.P-4 and recorded statements of the complainant and witnesses. He also arrested the appellants and seized knife from the appellant Babloo vide memo Ex.P-6 as per his information given under memo Ex.P-6. 14. On a close scrutiny of evidence of complainant Raghunath Singh (PW1) alone, I do not find any infirmity whatsoever in his evidence he is truthful witness and his evidence has rightly been relied upon by the learned trial Court in holding the appellants guilty for attempting to commit robbery, voluntarily causes-hurt. 15. The next question crops up for reconsideration in this appeal are about the nature of the offence proved against the appellants and punishment for it. 16. What would be an appropriate sentence in a particular case cannot be based upon a straitjacket formula. It depends upon the facts and circumstances of each case. The principle of proportion between crime and punishment is governed by the “doctrine of just desert”. The lesser is the gravity of the crime, the smaller would be the punishment and the greater is the gravity of the crime, the higher would be the punishment, subject to the ancillary factors for determining the proportion of the same, though all further subject to the statutory obligations specifically provided by law in force. 17. Following circumstances that persuade me to interfere on the question of sentence awarded to the appellants : (A) There is no criminal antecedent of the appellants. The incident in question had taken place in the year 1993, that way 20 years already elapsed. (B) It is perceivable from the evidence that the appellants did not snatch the purse of the complainant though; they have got a free opportunity. It was the reason that’s why the complainant Raghunath Singh filed I.A. No.16499/2003 to relax the punishment of appellants. It is also pertinent to mention here that Raghunath Singh was also present on 30.8.2013 before the Court when the case was heard finally and at that time he orally repeated his earlier written request. 18. It was the reason that’s why the complainant Raghunath Singh filed I.A. No.16499/2003 to relax the punishment of appellants. It is also pertinent to mention here that Raghunath Singh was also present on 30.8.2013 before the Court when the case was heard finally and at that time he orally repeated his earlier written request. 18. Following chart will explain the detention period of the appellants : Period of detention S.No. Appellant Date of arrest Bail, if granted 1. Babloo a) 28.9.1993 to When bail granted by 7.10.1993 the Sessions Court. b) 23.8.1996 to Date of judgment to bail 17.9.1996 granted by this Court. 2. Sanju a) 28.9.1993 to When bail granted by 7.10.1993 the Sessions Court. b) 23.8.1996 to Date of judgment to bail 17.9.1996 granted by this Court. Both are running now in their fifties. 19. Above are some of the factors which need to take into consideration while imposing an appropriate sentence on the appellants. Taking into consideration the overall circumstances, I deem it just and proper to reduce the sentence of imprisonment of appellants Babloo and Sanju. Please see: State of Punjab v. Gurmit Singh and others [ (1996)2 SCC 384 ]. 20. In view of the aforesaid, I am of the considered opinion that substantive sentence should be confined to the period already undergone in respect of the offence punishable under section 394 of the IPC will be serve the purpose of punishment. 21. In the result, while upholding the order of conviction recorded by the learned trial Court I reduce the sentence awarded to the appellants Babloo and Sanju to the sentence already undergone by them. The appeal is to that extent allowed and the impugned judgment modified. The appellants shall be set free forthwith if not otherwise required in any other case. Appeal partly allowed.