SWADESH Vs. STATE OF MP

JUDGEMENT

(1.) BOTH the Courts below have concurrently found the petitioner guilty under S. 325/34 of the Indian Penal Code (Code for short) and the appellate Court has reduced the punishment to six months R.I. and a fine of Rs. 1,500/ - in default to further undergo R.I. for two months from R.I. of two years and a fine of Rs. 750/ - and in default to undergo R.I. for one month as was awarded by the trial Magistrate.

(2.) THE prosecution case is well proved by statement of Shyam Mohan Shivhare (PW 3), the complainant who had seen the petitioner and co -accused with another Bhupendra with Lathis and one of them hitting him on head from behind. His brother Sitaram Shivhare (PW 4) has supported him to the extent that complainant was assaulted and was injured. The complainant was immediately taken to the hospital. Story is supported by FIR P/8 in which name of the petitioner is also there as one of the assialants. Dr. Rakesh Sharma (PW 8) has noted three lacerated wounds on head of the complainant vide Ex. P/14. Dr. Govind Singh (PW 2) noted a fracture on right parietal bone vide Ex. P/2, X -ray report with Ex. P/3 and P/4, X -ray plates. Though of course, Harvilas Shivpuri (PW 1), Naresh Kumar Shivhare (PW 5) and Shibba (PW 6) have not supported the prosecution case. They have been declared hostile by the learned public prosecutor. They have been cross -examined and confronted with their previous statements recorded by the Investigating Officer. Shiv Singh Bhadoriya (PW 7), the Investigating Officer has specifically claimed that he had examined all these three prosecution witnesses and had recorded their statements correctly. The Courts below have not erred in disbelieving these three hostile witnesses who had merely shown their ignorance from the occurrence and have not attributed the injuries caused to the complainant to any other person then the petitioner and co -accused.

(3.) BRAWL took place on 28.1.88. More than 14 years have passed since then. Though of course, fracture of praietal bone of head was caused, the petitioner has been in Jail for more than one month. His advocate has claimed that he be released on probation. Chandeshwar Sharma v. State of Bihar [2000 [I] MPWN 136], Shanti Kumar v. State of M.P. [1998 (1) MPWN 134], Ramdin v. State of M.P. [1986 C.Cr. J. (MP) 57], Dularelal v. State of M.P. [1989 C.Cr.J. 68] and Mayaram v. State of M.P. [1989 C.Cr.J. NOC 9] have been relied upon. In the facts and circumstances of the case, it would not be proper to send the petitioner once again to Jail after elapse of long period more than 14 years. Hence, his jail sentence is set aside. He be released on probation of three years on his furnishing a personal bond for Rs. 3,000/ - with one solvent surety in the like amount binding himself to be of good behaviour and not to commit any breach of peace in this period and not to commit any offence in this period. In case of default or breach of any condition of the probation bond, the petitioner shall be liable on being noticed by the trial Magistrate to undergo the jail sentence to be awarded by that Court keeping in view the decision of the appellate Court. The petitioner shall further pay a compensation of Rs. 2,000/ - to the complainant Shyam Mohan Shivhare (PW 3). This order is substituted for the sentence awarded by the Courts below. Revision allowed in part. Conviction of Chhuna alias Anupsingh (P -2) is maintained. Anyhow, sentence modified.