HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B: HON. SMT. SUSHMA SHRIVASTAVA, J.
CRIMINAL REVISION NO. 628/1998
Khadia and 2 others
Vs.
State of M.P.
Shri R.S. Patel, Advocate for the applicants.
Shri Umesh Pandey, Govt. Advocate for the respondent/State.
ORDER
(06.05.2010)
Applicants have preferred this revision against the
appellate judgment dated 08.05.1998, passed by First Additional
Sessions Judge, Tikamgarh in Criminal Appeal No.31/97,
whereby the conviction of the applicants under Section 326,
326/34 and 323 of I.P.C. recorded by Judicial Magistrate First
Class, Tikamgarh and sentences passed on them are affirmed.
2. As per prosecution allegations, on 09.05.1994,
about 9.30 P.M., at village Jaruva Khirak, when complainant
Mathuraprasad was lying on a cot in his house, applicants
Khadia, Kallu @ Pooran and Gumman came there and began
hurling abuses, applicant Khadia gave a spear blow to the
complainant on his left upper arm causing injury and fracture on
his left humerus bone. Applicant Kallu @ Pooran also gave him
a lathi blow, causing injury and bleeding from his nose. Upon
hue and cry, Jagdish, Birju and other people of the village came
to his rescue, then the applicants fled away. Injured
Mathuraprasad was rushed to the hospital, where he lodged the
report of the incident, on the basis of which, FIR in the form of
Dehati Nalishi was recorded and offence was registered against
the applicants at P.S. Kotwali, Tikamgarh and was investigated.
Upon medical and x-Ray examination of injured Mathuraprasad,
an incised wound on the upper third of left arm alongwith
fracture of left humerus bone, besides other simple injuries, were
detected. During investigation, spear used in the commission of
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the offence was recovered at the instance of applicant Khadia,
while lathi was seized at the instance of applicant Kallu @
Pooran. After due investigation, applicants were prosecuted and
were put to trial. Applicant Khadia was charged under Section
326 of I.P.C.,while the other applicants Kallu @ Pooran and
Gumman were charged under Section 326/34 of I.P.C. Applicant
Kallu @ Pooran was also charged under Section 323 of I.P.C.
3. After trial, learned Judicial Magistrate First Class,
Tikamgarh found applicant Khadia guilty under Section 326 of
I.P.C., while other applicants Kallu @ Pooran and Gumman were
found guilty under Section 326/34 of I.P.C. for causing grievous
hurt to complainant by means of spear. Applicant Kallu @
Pooran was also found guilty under Section 323 of I.P.C.
Learned Judicial Magistrate First Class, Tikamgarh sentenced
applicant Khadia to rigorous imprisonment for three years with
fine of Rs.500/- under Section 326 of I.P.C., whereas sentenced
other applicant Kallu @ Pooran to rigorous imprisonment for a
period of one year with fine of Rs.300/- for the offence under
Section 326/34 of I.P.C. and to rigorous imprisonment for a
period of six moths with fine of Rs.300/- under Section 323 of
I.P.C., also sentenced applicant Gumman to rigorous
imprisonment for a period of one year with a fine of Rs.500/-
under section 326/34 of I.P.C. vide judgment dated 21.03.1997
passed in criminal case No. 606/94 The sentences of applicant
Kallu @ Pooran were directed to run concurrently.
4. In criminal appeal preferred by the applicants against
the aforesaid order of their conviction and sentence passed by
Judicial Magistrate First Class, Tikamgarh, the appellate court
after considering the evidence on record, affirmed the conviction
and sentence imposed on the applicants and dismissed their
appeal by the impugned judgment, which has been challenged in
this revision.
5. Learned counsel for the applicants submitted that
the two courts below gravely erred in law and facts in convicting
and sentencing the applicant. He also submitted that the
sentence imposed on the applicants was too harsh.
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6. Learned counsel for the State, on the other hand,
justified the conviction and supported the findings recorded by
the courts below.
7. Impugned judgment and records of the lower courts
perused.
