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Judgment
S.R. Waghmare, J.—This appeal has been filed u/s 374 of the Cr.P.C. being aggrieved by the judgment dated 21.04.2001 passed by Special Sessions Judge, Indore in S.T. No. 577/1993, whereby appellant No. 1 Chunnilal and appellant No. 3 Sanjay have been convicted for offence punishable u/s. 324 and appellant No. 2 Savitribai has been convicted for offence punishable u/s. 324 r/w. 34 of the IPC and sentenced to 2 1/2 years rigorous imprisonment with fine of Rs. 500/- each and in default they were to undergo further 1 1/2 months rigorous imprisonment. Brief facts necessary for elucidation are that on the date of incident i.e. 04.09.1992 complainant Bherulal in front of his house was cleaning his vehicle Luna at the same time accused Chunnilal came with sword and assaulted Bherulal on his head and the accused Sanjay came with dharia and accused Savitri came with sword and they all were assaulted Bherulal. The prosecution witness Shyamabai (P.W.12) interrupted to save Bherulal then the accused assaulted her also. Prior to six months of this incident, due to suspicion that the gas cylinder had been stolen by Bherulal the incident occurred. The wife of the Bherulal, Manoramabai (P.W.4) had taken to the injured Bherulal to hospital along with Shyamabai by rickshaw. The report was lodged by (P.W.4) Manoramabai at Police Station M.I.G., Indore and on the basis of Dehati Nalishi the FIR was filed by A.S.I. Shriniwas Tiwari (P.W.15). The spot map was prepared. On the same date, appellant No. 2 Savitribai lodged the report on Rojnamacah Sanha No. 322/92, that complainant Bherulal assaulted accused Chunnilal and Savitribai by sword and in the scuffle that ensued accused Bherulal and Shyamabai also received injuries. After the investigation, police registered the counter case at Crime No. 682/92 for offence u/s. 324 of the IPC. After framing of charge and recording of evidence, appellants were convicted as stated above, hence the present appeal.
The accused appellants abjured their guilt and stated that they were falsely implicated in the matter. The Trial Court on considering the evidence, convicted and sentenced the accused as hereinabove indicated and hence the present appeal.
Counsel for the appellants has vehemently stressed the fact that according to Dr. Chandravanshi (P.W.14) and Dr. Bhatnagar (P.W.2) submitted that appellant Chunnilal received discontinuity/fracture in the little finger of left hand and his version is supported by the statement of D.W.1 Dr. Ratnesh Gite. This fact is also proved by the statement of accused Savitribai (P.W.1) Chunnilal (P.W.3), Sanjay (P.W.4), which was recorded in counter case No. 263/1995. This version is also proved by A.S.I. Shriniwas Tiwari (P.W.15). Counsel submitted that as per the statements of all these witnesses, accused as well as complainant sustained injuries in the incident. Counsel has urged that the conviction is contrary to the principles of law. The Court below has failed to appreciate the evidence and there are material omissions and contradictions in the testimony of the material prosecution witnesses. Counsel stated that according to (D.W.1) Dr. Ratnesh, accused Chunnilal had sustained a fracture in left hand''s little finger, which is an old fracture, it was not occurred in this dispute. However, the prosecution has been unable to prove the offence under Sections 324 and 324/34 of the IPC. Counsel also stated that the appellant No. 1 Chunnilal and appellant No. 3 Sanjay have almost undergone custodial sentence 28 days respectively and appellant No. 2 Savitribai has almost undergone custodial sentence 03 days for offence u/s. 323 of the IPC. Counsel prayed that the appeal deserves to be allowed and the conviction for offence under Sections 324 and 324/34 of the IPC deserves to be set-aside. In alternate Counsel has prayed that if the Court is satisfied regarding the conviction the custodial sentence be reduced to the period already undergone.
Counsel for the respondent/State has per contra stated that all the weapons were recovered from the accused persons and according to x-ray report complainant Bherulal sustained injury on his skull and fracture of little finger of the left hand as well as Shymabai also sustained injury on her skull. The clothes of the complainant Bherulal and Shyamabai were sent to F.S.L. at Sagar and it was found that all the accused committed the offence. Counsel submitted that the judgment of the Trial Court is in accordance with law and does not require any interference and the appeal filed by the appellants be dismissed.
On considering the above submissions, I find that the impugned judgment is based on valid and cogent reasons and proper marshalling of evidence and no infirmity can be found with the impugned judgment of the Trial Court. I have no hesitation in upholding the conviction for the accused for offence under Sections 324 and 324/34 of the IPC. However, considering the fact that the appellants Chunnilal and Savitribai were an old persons aged 55 years approximately at the time of the incident and the appellant No. 3 Sanjay was 30 years of age the fact that the accused have undergone some of the custodial sentence, the alternate prayer of the Counsel for the appellants being limited and reasonable is allowed in the interest of justice. The custodial sentence is reduced to the period already undergone. However, the fine amount is further raised by Rs. 3000/- each which shall be deposited by the accused appellants in the Trial Court and paid to the injured/complainant Bherulal and Shyamabai equally as compensation u/s 357 of the Cr.P.C. within a period of two months from the date of this judgment. On failure to pay the fine within the stipulated period and the appellants shall undergo the remaining sentence as directed by the lower Court.
With the aforesaid modification the appeal is partly allowed to the extent herein above indicated. Appellants are on bail. Their bails bond and surety bonds are hereby discharged. A copy of this order be sent to the concerned lower Court for compliance.
Cc. as per rules.