CHAMRA Vs. STATE OF C G

JUDGEMENT

(1.) This revision is directed against the judgment dated 05-03-2003 passed by the Additional Sessions Judge (FTC) Kawardha in Criminal Appeal No. 44/2002 whereby and whereunder while dismissing the appeal filed on behalf of petitioner Abhay Ram and partly allowing the appeal filed on behalf of other two petitioners namely Chamra and Parmeshwar against order dated 25-02-2002 passed by Judicial Magistrate First Class, Kawardha in Criminal Case No. 162/2001, conviction and sentence awarded to petitioners Chamra and Parmeshwar were modified in the following manner:--

(2.) Conviction and sentence is challenged on the ground that courts below have committed illegality by convicting and sentencing the petitioners in absence of admissible evidence and material sufficient for warrant conviction.

(3.) Learned counsel appealing for the petitioners submits that there was free fight between the parties, petitioner Chamra also sustained injuries in that incident. A counter criminal case lodged against the victims of this case, the same trial court has tried the counter case in which the victims too are convicted and they are ultimately acquitted by the appellate court. There are omissions and contradictions in the statement of the witnesses. The witnesses are not supporting over material points to each other. Learned counsel for the petitioners further submits that for conviction under Section 326 of the IPC, it is required that the act should be voluntarily to cause grievous hurt by dangerous weapon or means is mandatory. In this case, weapon used by the petitioners was axe and battle axe which is not a dangerous weapon. The witnesses are near relatives of the victims. Witnesses are interested witnesses. There was no intention to cause grievous hurt to the victims and the petitioners are near relatives, they are residing in near vicinity, their fields are connected. The incident took place on a petty cause. After the incident, both parties are living in a cordial relation. There was no dispute after the said incident. The doctor opined that there could be no death on account of injuries received by victim Rajaram. Dr. R.P. Nonhare (PW-1) opined that there was fracture in radius ulna and also there was fracture in the lower part of left ulna. Those injuries can be caused in a scuffle. Narmada (PW-4) admitted that a criminal case is also launched against him. There are material omissions and contradictions in the statement of the witnesses also variations appearing which are material. Incident took place on account of two buffalo reached to victims' field and kothar when they attempted for sending them out from their field, the incident took place. Learned counsel for the petitioners also submits that petitioner Chamra and petitioner Parmeshwar already served in three different occasions about 34 days in jail towards the execution of jail sentence. Date of incident is 29-07-1999. The incident is about 15 years old, there is no criminal antecedent of the petitioners, the petitioners are not involved in any other criminal litigation even after this incident. It is further prayed that revision petition be allowed and the judgment and sentence awarded against the petitioners be set aside. Inter alia, it is further submitted on behalf of the petitioners that petitioners be released by sentencing them for the period already undergone by them, for which reliance is placed upon the matter of George Pon Paul vs. Kanagalet and others, 2009 3 CCSC 1352 (SC), in which while convicting the appellant under Section 326 of the IPC, the trial court sentenced him confinement till rising of court and fine with default stipulation and the High Court while maintaining the conviction, enhanced the sentence, i.e., sentenced him to undergo rigorous imprisonment for two years in addition to the fine imposed. Hon'ble the Supreme Court decided the matter and held that the case called for interference since fine amount was deposited and paid to victim, hence the sentence restricted to the period already undergone.