8. Now so far as conviction of applicant Khadia under
Section 326 of I.P.C. is concerned, there is a concurrent finding
of fact of the two courts below that the applicant caused grievous
hurt to complainant Mathuraprasad by means of a spear, a sharp
and pointed object in the left upper arm with fracture of humerus
bone. The aforesaid finding of fact does not suffer from any
infirmity in view of the evidence available on record, particularly,
the evidence of complainant Mathuraprasad (P.W.-1) and the
corroborative evidence of Kallubai(P.W.-2), Jagdish (P.W.-3),
Birju (P.W.-4) coupled with the medical evidence of Dr. N,.K.
Chourasiya (P.W.-6) and Dr. Bharatendu Kaithal (P.W.-7). Dr.
N.K. Chourasiya (P.W.-6) on medical examination of injured
Mathuraprasad on 09.05.1994 had found an incised wound of 1 x
½ x ½ size on the left upper arm of the complainant and advised
for X-Ray examination, besides three simple injuries on his
forehead and nose. In the opinion of Dr. N.K. Chourasiya
(P.W.-6), incised wound was caused by hard and sharp edged
weapon. Dr. Bharatendu Kaithal (P.W.-7), upon X-Ray
examination of the left arm of complainant Mathuraprasad also
found a fracture of his left humerus bone, corresponding to the
incised injury. The findings recorded against applicant Khadia is
based on sound reasonings and due appreciation of the evidence
on record. Thus, the conviction of applicant Khadia under
Section 326 of I.P.C. does not suffer from any legal or factual
infirmity, so as to call for any interference in revision.
9. There is also sufficient evidence on record that other
two applicants came alongwith applicant Khadia to the place of
complainant at night and applicant Khadia gave a spear blow to
the complainant in presence of other two applicants and applicant
Kallu @ Pooran also gave a lathi blow to the complainant. In
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view of the aforesaid facts, the finding recorded by the two courts
below that the other two applicants namely, Kallu and Humman
shared common intention with applicant Khadia of causing
grievous hurt to complainant Mathuraprasad by means of spear.
Thus, in view of the evidence available on record, the conviction
of Kallu @ Pooran and Humman under Section 326/34 of I.P.C.
as well as the conviction of applicant Kallu @ Pooran under
Section 323 of I.P.C. also does not suffer from any legal or
factual infirmity so as to call for any interference in revision.
10. As regards the sentence, learned counsel for the
applicants submitted that the incident of the case occurred in the
year 1994 and only a single injury by spear was caused to the
complainant and applicant Khadia has already suffered
imprisonment for nearly 3 months and 22 days, while other two
applicants have also suffered imprisonment for two months and
ten days, they should not be sent back to jail again after such a
long lapse of time. Learned counsel for the applicants further
submitted that complainant also compounded the offence with
the applicants out of court and an affidavit was also filed by him
in this behalf in this revision petition, though the application for
compounding the offence was rejected for technical reasons. He
also submitted that the factum of compromise should be taken
into consideration for reducing the sentence of the applicants and
the sentence of applicants be reduced to the period already
undergone by them. Reliance was placed in this behalf on the
decision of the Apex Court in (2002)9 SCC page 561 (Jalaluddin
Vs. State of U.P.) and (2005) 1 SCC page 343 (Bankat and
another Vs. State of Maharashtra).
11. Considering the submissions as advanced and the
facts and circumstances of the case, including the fact that the
incident of the case occurred about 16 years back and
applicants have already undergone imprisonment for few months,
interest justice would be subserved, if the impugned sentence of
imprisonment awarded to the applicants under Section 326,
326/34 of I.P.C. as also the sentence awarded to applicant Kallu
@ Pooran under Section 323 of I.P.C. is modified and reduced to
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the period already undergone by each of them with an additional
fine of Rs.1,000/- (Rs. One Thousand) each for the offence
under Section 326 of I.P.C. to be deposited by them within a
period of two months from today, failing which, they shall suffer
simple imprisonment for one month.
12. The additional amount of fine , if realised, shall be
paid to injured Mathuraprasad as compensation for the injuries
caused to him.
13. Revision stands allowed to the extent indicated
above.
(Smt. Sushma Shrivastava)
Judge
gn