BANSHIDHAR Vs. STATE OF M.P.

JUDGEMENT

(1.) THE Sessions Judge, Ambikapur vide his judgment dated 26 -11 -1980 passed in Sessions Trial No. 63 of 1980 held 10 accused persons namely Banshidhar, Munna alias Munnu, Mohammad Ishaq, Dinesh Kumar, Ramprakash, Krishnakumar, Suresh Kumar, Rajendra Prasad, Butanram and Nand Lal guilty of offences punishable under sections 325/149, 333, 452, 147 and 323/149 of the Indian Penal Code and sentenced them each to (i) rigorous imprisonment for nine months and a fine of Rs. 500/ -, (ii) rigorous imprisonment for nine months and a fine of Rs. 500/ -, (iii) rigorous imprisonment for six months and a fine of Rs. 200/ -, (iv) rigorous imprisonment for three months, and (v) rigorous imprisonment for three months for the same. It was ordered by him that in case of default in payment of fine amounts, they would undergo further rigorous imprisonment for the periods specified in the judgment. It was also ordered by him that the substantive sentences of imprisonment awarded to them would run concurrently. This appeal by the accused -appellants is against their abovesaid convictions and sentences.

(2.) THE incident in question took place at about 9.30 -10 P.M. in the night of 28 -1 -1980 in the town of Ramanujganj in Sarguja district. The events that led to the unfortunate incident may be briefly stated: Complainant Mahesh Datt Choubey (P.W. 19) was Judicial Magistrate First Class and was posted in the above said town at the relevant time. Rajesh Datt Choubey (P.W. 18) was brother of Mahesh Datt Choubey and was living with him at the relevant time. Young boys of the said town had formed an association called 'Yuva Jagriti Singh' and had arranged cinema shows on the nights of 27th, 28th and 29th of January, 1980 for some charitable purpose. Ex. P -39 was the order dated 17 -1 -1980 passed by the Sub -Divisional Magistrate, Ramanujganj permitting the President of the Sangh to hold the cinema shows on the above said dates free of tax. However, it appeared that such a permission could be granted only by the District Magistrate and not the Sub - Divisional Magistrate. It further appeared that some boys met the complainant on 26 -1 -1980 and tried to impress upon him that the real intention of the members of the Sangh was not to collect money for any charitable purpose but to mis -appropriate the same and that such a bungling ought to be stopped. On the night of 27 -1 -1980, one cinema show was held by the members of the Sangh as per the scheduled programme.

(3.) THE main question that arises for determination in the case was as regards the identity of persons who had done some overt act or taken an active part in the house breaking and the assault made on the complainant and his brother -for it was clear that in the case of such a type of crowd the possibility of some of the persons being mere spectators having nothing to do with the commission of offences could not be reasonably ruled out. In the said connection, it was noteworthy that the complainant had not known the accused persons from before and he allegedly came to identify some of them merely because he had happened to see their faces on some earlier occasion also. It was again noteworthy that though complainant's brother Rajesh Datt Choubey claimed to know some of the accused persons by names, from his testimony in the Court it was apparent that little value could be attached to his said claim. Moreover, in the facts and circumstances of the case, two important factors were also required to be taken into account one that the incident took place at about 9.30 -10 p.m. in the night and two that the complainant's brother Rajesh Datt Choubey had consumed liquor and was in a drunken state at the relevant time. Needless to say, the question as regards the identity of the persons who had participated in the incident was required to be determined bearing in mind the abovesaid considerations.