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2019 DIGILAW 116 (MP)

Thanni @ Puranlal v. State of Madhya Pradesh

2019-02-04

MOHD.FAHIM ANWAR

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JUDGMENT : The appellants have filed this appeal against the judgment dated 31.8.2008 passed in Sessions Trial No.16/2007. The appellants were tried for commission of offences punishable under sections 294, 341, 329, 506-II of IPC, lateron acquitted under section 294 and 506-II of IPC and held guilty under section 341 of IPC and sentenced for one month imprisonment each and under section 329 of IPC for 10 years R.I. each with fine of Rs.1,000/- each, and in default of which to undergo 6 months R.I. each. 2. The facts of the case are that on 3.7.2006 complainant Kunjbihari Dubey was going on his motor cycle towards his house along with his son Vijendra Kumar Dubey. On the way appellants have intercepted them and demanded money for drinking liquor, but when the complainant refused, then appellant Thanni @ Puranlal armed with wooden stick and appellant Chhotelal @ Sukhdev armed with stone beaten the complainant Kunjbihari Dubey, due to which he sustained injuries on his head, left hand, finger of right hand and on the right leg. He was taken to the hospital from the place of incident, where he was admitted. The information was sent to the Police Station Saleemnabad where Crime No.201/2006 for offences punishable under sections 341, 294, 323, 324, 506, 329, 327 of IPC have been registered. Later on offence punishable under sections 327 and 329 of IPC have been added on the receiving the medical report of complainant and charge-sheet has been filed. 3. The trial Court framed the charges for offences punishable under sections 294, 341, 329, 506-II of IPC. After trial, the appellants have been held guilty and sentenced as mentioned above. 4. Learned counsel for appellants have submitted that at the time of lodging the FIR no allegation of extorting the money for consuming the liquor was there. Lateron it has been falsely added in police statement. On that ground, the charge against the appellants have been framed and sentence on the higher side have been awarded to the appellants. The witnesses have been examined by the prosecution. Most of the witnesses are close relatives of complainant Kunjbihari Dubey and independent witnesses have not supported the prosecution case. There is old rivalry between the appellants and complainant because of Gram Panchayat elections, in which complainant Kunjbihari Dubey had fought the election of Sarpanch, while the appellants have canvassed for his opponent. Most of the witnesses are close relatives of complainant Kunjbihari Dubey and independent witnesses have not supported the prosecution case. There is old rivalry between the appellants and complainant because of Gram Panchayat elections, in which complainant Kunjbihari Dubey had fought the election of Sarpanch, while the appellants have canvassed for his opponent. It is also submitted that no injury is found on the vital part of complainant. During the course of argument, it is also submitted on behalf of the appellants that after holding the appellants guilty under the aforesaid sections, they have been unreasonably sentenced with punishment on the higher side, as prescribed in the said section, which is in-proportionate and excessive. The appellants have requested to take this aspect into consideration, if the judgment of holding them guilty is sustained. 5. On the other hand, learned Deputy Government Advocate appearing on behalf of the State has supported the impugned judgment of conviction and order of sentence delivered by the learned trial Court and submitted that the appeal is devoid of substance and it be dismissed. 6. Complainant Kunjbihari Dubey (P.W.5) had deposed that on the date of incident he was driving his motor cycle and his son Vijendra Kumar Dubey was sitting on the back seat. When they were passing from the Railway gate and reached near Chandal, then the appellants have reached there with wooden sticks in their hand and asked money for consuming liquor. When he refused, then the appellant Thanni @ Puranlal had beaten him with wooden stick, due to which he sustained injuries on his right hand and had fallen from the motor cycle. At the same time, other appellant Chhotelal @ Sukhdev had beaten him by stone on his back due to which he sustained injuries. He had fallen from the motor cycle. Afterwards appellants have dragged him towards the bushes about 20 ft and he was again beaten by the appellants. He has stated that his son Vijendra Kumar Dubey, who was sitting on the back seat of the motor cycle had run away towards the village because of fear of appellants. 7. Vijendra Kumar Dubey (P.W.3) had also been examined, who has also supported the version of complainant Kunjbihari Dubey. No remarkable contradiction or omission have come on record during the cross examination of these two witnesses. 7. Vijendra Kumar Dubey (P.W.3) had also been examined, who has also supported the version of complainant Kunjbihari Dubey. No remarkable contradiction or omission have come on record during the cross examination of these two witnesses. The complainant Kunjbihari Dubey and witness Vijendra Kumar Dubey (P.W.3) have denied that because of rivalry for election of Sarpanch complainant was beaten by the appellants. They have also denied that the injuries were sustained, as a result of accident. 