HIGH COURT OF CHHATTISGARH AT BILASPUR Crimlnaj Revjsjon No,444 of 2006 Apoijcants Non-aDD||ca?Tt 1, Tularam aged 35 years, Son of Punuram Satnami, 2 Prem, aged 40 years, S/o Punuram Satnami, 3. Bhanu aged 22 years, S/o Hari Satnamj, All R/o vjlSage Tujsi Khaira, Police Station Kunda, Distnct Kabirdham Versus State of Chhattisgarh Throygh - Dlstrict ivlaglstrst®, Ksv^ardha, Dlstrict Kabirdham (C.G.) (Criminai revisjon under section 397 with Section 401 of Cr.P.C.) And M.Cr,C.No.3468of2006 ApoeJlant The State of C-G., Through: District SVSagIsSrat®.Kablrdham (C.G.) Versus Resoondents 1. Tuiaram S/o Punu Satnaml, Age about - 35 years, R/o - Vi!!age - Tulsl Khaira Thana - Kunda, District : Kabirdham (C.G.) 2. Prem, s/o Punu Satnaml, Age about - 40 years, R/o - VIIIage - Tusli Khalra Thana - Kunda, District: Kabirdham (C.G.) 3. Un Kumar. S/o Punu Satnami Age about - 30 years VISSage Tu3sj Khaira Thana Kunda, District: Kabirdham (C.G.) 4. Bhanu Ram, S/o Hari SatnamJ, Age about - 22 years, Viitage - Tuisi Khaira Thana - Kunda, District : Kabirdham (C.G.) (Appjicatlon for grant of leave to appeal under Section 378 (3) of Cr.P.C.) SB: Hon'ble Mr. T.P. Sharma^. Present: Mr.M.K.Bhaduri, counsel for the applicants in CrimJnal Revjsion No.444 of 2005 and counsei for respondents In M.Cr.C.No.34S8 of 2006. Mr.Rajendra Tripathi, PaneJ iawyer for the State in both cases. J_ ORDER(ORAL^ (Passed on 1§tn?,1arch, 2010) 1. Crlmlna! Revi,sion No.444 of 2006 and M.Cr.C.No.3468 of 2006 are belng dlsposed of by this common orcler. 2. By Crimina! R.evlslon No.444 of 2006. appllcants-Tularam, Prem, ar.d Bhanu have ch^Jlenged! the jegaljty & propriety of the judgment dated 21.7.2008 passed by the Sessions Judge, Kabirdham, in Criminal Appeaj No-15/2004, affjrming the judgment of convjction and order of sentence dated 30.5.2006 passed by the Judlcial Mlagistrate First dass, Kabirdham, in Crimina! Case No.557/2005, whereby learned Judicjal Magistrate First Class has convicted applicants under Sections 294 & 323/34 of the Indian Penai Code and sentencedl to pay fsne of Rs.200/- and rigorous imprisonment for three months & to pay flne of Rs 300/- to each of the appiicants, jn default of payment offine tofurther undergo rigorous jmprisonment for fifteen days. 3. Conv'ction is impugned on the ground that without there being any ©vidence and prove of ingredients of the offence, the Court below has convjcted and sentencedi the applicants as aforementloned. 4, 3y fjjjng an applicatjon under Section 378 (3) of Cr.P.C.; the State Govemment ha.s chailenged the acquitteS of the respondente under Sectlon 325/34 of the Indjan Pena! Code. 5>, Brief facts necessary for rijsposa! of this revision petltion and appiication for leava to appea? are that on 16,3.98, the appllcants used fllthy Sanguage to Kachra Bai (PVV-2) and assaulted her by stick and caused grievous injun^ She has lodged F.1 R vide ExP/IA She was examined by ttie doctor and foundt injuries The appljcants have also caused injury to Kruparam and caused grjevous hurt. Charge sheet was fiieci before the Judicial Magistrate First Ciass, Kabirdham Learned Judiciai Magistrate First Ciass after provjdjng opportunlty of hearing to the partles, convicted Sie applreants as aforementioned and reieasect one co-accused namely Un Kumar on probation Convlctlon & sentence was Ghalienged by the applloants before the Sessions Judge. Kabirdham and the same was affsrmed foy the judlgment Impugned. State Government has not filecS any appea! against the judgment passed by the Sessions Judge, Kabirdham. /^ -3- 6. I have heard iearned counse! for the parties, pemsed the judgment impusned, judgment of the JudiGiai yagistrate First CJass, Kabirdham and records of the Courts beiow. 