Gendalal @ Gindu vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred this appeal against the judgment dated 2.11.1998 passed by the learned Additional Sessions Judge, Narsinghpur in S.T. No. 10/1993, whereby the appellant was convicted for the offence punishable under sections 325 and 341 of IPC and sentenced for 3 years'' rigorous imprisonment and 6 months'' simple imprisonment with fine of Rs. 200/-respectively. In default of payment of fine, simple imprisonment for 3 months'' was also directed. Prosecution''s case, in short, is that, on 16.7.1990, the victim Rajendra Kumar (P.W.1), went to the village Gotegaon to take some medicines. At about 4-5 p.m. in the evening, he was going back to his residence situated at village Simariya. Near the Railway crossing of Simariya, the accused persons met him. They threatened the complainant that why he had given evidence against them. The accused Sahab Singh held collar of his shirt and thereafter, all the accused persons assaulted him by sticks. The complainant Rajendra Kumar sustained so many injuries on his body. He was taken to the Police Station Gotegaon, where he lodged an FIR, Ex. P/1. He was referred to the Government Hospital, Gotegaon. Dr. S.K. Nema (P.W.7) examined the complainant Rajendra Kumar and gave his report, Ex. P/2. He found 14 injuries to the complainant. The complainant was referred for his x-ray examination. On x-ray examination, it was found that he sustained fracture of right ulna bone in his hand and right tibia and Fibula bone in his leg. After due investigation, a charge-sheet was filed before the JMFC, Narsinghpur, who committed the case to the Sessions Court and ultimately, it was transferred to the Additional Sessions Judge, Narsinghpur.

During the pendency of the trial, the accused Ramchandra and Sahab Singh had expired.

The appellant Gendalal abjured his guilt. He did not take any specific plea but, he has stated that he was falsely implicated in the matter. However, no defence evidence was adduced.

After considering the prosecution''s evidence, learned Additional Sessions Judge, Narsinghpur convicted the appellant for the offence punishable under sections 325 and 341 of IPC and sentenced him as mentioned above.

During the pendency of this appeal, the appellant Bharat has expired.

I have heard the learned counsel for the parties.

The learned counsel for the appellant has submitted that the appellant remained in the custody for 22 months at present and therefore, looking to his guilt and the custody period, he may not be sent to the jail again and his sentence may be reduced to the period, which he has already undergone in the custody. Fine imposed upon the appellant by the trial Court may be removed because the appellant is a poor person, who could not deposit the fine amount and in default of payment of fine, he shall again be sent to the jail for 3 months simple imprisonment unnecessarily.

On the other hand, the learned Panel Lawyer has submitted that the conviction and sentence directed by the trial Court appears to be correct.

After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case, it appears that the appellant Gendalal does not want to challenge the conviction directed against him. Only sentence is challenged. The appellant has claimed that he remained in the custody for 22 months. However, if his custody period is considered then, initially, he surrendered before the Magisterial Court on 12.4.1991 and he was released on bail on 22.4.1991. Thereafter, again he was arrested on 26.8.1997 and judgment was passed during his custody. In appeal, the bail order was passed in his favour on 5.3.1993. Again in pursuance of arrest warrant, he was arrested on 25.11.2011 and again a bail order was passed in his favour on 28.11.2011. Under such circumstances, it appears that he remained in the custody for 19 months approximately. It is apparent from the evidence adduced before the trial Court that 4 persons had assaulted the victim Rajendra Kumar by sticks, causing him a fracture in his right hand and commuted fracture in his right leg, that was the cumulative affect of the assault done by all the 4 persons. It is also apparent that the appellant faced the trial and appeal for the last 20 years and therefore, looking to his overt-act and period of pendency of the trial and appeal, 19 months sentence appears to be an appropriate sentence. Under such circumstances, it is a fit case, in which the appellant may not be sent to the jail again.

On the basis of the aforesaid discussion, the appeal filed by the appellant is hereby partly allowed. Conviction directed by the trial Court for offence punishable under sections 325 and 341 of IPC is hereby maintained but, sentence is reduced to the period, which he has already undergone in the custody. Fine imposed upon the appellant is also removed.

At present, the appellant is on bail. His presence is no more required before this Court and therefore, it is directed that his bail bonds shall stand discharged. Copy of the order be sent to the trial Court along with its record for information.