^ 8>»« 'w^ HIGH COURT OFCHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shvam Sharma Criminal Appeal No.624 of 2004 Ajay Rajak and another versus State of Chhattisgarh JUDGMENT Postfor 27-08-2012 Sd/- R.S. SIsarma Judee :\ s . vassr HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Radhe Shvam Sharma, J. Appellants Respondent Criminal Appeal No.624 of 2004 1. 2. versus Ajay Rajak, S/o Sohan Rajak, aged about 27 years, R/o Chandan Awas, Rajkishore Nagar, Bilaspur, P.S. Sarkanda, Distt. Bilaspur (Chhattisgarh) Monu @ Mukund Narayan Tiwari, S/o Chhotelal Tiwari, aged about 27 years, R/o Dipupara Tarbahar, P.S. Tarbahar, Distt. Bilaspur (C.G.) State of Chhattisgarh Present: Shri UKS Chandel, counsel for the appellants. Shri Sandeep Yadav, Deputy Government Advocate for the State/respondent. Criminal Appeal under Section 374(2) of the Code of Criminal Procedure. JUDGMENT (Delivered on-^'7 Au.qust, 2012) This appeal is directed against judgment dated 21-07-2004 passed by 9 Additional Sessions Judge (FTC), Bilaspur in Sessions Trial No.463/2003. By the impugned judgment, accused persons/ appellants Ajay Rajak and Monu @ Mukund Narayan Tiwari have been convicted and sentenced in the following manner with a direction to run the sentences concurrently:- Appellant No.1 Ajav Rajak Conviction Sentence Under Section 323 IPC Rigorous imprisonment for 4 months Under Section 326/34 IPC Rigorous imprisonment for 3 years and •'-•'"Z'"t'*y ^sfiSh ^ •<^ fft' '".:...-Jt."'7' to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 4 months. Appellant No.2 Monu @. Mukund Naravan Tiwari ifjaaii Conviction Under Section 323 IPC Under Section 326 IPC Sentence Rigorous imprisonment for 4 months Rigorous imprigonment for 3 years and to pay fine of Rs.1,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 4 months. 2. Case of the prosecution, in brief, is as under:- Prior to the incident, on the occasion of Holi festival, some dispute took place between Bhagwat Prasad (PW-8) and appellant No.2 Monu @ Mukund Narayan Tiwari for a sum of Rs.50/-. On 28- 05-2003, at about 8:30 pm, Bhagwat Prasad (PW-8) was returning from the house of his friend Umesh Yadav to his house. When he reached near the vegetable shop of his aunt Rambai (PW-4), the appellants came towards Nalanda School on motorcycle and they assaulted Bhagwat Prasad (PW-8) with Bhujali. He sustained injury on his wrist, back and ribs. Blood was oozing out and he became unconscious. The incident was witnessed by Shambhu Prasad (PW- 10), who is brother of Bhagwat Prasad (PW-8). Shambhu Prasad (PW-10) tried to intervene. Appellant Monu @ Mukund Narayan Tiwari assaulted him with Bhujali. Shambhu Prasad (PW-10) sustained injury on his abdomen and back. Intestine had come out. He ran away towards his house and fell down on the way. Rambai (PW-4) lodged FIR (Ex.P-5) in Police Station, Tarbahar, Bilaspur, where Crime No.190/2003 under Section 307/34 IPC was registered. -v^ Bhagwat Prasad (PW-8) and Shambhu Prasad (PW-10) were sent to Chhattisgarh Institute of Medical Sciences, Bilaspur (CIMS) for medical examination vide Ex.P-12 and P-13, respectively. Dr. C.S.Patel examined both the injured persons and gave his report vide Ex.P-20 and P-21 respectively. Shambhu Prasad (PW-10) was admitted in CIMS, Bilaspur. Dr. Vikram Khetrapal (PW-12) examined him and gave his report (Ex.P-19), in which he found stabbed incised wound over abdomen and other injuries on the body of Shambhu Prasad (PW-10). He opined that the injuries were grievous in nature and dangerous to life. In further investigation, memorandum statement of appellant Monu @ Mukund Narayan Tiwari was recorded underSection 27 of the Evidence Act vide Ex.P-8 and at his instance, Chhuriwas seized vide Ex.P-10. Memorandum statement of appellant Ajay Rajak was also recorded under Section 27 ofthe Evidence Act vide Ex.P-9 and at his instance, Chaku was seized vide Ex.P-11. Site map was prepared vide Ex.P-14. The appellants were arrested vide arrest memo Ex.P-15. After completion of the