PRAKASH KASHYAP Vs. STATE OF CHHATTISGARH AND OTHERS

JUDGEMENT

(1.) Challenge in this revision is to the order dated 3/12/2005 passed by the Additional Sessions Judge (F.T.C.) Kabirdham (Kawardha) in Criminal Appeal No. 12/2005 wherein quantum of sentence was interfered by the appellate court. Present revision is by the complainant.

(2.) Perusal of the order of the JMFC dated 27/08/2005 would show that Sukhlal (A-1) accused was convicted under Section 148, IPC and was sentenced to 6 months RI and further under Section 326, IPC sentenced to 3 years RI and fine of Rs. 5000/- and under section 25 of the Arms Act he was sentenced to 1 year SI and fine of Rs. 500/- was imposed whereas in respect of Ajit (A-2), Vijay (A-3) and Tularam (A-5) they were convicted under section 147, IPC and were sentenced to 6-6 months SI and under sections 326 read with 149 of IPC they were sentenced to 3-3 years RI and fine of Rs. 1000/-' "1000. It was further observed that in case fine of Rs. 5000/- is not paid by Sukhlal further he shall suffer sentence of 3 months SI and in lieu of default of payment of Rs. 500/-, 1 month SI was ordered whereas for rest of the accused it was observed that in absence of payment of fine of Rs. 1000/-' "1000 each under sections 326 and 149, IPC, to undergo additional imprisonment for 2-2 months each.

(3.) Case of the prosecution is that on 19/08/2003 complainant Prakash Kashyap the applicant, injured victim herein, at village Pendri Kurd when went to have his bath to pond and to answer call of nature while he was on his way Sukhlal (R-2) along with Ajit (R-3), Vijay (R-4) and Tularam (R- 5) came there. Thereafter Sukhlal stated that he was having bad eye on his (Sukhlal's) wife. In order to teach a lesson to victim Sukhlal firstly tried to make a assault by a knife. At the moment, the complainant tried to avoid the blow and in such process he initially sustained injury on his ear. Subsequently, Ajit (R-3), Vijay (R-4) and Tularam (R-5) caught hold of the complainant and Sukhlal chopped of penis of the complainant and thereafter fled away. In respect of the incident an FIR was lodged on 19/08/2003 at 7.30 at Police Station as Ex. P-1. After investigation of the incident a charge-sheet was filed in the court of JMFC Kawardha. The court of JMFC in a Criminal Case No. 18/2005 by an order dated 27/08/2005 sentenced the respondents/accused as aforesaid. Against such conviction and sentence an appeal was preferred by the accused Sukhlal and others. Appellate court of Additional Sessions Judge (FTC) Kabirdham (Kawardha) by its order dated 3/12/2005 in Criminal Appeal No. 12/2005 acquitted Sukhlal under Section 148, IPC whereas upheld the conviction of Sukhlal under Sections 326 read with 149, 147, IPC and 25 of the Arms Act whereas the other appellants/accused were convicted under sections 326 read with 149, 147 of IPC. In respect of the jail sentence of the accused appellate court observed that the appellants were in jail from 20th August, 2003 to 19/10/2004 meaning thereby 13 months and 29 days they had already spent in jail and it was held to be adequate. The reasoning were justified by the ground that in spur of moment of excitement the incident happened and one of the appellants were shown to be of 65 years for these reason the time spent in jail was held to be sufficient. Such judgment dated 3/12/2005 by the appellate court was subject of revision before this court.