Anter Singh Lodha vs State of M.P.

Subhash Kakade, J.—With the consent of the parties, the matter is heard finally.

Applicant Anter Singh has assailed the judgment dated 10th March, 2010 passed by learned Sessions Judge, Bhopal in Criminal Appeal No. 494/2009 arising out of order dated 30/11/2009 passed by learned Judicial Magistrate First Class, Bhopal in Criminal Case No. 1093/2004 convicting the applicant for the offence punishable under Section 326 of IPC and sentenced to undergo six months'' rigorous imprisonment with fine of Rs. 5000/- , in default of payment of fine, the applicant has to suffer one month''s additional rigorous imprisonment.

The prosecution case in short is that on 11/3/2004 the complainant when to his field where he saw a person running after the theft of food grains, the complainant followed the person and found that he was the present applicant. The applicant ran away to his house and complainant also reached to his house. Meanwhile, the applicant started abusing on him and caused injury by hard and blunt object. The police registered the crime for the offence punishable under Section 294, 323, 326 and 506-II of IPC. After investigation, police recorded the statement of the complainant and prepared the spot map and after completion of investigation charge-sheet has been filed.

In order to bring home the charges against applicant the prosecution examined seven witnesses and placed five documents on record. The defence examined two witnesses.

The learned Judicial Magistrate, First Class acquitted the applicant held the applicant guilty for the offence punishable under Section 326 of IPC and convicted and sentenced rigorous imprisonment of one year with fine of Rs. 1000/- with default stipulation. Thereafter, the applicant filed a Criminal Appeal before the Sessions Court and learned Sessions Judge affirmed the judgment of conviction passed by learned Judicial Magistrate, but allowing partly reduced the period of sentenced from rigorous imprisonment for one years to rigorous imprisonment for six months with fine of Rs. 5000/- with default stipulation.

Shri Ajay Singh, learned counsel for the applicant submits that the learned courts below have committed an error in holding the applicant guilty under Section 326 of IPC. It is also submitted that learned trial Court committed grave error in overlooking that there are material contradictions, omissions in depositions of prosecution witnesses. Fine amount has already been deposited. Finally, it is prayed that revision be allowed and the applicant be acquitted in respect of the offence punishable under Section 326 of the I.P.C.

Per contra, Shri Pradeep Gupta, learned Panel Lawyer for the respondent has submitted that after due appreciation of prosecution evidence, the learned courts below have found the offence proved against the applicant, which requires no interference.

Having heard learned counsel for the parties, gone through the impugned judgments passed by learned courts below and statements of prosecution witnesses particularly complainant Parasram (PW/1) and Dr. Mahesh Dixit (PW/5), I am of the view that no error has been committed by learned Courts below in recording the guilty of the applicant as mentioned hereinabove and in convicting him for the offence punishable under Section 326 of IPC on the basis of aforesaid witnesses.

Though other witnesses, Ajad Singh (PW/2), Naresh Singh (PW/3) and Bhagchand (PW/4) were declared hostile, but learned Courts below rightly came to the conclusion that testimony of Parasram (PW/1) is of sterling quality and can be the basis of conviction of the applicant and cannot be brushed aside on this simple reason that statement of investigation officer has not been recorded. Dr. Mahesh Dixit (PW/5) has also supported the case of the prosecution.

Other discrepancies which have been highlighted do not really earn the status of contraction to make the evidence of these witnesses impeachable, incredible or not beyond reproach. Therefore, the present revision is likely to be dismissed on its merits.

Now, the question arises that as to how a balance should be struck and maintained in regard to the sentence.

About 10 years have been elapsed from the date of incident i.e. 11/03/2004. It is pertinent to mention here that 40 years old agriculturist applicant Anter Singh Lodha was under custody for a period of 02 days during trial and was under custody from order dated 11.03.2010 to 07.04.2010 when he was released on bail by this Court.

It is pertinent to mention here that an application under Section 320(2) of Cr.P.C. with the application for permission for compromise was filed before the trial Court, which was partly allowed and the applicant was acquitted from the charge punishable under Section 506-II of IPC and as the offence punishable under Section 326 of IPC is not compoundable, the same was rejected partly.

Considering the above facts and circumstance of the case and also taking into consideration that the present applicant had already suffered jail sentence of about one month, I am of the considered view that the instant case more importance sentence should be that applicant Anter Singh Lodha should be sentenced to the period already undergone by him; namely about one month against the actual imprisonment as he was punished for rigorous imprisonment of six months with fine of Rs. 5000/- . The fine amount has already been deposited.

In the result, upholding the order of conviction recorded by the learned courts below, I reduce the sentence awarded to the applicant to the sentence already undergone by him. The revision is to that extent allowed and the impugned judgment modified. The applicant is on bail, his bail bonds stand discharged.