1 Cri. A. No.1278/2009 HIGH COURT OF MADHYA PRADESH : JABALPUR S.B. : HON'BLE SHRI JUSTICE S.C. SINHO Criminal Appeal No. 1278/2009 Bhiyan & another -Vs.- The State of Madhya Pradesh Counsel for the Appellants : Shri Ashish Tiwari, Advocate Counsel for the resp./State : Shri Akshay Namdeo, Panel Lawyer. J U D G E M E N T (14.12.2011) Appellants have filed this appeal u/s. 374 of Cr.P.C. being aggrieved by the judgment dated 25.6.2009 passed by Third Additional Sessions Judge, Tikamgarh in S.T. No.4/2005 whereby convicted appellant No.1 u/s. 323 of IPC and sentenced to to undergo R.I. for 3 months and appellant No.2 u/s. 325 of IPC and sentenced to undergo R.I. for 3 years and fine of Rs.500/-, in default of fine R.I. for 6 months. 2. As per prosecution case on 30.12.2003 at about 11 p.m. when appellant were cultivating the land of Sanjeev, he objected therefore appellant No.2 Fose armed with lathi and his father armed with axe alongwith acquitted accused Bhaiyan assaulted by kicks and fists as well as Fose assaulted with sword. 2 Cri. A. No.1278/2009 3. Learned counsel for the appellants submitted that appellant No.2 Fose has remained in custody from 25.6.2009 to 15.7.2009 i.e. 20 days. 4. Just after the incident Roznamchasana Ex.P/3 was lodged by Sanjeev Nayak. Injured Sanjeev and Arvind were referred to Community Health Centre, Prathvipur where Dr. M.K. Jain examined them and as per medical report Ex.P/5, 6 and 7 found abrassions on their body. Further Sanjeev was referred for X-ray. As per Ex. P/7 X-ray there was a fracture in his right knee. 5. As before this court the concurrent finding of conviction of the appellants u/s. 323 and 325 of IPC is not challenged, hence, the aforesaid findings are hereby affirmed. 6. With regard to sentence is concerned, admittedly, the appellant No.2 has remained in custody from 25.6.2009 to 15.7.2009 i.e. 20 days. No previous criminal conduct of the appellants has been proved by the prosecution. No fruitful purpose will be served by sending them for short term of sentence in jail. In these circumstances, the jail sentence awarded by the court below can be reduced to the period already undergone by them in jail by imposing the fine amount. 7. Resultantly, the appeal is allowed in part. The conviction of the appellant No.1 u/s. 323 of IPC is hereby affirmed but the sentence of R.I. for 6 months as awarded by the court below is hereby modified and instead thereof, the appellant is imposed with fine of Rs.1,000/- and the conviction of the appellant No.2 u/s. 325 of IPC is hereby affirmed but the sentence of R.I. for 3 years as awarded 3 Cri. A. No.1278/2009 by the court below is hereby modified and the appellant is sentenced to the period already undergone by him in jail (from 25.6.2009 to 15.7.2009), however, the fine of Rs.500/- enhanced to Rs.4,000/-. The fine amount be deposited within a period of 3 months, in default of payment of fine R.I. for 2 months. 8. With the aforesaid directions and modifications in the sentence, appeal stands disposed of. A copy of this order be sent to the trial court for information and compliance. (S.C. Sinho) Judge RC