Ram Bharosey and Others vs State of U.P.

V.P. Mathur, J.—This Criminal revision is directed against the judgment and order passed on 1-9-1984 by Mr. D.N. Shukla, the then Sessions Judge. Farrukhabad. The learned Judge was disposing of the criminal appeal No. 330 of 1983 and it was against the judgment and order of Mr. Daljinder Pal Singh 1st Addl. Munsif Magistrate, Kannauj, Farrukhabad dated 22-7-1983 through which the present revisionists had been convicted under Sections 323/34 and 325/34 IPC and sentenced to three months rigorous imprisonment each on the first count and one year''s rigorous imprisonment each on the second count. The learned Magistrate had directed the sentences to run concurrently.

By his impugned judgment dated 1-9-1984 the learned Sessions Judge. Farrukhabad mentioned in one of the paragraphs in the body of the judgment that the appeal shall tail on merits, but in the operative portion he allowed it in part, maintained the convictions u/s 325/34 IPC, but reduced the sentence to imprisonment for six months and fine of Rs. 500/- for each of the Appellants and further directed that in default of the payment of fine, the defaulter shall undergo three months rigorous imprisonment. In this manner as a result of the disposal of this appeal, the conviction and sentence u/s 323/34 IPC were not maintained. At least the operative portion of the judgment does not speak about the same.

At the very out-set I may say that the judgment of the learned Sessions Judge is cursory and telegraphic. He has also made a mistake in not specifically mentioning as to how he has dealt with the convictions and sentences u/s 323/34 IPC. There is no government appeal in this case and therefore, this Court will not be in a position to restore the Magistrate''s order regarding conviction u/s 323/34 IPC and the sentences passed thereunder. We will have to limit ourselves to the consideration of the judgment of Mr. D.N. Shukla passed on 1-9-1984. It was a case in which the learned Judge should have been called upon to explain his position about this abnormality in his judgment. But I am told that he is already dead and therefore, nothing can be done. On merits I have gone through the entire record. The learned Sessions Judge has rejected the testimony of two witnesses namely Ramesh PW3 and Nazim Farid P W 2 on the record but the learned Judge has wrongly mentioned him as PW 5. Even after discarding these two testimonies, the statements of the two witnesses who are victims of the assault remain intact and are supported by the medical evidence, which has been brought on the record. The learned Counsel has argued that there is confusion about the place of occurrence I have very carefully gone through the statements of the witnesses and I find that there is no such confusion in the case.

The position according to the site plan Ext Ka-9 is that the main door of the house of the complainant Krishna Kumar son of Ramdass opens towards south on a raised platform, and below this chabutara on its south west corner there is a pit in which the daily use and rainy water from the house collects. It was when this pit was being cleaned by Krishna Kumar, that the marpit started. When Ramdass entered the witness -box, he simply showed his inability to give the correct directions He speaks about the chabutara. the main door and this pit but says that they are towards the north of his house. According to him even his main door is towards the north. This is no body''s case. What appears is that this witness is confused about the directions. Towards the back of the house which will be north, there is open land. The dispute between the parties, about which a litigation is going on, is perhaps about the open land which is towards the south of the Rasta in front of the house of the complainant. In the site-plan this Rasta has been shown The Civil Court''s litigation-papers have not been placed on the record It appears that there is no dispute about this Naabdan and it is not in litigation. Under these circumstances, the argument that the revisionists were in possession over this Naabdan and hence when an attempt was made to clean it, they were within their right to defend, is of no avail. The learned Sessions Judge aswell as the learned Magistrate have also discarded that story.

Injuries had been sustained by both the father and the son and the two doctors have been examined in this case along with their reports. The case is satisfactorily proved beyond doubt and in my opinion, the sentences awarded also can not be said to be harsh. The learned Sessions Judge has already reduced the sentence u/s 325/34 IPC. The case does not require any further re-consideration on the question of sentence, on which point alone the revision was admitted.

In the result, the revision fails and is heredy dismissed. The order dated 20-9-1984 is withdrawn. The bail bonds and surety deeds furnished by the revisionsts shall stand cancelled and they shall surrender before the Magistrate concerned to undergo the sentences awarded to them u/s 325/34 IPC. The amount of fine, if not already paid, shall be paid within a period of one month from today, failing which the learned Magistrate shall proceed with the realisation thereof according to law.

Revision dismissed.