Manohar Dass vs State of M.P. and Others

Brij Mohan Gupta, J.—The instant revision is for impugning the judgment dated 21-3-01 passed by Sessions Judge, Guna in Criminal Appeal No. 8/01, whereby the learned Judge has affirmed the conviction of the respondent Nos. 2 and 3 for the offence punishable under Sections 326/149,325/149 and 323/149 passed by Additional Chief Judicial Magistrate, Aron Camp Guna, in Criminal Case No. 398/99 vide judgment dated 27-12-00. Vide the aforesaid judgment dated 27-12-00, the learned Magistrate had imposed rigorous imprisonment for 2 years for the offence punishable u/s 326/149 of IPC, rigorous imprisonment for 1 year for the offence punishable u/s 325/149 of IPC and rigorous imprisonment for 6 months u/s 323/149 with fine of Rs. 2,000/-, 1,000/- and 500/- respectively to each of the respondent Nos. 2 and 3. While modifying the sentence vide impugned judgment, the learned Judge imposed the jail sentence to the extent already undergone by the respondent Nos. 2 and 3, i. e., for a period of 11 days and extended the fine sentence of Rs. 500/- in total and in place of total amount of fine of Rs. 3,500/-, Rs. 4,000/- has been imposed on each of the respondent Nos. 2 and 3.

Shri Sharma, the learned Counsel for the petitioner/complainant has drawn attention on the statements of Dr. K.K. Shrivastava (P.W. 1), Dr. Seetaram Raghuwanshi (P.W. 12) and has submitted that injured Mohandas sustained six injuries, injured Manohardas sustained 14 injuries and injured Balramdas sustained 6 injuries. Out of these injuries, fracture was detected in left ulna of Balramdas, right radius and third rib of Manohardas. Thus, total 26 injuries were inflicted by the respondent Nos. 2 and 3 out of which 3 injuries were grievous in nature. In view of this, the jail sentence is very meagure and reserves to be enhanced. He has further submitted that the revision is maintainable in view of the fact that u/s 397 of Cr.PC correctness of the sentence can also be looked into by this Court. In support he has drawn attention on a judgment of the Apex Court in Pratap Vs. State of U.P. and Others, .

Shri Bhardwaj, learned Counsel for the State has submitted that State has not preferred any appeal in this case for enhancement of the sentence.

Shri Bansal, learned Counsel for the respondent Nos. 2 and 3 has submitted that for the purpose of enhancement only State has a right to file an appeal as provided u/s 377 of Cr.PC and no appeal has been preferred by the State. In case such appeal is preferred, then under Sub-section (3) of Section 377 of Cr.PC the respondent Nos. 2 and 3 are entitled to plead for their acquittal or for reduction of sentence. The complainant can file a revision against acquittal but not for the enhancement of the sentence. In support, Shri Bansal has drawn attention on the judgments of Apex Court in Vimal Singh v. Khuman Singh and Anr. 1999 C LJ 16 and Sahab Singh and Ors. v. State of Haryana 1990 SCC 323.

As observed by the Apex Court in the case of Pratap (supra), the power of revision is one which the High Court can exercise suo motu and all that a person filing a revision petition under that section does is to draw the Court''s attention to an illegal, improper or incorrect finding, sentence or order of a Subordinate Court. Such powers are not affected by the fact that the revision petition is filed by a private person and not by the Government. This observation of the Apex Court is complete reply of the contention of Shri Bansal with this regard. In the judgment of Sahab Singh (supra), the Apex Court has observed that the High Court is competent to enhance sentence in exercise of its revisional jurisdiction in an appeal against conviction even if no appeal against sentence is filed by the State. In the case of Vimal Singh (supra), it is observed by the Apex Court that in an appeal against acquittal by the State High Court is having very limited jurisdiction. Interference is limited to exceptional cases, such as Trial Court''s order suffering from glaring irregularity or has caused miscarriage of justice or there was absence of jurisdiction to try the case or Trial Court has illegally shut out the evidence which should have been considered or where material evidence clinching the issue was overlooked. In both of these judgment no where it is observed that a complainant in a police case is debarred from filing a revision impugning the judgment of Court below from enhancing the sentence.

As observed by the Apex Court in Eknath Shankarrao Mukkawar v. State of Maharashtra AIR 1977 SC 1117 and in Nadir Khan Vs. The State (Delhi Administration), , the provision of Section 3F77 of Cr.PC does not exclude revisional jurisdiction of High Court to act suo motu for enhancement of sentence in proper cases. The provisions u/s 401 read with Section 386(c)(iii) of Cr.PC are clearly supplemental to th6se u/s 377 whereby appeals are provided for against inadequacy of sentence at the instance of the Government. Thus, it is clear that this Court can hear this revision filed on behalf of the complainant for enhancement of sentence passed by the Court below.

On perusal of the FIR and the judgments of both the Courts below, it appear that as per the prosecution case at initial stage 6 accused persons were tried. Out of them, four accused including the accused, who were allegedly carrying sharp edged weapon, have also been acquitted. The conviction u/s 326 of IPC is for causing grievous hurt by a sharp edged weapon or a like weapon and not by lathi or a blunt weapon. In view of this, the conviction of the respondents u/s 326/34 of IPC does not appear justified. Although there is no appeal against this conviction yet while dealing the instant case this Court cannot lose sight of these material facts. The incident is more than 10 years old. Although the learned Judge in the impugned order is silent on this aspect yet on perusal of Paras 11 to 16 of the judgment dated 27-12-00 passed by Additional Chief Judicial Magistrate, Aron, it appears that these two respondents had also sustained injuries in the incident which were not explained. On the statement of eye-witnesses Khooba (P.W. 6) and Kalla (P.W. 7), it is observed by the learned Magistrate that the aforesaid 4 accused persons, who have been acquitted, were not present at the place of incident at the time of incident. With regard to this fact, the other 4 witnesses including injured persons, who were brothers and uncle, have been disbelieved. It also appears that at the time of incident injured Mohandas fell into a pit and as per the medical evidence some of the injuries could be self inflicted or possible by fall. Although it is also observed by the learned Magistrate in Para 16 that both the respondents have inflicted the injuries with axe and lathi yet it is not clear how the possession of an axe can be attributed to the respondents when as per the case of the prosecution they were carrying lathis. Considering all these facts, enhancing the jail sentence does not appear justified. However, considering the number of injuries, fine amount is required to be enhanced. The learned Judge has imposed Rs. 4000/- on each of the respondents as a cumulative fine for all the offences. In view of this, bifurcating or awarding independent sentence of fine for each offence does not require at this stage. In my considered opinion, in the light of aforementioned facts, a fine of Rs. 10,000/-on each of the respondents for all the offences under which they are liable to be convicted, will serve the purpose of justice.

Consequently, the revision is partly allowed.

(1) Fine sentence is enhanced to the extent of Rs. 10,000/- on each of the respondent Nos. 2 and 3 for all the offences they have been or liable to be convicted.

(2) Out of the aforesaid amount, an amount of Rs. 10,000/- to injured Manohardas, Rs. 5,000/- to injured Mohandas and Rs. 3,000/- to injured Balramdas will be given as compensation.

(3) In case the enhanced fine sentence is not paid, each of the aforesaid respondents will serve three months rigorous imprisonment.

(4) The fine already paid or disbursed will be adjusted in the aforementioned sentence of fine and compensation.