investigation, charge sheet was filed against appellants Ajay Rajak and Monu @ Mukund Naryan Tiwari in the Court of Chief Judicial Magistrate, Bilaspur, who, in turn, committed the case to the Court of Session at Bilaspur, from where, it was received on transfer by 9 Additional Sessions Judge (FTC), Bilaspur, who conducted the trial and convicted and sentenced the appellants as mentioned above. -c';i.. "!s. s-.,v "l^r';^ 1 l.,,.fe*3fgff® IdiaiaS'P9135''*''5'' -^^^1 WVfSS'SSStWK 3. Shri UKS Chandel, learned counsel for the appellants submitted that he is not pressing this appeal on merits and he would confine his arguments only to the sentence part of the impugned judgment. 4. As regards the sentence, learned counsel for the appellants argued that the incident took place on 28-05-2003, the case is pending for about 9 years, appellant Monu @ Mukund Narayan Tiwari is posted as Executive - Receivables (VF) in Chola Business Services Limited and the appellants remained in custody from 09-09- 2003 to 21-07-2004, i.e., for about 10 months and 12 days. Therefore, instead of sending them back to jail, they may be sentenced for the period already undergone by them. Learned counsel for the appellants placed reliance on Venkategowada and others vs. State of Karnataka, (2007) 2 SCC (Cri) 160 and Naib Singh vs. State of Punjab, AIR 1986 SC 2192. 5. Learned Deputy Government Advocate for the State/respondent opposed the above arguments. 6. In the instant case, the appellants remained in custody from 09-09-2003 to 21-07-2004, i.e., for about 10 months and 12 days. In Manjappa vs. State of Karnataka, (2007) 6 SCC 231, the appellant was convicted under Sections 323 and 325 IPC and he remained in custody for about 15 days. The Hon'ble Supreme Court reduced the substantive sentence to the period already undergone by him and directed to pay additional amount of Rs.10,000/- as compensation. L. .! t • • " ^:3-..«<- ' /• V'^it 7. In Naib Singh vs. State of Punjab, AIR 1986 SC 2192, the Hon'ble Supreme Court held thus: "Conviction of accused for causing of fracture of skull Sentence Accused teacher in Govt. School Injury caused in heat of moment Incident Taking place 13 years back Sending accused to jail would not be proper Sentence of 1 year's R.l. reduced to imprisonment till rising of Court and fine of Rs.5000/- imposed." 8. Considering the facts and circumstances of the instant case and in light of the above judgments, 1 do not feel it appropriate to send the appellants back to jail. 1 am of the view that ends ofjustice would be met if, while upholding the convictionof appellant Ajay Rajak under Sections 323 and 326/34 IPC and conviction of appellant Monu @ Mukund Narayan Tiwari under Sections 323 and 326 IPC, the jail sentence awarded to them is restricted to the period already undergone by them besides imposing/enhancing the amount offine. 9. In the result, the appeal is partly allowed. The conviction of appellant Ajay Rajak under Sections 323 and 326/34 IPC and the conviction of appellant Monu @ Mukund Narayan Tiwari under Sections 323 and 326 IPC are upheld. However, the jail sentence awarded to them is reduced to the period already undergone by them. So far as the sentence of fine is concerned, fine of Rs.500/- is imposed upon each of the appellants for the offence under Section 323 IPC and the amount of fine is enhanced from Rs.1,000/- to Rs.10,000/- for each of the appellants for the offence under Sections 326/34 IPC and 326 IPC respectively. The appellants are granted 3 :/'.•..?<"' -< ''••&L;.?"";"•'' * €) months' time to deposit the above amount of fine, failing which, they shall be liable to undergo rigorous imprisonment for 2 months for each count. If any amount is already deposited towards fine, the same shall be adjusted in the amount of fine imposed and enhanced by this Court today. Out of the total amount of fine, if deposited, Rs.8,000/- shall be paid to Shambhu Prasad (PW-10) and Rs.4,000/- shall be paid to Bhagwat Prasad (PW-8), as compensation. Sd/- R.S. Sliarma Judse