SHOJI Vs. STATE OF MP

JUDGEMENT

(1.) BOTH the Courts below have concurrently found the petitioner guilty under S. 325 of the Indian Penal Code (Code for short) and sentenced to undergo R.I. for 1 year, fine of Rs. 500 in default to further undergo R.I. for one month. The petitioner was further convicted under S. 323 of the Code by the trial Court and sentenced with fine of Rs. 300/- in default to undergo S.I. for 20 days. The appellate Court had set aside the later conviction and sentence.

(2.) MOTILAL (PW 2), the victim, has fully supported the case of prosecution. According to him, cattle had entered his gram field. He had gone to check them. Petitioner came and dealt with two or three blows of Lathi injuring his right arm, waist and mouth whereby his two upper teeth were broken. His wife Bajrangi (PW 3) has fully supported him. Motilal (PW 2) had lodged FTR (Ex. P/2) at P.S. Kotwali, Sheopur the same day within 2.5 hourse, P.S. being situate at a distance of 15 Kms. from the spot. This report was certainly lodged at the time when Motilal (PW 2) was under the influence of the occurrence and had no chance for either consutations or deliberations. Dr. S.K. Tiwari (PW 1) had noted two contusions, one on his left elbow and other on lumber region of back. Both were caused by hard and blunt object. Dr. G.C. Shrivastava (PW 6) on X-ray photograph being taken had noted a fracture in 1/3 of left humerus vide Ex. P-7. X-ray plates (Ex. P/8) are produced in support thereof. All these witnesses have been cross-examined at length yet nothing could come out either to discredit or disbelieve them. Certainly, two teeth of Motilal (PW 2) could not be seized from spot. That in itself does not rebut the case of prosecution. Omprakash (PW 4) has not supported such a case. He has been declared hostile and cross-examined and confronted with his previous statement by the learned Public Prosecutor which he has denied. However, Jeevanlal (PW 5), Head Constable, I.O. had proved correct recording of such previous statement.

(3.) THE Advocate for the petitioner has argued that the Jail sentence of the petitioner be reduced to that already undergone by him. The petitioner has been in custody since 10.7.2003 when he was convicted by the Appellate Court. Thus, he has been in custody for more than 50 days. In the facts and circumstances of the case, jail sentence of petitioner is reduced to that already undergone by him. Petitioner shall pay a fine of Rs. 2,000/- in default of payment of which he shall undergo S.I. for 6 months. Out of fine amount, an amount of Rs. 1,500/- be given to Motilal (PW 2) as compensation under S. 357 of the Code of Criminal Procedure. Thus, the revision is allowed partly. Conviction is maintained. Sentence is modified and reduced.