8. Complainant Kunjbihari Dubey has deposed that when he was beaten by the appellants he made noise and on hearing the noise Ramanuj Pandey and Munna had arrived on the spot and they have intervened and tried to save him. The prosecution has examined Ramanuj Pandey (P.W.4), who has also supported the version of complainant Kunjbihari Dubey by saying that when he was passing from the Railway gate, he saw the appellants beating the complainant Kunjbihari Dubey by wooden stick, which they were having in their hand. He shouted at the appellants and on hearing the appellants have fled away from the spot. He has also stated that after the appellants have run away from the spot, they have taken the injured Kunjbihari Dubey towards the main road. At the same time Muski Yadav, Manthu Yadav and Munna Kachi have arrived on the spot. He also called the family members of injured Kunjbihari Dubey and after their arrival he was sent to the hospital with them. 9. Manthu Yadav (P.W.1) had also been examined. He has also supported the case of prosecution. One another witness Laxman Prasad Dubey (P.W.2) had also supported the prosecution case. He is claimed to be the brother of complainant Kunjbihari Dubey. Although his presence is not testified by other witnesses at the place of incident, but he had supported the prosecution witnesses in chief examination, but in cross-examination in column no.13 he had admitted that when he reached on the spot, the appellants had already fled away from the spot. 10. As far as the injuries sustained by complainant Kunjbihari Dubey are concerned, Dr. N.K. Jasuja (P.W.7) had been examined by the prosecution. 10. As far as the injuries sustained by complainant Kunjbihari Dubey are concerned, Dr. N.K. Jasuja (P.W.7) had been examined by the prosecution. He has narrated in his examination that during the course of medical examination he had found one lacerated wound on the left hand, size 2 x 1 x ½ cm, another lacerated wound on right leg 5 x 1 x ½ cm, one injury on right hand with swelling and deformity, and one lacerated wound on the back side of head ½ x ½ cm. The MLC report of which is Ex.P-3. The same Doctor has also proved X-Ray plates of the complainant Kunjbihari Dubey and had stated in the examination that according to X-Ray plate Ex.P-6, a fracture was found on the radius bone of right hand and according to the X-Ray plate Ex.P-8 he had found the fracture of humerus bone of right hand and a fracture in the ring finger of left hand, regarding which the concerning Doctor has given report Ex.P-7 and Ex.P-9. During the course of cross-examination he had denied any possibility of injury due to falling on the ground. 11. On the evidence of Kunjbihari Dubey (P.W.5) it is clear that on the date of incident appellants have obstructed him for the purposes of extorting money from him, beaten him by wooden stick, by which he has sustained grievous injuries. The version of complainant Kunjbihari Dubey is also found to be supported by the statement of Vijendra Kumar Dubey (P.W.3) and Ramanuj Pandey (P.W.4). Dr. N.K. Jasuja (P.W.7) who have been examined regarding the injuries found on the person of complainant Kunjbihari Dubey, just after the incident had also deposed that during the course of medical examination the injuries were found on the person of complainant, out of which 2 injuries were of grievous nature because of fracture in different bones of complainant. The appellants have not shown any reason by examining any of such witnesses, who have created doubt that appellants have been wrongly impleaded in the said crime. Hence in my opinion the trial Court has rightly held the appellants guilty for offences punishable under section 341 and 329 of IPC. 12. Now the question is as to what sentence should be awarded to the appellants. 13. Hence in my opinion the trial Court has rightly held the appellants guilty for offences punishable under section 341 and 329 of IPC. 12. Now the question is as to what sentence should be awarded to the appellants. 13. As per the certificate appellant no.2 Chhotelal @ Sukhdev had remained in judicial custody for 4 years, 5 months and 4 days, while the other appellant Thanni @ Puranlal had spend 1 year 11 months and 11 days. At present both the appellants have been granted bail by order dated 19.4.2010 and 3.5.2010. The Court below have sentenced the appellants with maximum sentence of 10 years and fine prescribed in the Act. It is pertinent to mention that charges against the appellants was of extorting the money from the complainant and during the said act caused him grievous injury, but from the allegations and evidence, it is clear that no money has been extorted by the appellants during the course of said crime, so to punish the appellants with maximum sentence prescribed under the law is not justified or attributable. 14. In this view of the matter, the appeal filed by the appellants is partly allowed. Their conviction under section 341 and 329 of IPC is upheld. The accused/appellant No.1 Thanni @ Puranlal had already undergone sentence for 1 year, 11 months & 11 days, while appellant no.2 Chhotelal @ Sukhdev, had undergone the sentence for 4 years, 5 months and 4 days. In my considered opinion the sentence of both the appellants is reduced from 10 years to 1 year, 11 months & 11 days and to pay fine of Rs.1,000/- each, in default to undergo R.I., for 6 months. If any of the appellants are in jail in the crime in hand, they be released forthwith, if their presence is not required in any other case.