7. Leamed counse! for the applicants submits that the State Government has not chaJSenged the judgment passed by the Sessions Judge, Kabjrdham, therefore, the fjnding of th©Sessions Judge has reached into finality and the petition filed on behaff of the State js not majntainable. Leamed counsei further submits that charge sheet of Seotion 294 ofthe Indjan Penai Code is very easy to make but js dlfficujt to refout, therefore, in these circumstances, th@ prosecution was reqi^ired to prove the charge of Sectlon 294 of the (ndian Penai Code by adducing cogent and clinching evidencei but the prosecutjon has not adciuced cogent and cllnchlng evidence. Leamed counsel contended that the Court below has convjcted the applicants under Section 323/34 of the Indjan Pena! Code, they are facing trial sjnce 1998 for more than 10 years, therefore, agaln sending the appiicants to jai! to serve short sentence would be futlie exerGlse and wiij not serve the purpose of criminal justice and the period already undergone would be suffscient sentence. 8. On the other hand, Jearned State counsel submlts that the Court beiou' has commjtted jllegaJlty by not convicting the appiicants under Section 325/34 of the Incjian Penai Code and the petition fiiied on behalf of the State is stitJ majntainab!e. 9. The present appiicants have been convicted and sentenced for the offence punishable under Sectlon 294 of the indian Penal Code The charge of Section 294 of the Indian Penal Code is very easy to make but is difficuit to rebut. !n these clrcumstances, the prosecution was under obligation to prove the aforesaid charge by adducing cogent and ciinching evldence The FJ.R. reveate that ths appiicants have used Shs \vords, ^?f ^??? ^ ^IT^t ^N 4S^dI ^^, but Kachrs Bai (PW-2), who has !odged ths F.I.R., has not supported the aforesajd words and she has deposod in her evidence that the applicants havs ussd the v.'ords, ^I-M^T. 'TT®.^'Nt, T?^t. Othor witnsssos have not supported the version ofthe F.i.R. The evidence relatjng to charge of Section 294 of the Indian Pena! Code is se!f contradictory and is safe to reiy. The Court below has not considered the aforesaid fact while convictlng the applicants under Section 294 ofthe Jndian Penaj Code. Conviction & sentence of the appticants under Section 294 of the Indjan Penal Code are not sustajnable under the iaw. .s?;:":w >'"';% %^- -J' - 4- 10. The appiicants have chaltenged their conviction under Section 323/34 of the jndlan Pena! Code before the Sessions Judge, Kabirdham. The Sessions Judge has considered that !eamed Judiclal Magistrate First Class has not taken into consideration the factum of grievous hurt caused by the applicants and djsmlssed the appea!. The State Govemment has not chaiSenged the findjng of the Sesslons Judge before this Court, aJthough they were party before the Sessions Judge and is havjng opportunlfy to chajlenge the same The evjdence adducecj on behalf of the prosecution relating to ca.usjng voiunterily slmpie hurt to the compiaJnant party by the applicants is based on substantiai evjdence sustainabie under the law. 11. As regards the question of sentence is concerned, appeal was dismissed vide judgment dated 21.7.2006 and the appliGants were reieased on 25.72006. thereby they were in custody for about 4 days. 12. Considering the mitjgatlng circumstances, the award of short sentence of only three months wou!d not ser/e any useful purpose. 13. Cons@quent!y, Crimlna! Revision No.444 of 2006 filed on behalf of the appiicante is partly allowed. Conviction & sentence of the appilcants undler Section 294 of th.e Indian Penal Cocie are hereby set aside However, convjction & sentence of the applicants under Section 323/34 of the Inctian Pena! Code are hereby maintained and instead of rigorous imprlsonment for three months and to pay fine of Rs.300/-, they are sentenced to the perjod already undergone and flne of Rs.500/- each; in defau!t of payment of fine to undergo rigorous jmDrisonment for one month. The petition for leave to appeai filed on behalf of the State is dlsmissecj. !t appears that the applicants have a!ready deposited fine of Rs.500/- (Rs,300/- + R.s.200/-) Fine deposited by the applicants for the offence punishabJe under Section 294 of the Indjan PenaS Code shail be adjusted in the fjne imposed to the applicants under Section 323/34 ofthe Indlan Penai Code. Sd/- T.P. Sharma Judge