SHYAMBABU YADAV Vs. STATE OF M P

JUDGEMENT

(1.) Being aggrieved by the judgment of conviction and sentence dated 18thJune, 2010 passed in Criminal Appeal No. 200/2008 by the Sessions Judge Vidisha (M.P.), thereby the Appellate Court confirmed the judgment of conviction and sentence dated 12th August 2008 passed in Criminal Case No.616/ 2004 by the Chief Judicial Magistrate Vidisha, maintaining the conviction of the petitioner/accused fot commission of offence under Section 327 of I.P.C and sentence of 5 years' rigorous imprisonment with fine of Rs. 5000/- and in default to serve six months' additional rigorous imprisonment and also conviction under Section 332 of I.P.C. and sentence of three years' rigorous imprisonment with fine of Rs. 3000/-and in default to serve four months additional rigorous imprisonment, the petitioner has preferred present criminal revision under Section 397/401 of the Code of Criminal Procedure 1973.

(2.) The facts, just for the decision of this revision, are that on 12th May 2004 at around 3 p.m., at Toppura Vidisha, the accused/petitioner Shayarn Babu Yadav and Kaiyan Singh Raikwar (acquitted in criminal appeal supra) along with 5-6 other persons entered in the Wine Shop run by the Excise Department and asked Rambabu Dubey (PW-3)who was deputed and working as Salesman in the said liquor shop, to provide them a liquor free of costs. When Rambabu refused them to supply liquor without payment, they got annoyed and by throwing the crate of having 78 bottles of Country Masala iiquor, they damaged the bottles and wastage the liquor. On resistance by the Salesman Rambabu, the accused petitioner Shayam Babu Yadav assaulted him by broken bottle of liquor and caused injury on his head. The incident was informed to the Assistant Excise Officer Shri Mohan Singh (PW-1). He reached on the spot and after inspection of the spot, he sent the letter to SHO of Police Station Kotwali Vidisha. The FIR, on written report of Mohan Singh, was written and the crime was registered against the accused-persons. The injured was medically examined by Dr. R.S. Sharma (PW-5), who stated that on the day of incident at about 6-20 p.m., he examined the injured and found one incised wound of size 2" x 1/4 x 1/4 over right parietal region, just lateral to-mid parietal region, bleeding was present and one contusion in 50 paise coin shape over occipal region of scalp. According to doctor, injury No.l was caused by sharp cutting object whereas Injury No.2 by hard/blunt object. The duration of the injuries within four hours. He opined that the injuries were in simple in nature. The injury report is (Ex. P/5).

(3.) After investigation, the charge-sheet was filed before the trial Magistrate. On framing charge, the prosecution evidence was recorded. After assessment of the evidence of the prosecution as well as of the defence and looking to the oral and documentary evidence, the learned trial Magistrate convicted the accused-appellants Shyam Babu Yadav and Kalyan Singh for the offences under Sections 451, 327/34, 332/34 and 427/34 of I.P.C. and sentenced them accordingly. However, on appeal by both the accused against their conviction and sentence, the appellate court, acquitted the appellant Kaiyan Singh from the alleged offences. So far as accused-appellant Shyam Babu is concerned, he was acquitted of the charges under Sections 451 and 427 of I.P.C. but conviction for offence under Sections 327 and 332 of I.P.C. and sentence thereon was confirmed, hence, this appeal.