BILASPUR v. RESRONDENT

SB:- Hon'ble Shri Justice Radhe Shvam Sharma "<' Criminal Appeal No.1064 of 2004 APPELLANTS l' 2 Ram Bharos @ Khokhna, age about 45 years, son ofjohada Kurmi. Johan, son of Rambharosh Kurmi, age 21 years, - ,8oth resident of village - Khairjhiti, district Kabeerdham ,,¥'S Kunda, (Kawardha) CG f:" versus RESPONDENT • The State of Chhattisgarh APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE Appearance: Shri Suresh Pandey, counsel for the appellants. Shri RR Sinha, Panel Lawyer for the Sfate/ respondent. JUDGMENT (Passed on 28th January, 2013) This appeal is directed against judgment dated 26.11.2004 passed by Additional Session Judge, (FTC) Kabeerdham (Kawardha) in sessions trial No.179/2003. By the impugned judgment, appellants Ram Bharos and Johan have been convicted under Sections 341, 324/34, and 325 read with Section 34 of the Indian Penal Code and sentenced in the following manner with directions sentences concurrently. CONVICTION UnderSection.341 IPC Under Section 324/34 IPC t ,' SENTENCE Simple imprisonment for one month each Rigorous tow years each' imprisonment ^S'SS^ Under Section 325/34 IPC imprisonment Rigorous twoyears each and to pay fine of Rs.5000/- each, default of payment of fine, to further undergo Rl for three months each.

Case ofthe prosecution, in brief, is as under: On 02.10.2003, at about 7.00 am Chedilal (PW-8) and injured Gopal Sahu (PW-6) were going to the field and when they reached near the house of appellant Ram Bharos, appellant ^f. Joham came there armed wfth axe and stopped Gopal Shau (PW- 6) and assaulted him with tangali (axe). Gopal Sahu (PW-6) prevented the assault ofjohan by his latti. Chedilal (PW-8). tried to intervene, but appellant Johan threatened him and asked him to fled away from the spot. Thereafter appellant Ram Bharos came there and assaulted Gopal Sahu (PW-6) with kudali. Gopal Sahu (PW-6) sustained injuries on his left wrist, left thigh and left hand and became unconscious. Chedilal (PW-8) lodged dehati nalishi (Ex-P/12). Injured GopalSahu (PW-6) was sent to medical examination vide Ex-P/23 to Community Health Centre, Pandariya. Dr. VP Jaiswal (PW-3) examined him and gave his report vide Exd-P/5, in Which he found near about 12 injuries. Injuries 1 to 5 and injury No.9 and 11 are incised wounds and restof the injuries were contusions. The injured was advised for X-ray and Dr. R. Jitpure (PW-16) took out the X-ray and gave his report vide Ex-P/24, in which he found fracture on right radius and left humerus. Injured was admitted in CIMS, Bilspur for furthertreatment. In further investigation, Spot map (Ex-P/1) was prepared by patwari Narendra Kumar (PW-1). Bed head Ucket (Ex-P/8) was If -3- ^l seized. Another spot map (Ex-P/9) was prepared by investigating officer. Lathi was seized from the place of occurrence vide Ex- P/10 and plain soil and blood stained soil were seized from the place of occurrence. Kudali was seized from appellant Ram Bharos vide Ex-P/13 and axe (tangia) was seized from appellant Johan vide Ex-P/3. Another axe was seized from the acquitted accused Mohan vide Ex-P/4. After completion of'the^investigation, charge sheet was filed against the appellants-in the Court of Chiefjudicial Magistrate Kawardha who, in turn, committed the case to the Court of Sessions Judge, from where, it was received on transfer by Additional Session judge, (FTC) Kawardha, who conducted the trial and convicted and sentenced the appellants as mentioned above and acquitted co-accused persons Mohan, Basanbai @ Phulbasan Bai and Lochanbai @ Sulochana Bai on the charges framed against th?m. "1<T

Submission of learned; counsel for the appellants is that he is not pressing this appeal on merits and he would confine his argument -only to the sentence part of the impugned judgment. He further, submits that the incident took place on02.10.2003 and the appellants remained in custody during the trial. Both the appellants remained incustody from 10.10.2003 to 24.12.2004, i.e. one year two months and fourteen days. Therefore, instead of sending them back to jail, they will be sentenced. for'the periodundergone bythem.

On the contrary, R.R. Sinha, Learned. Panel Lawyer for the State/respondent opposed theabove argument. . "• K^T^^S^ -4-

In the instant case, the appellants remained in custody from 10.102003 to 24.12.2004, i.e. one year two months fourteen days. The appellants have been sentenced for the period of two years only for the offences under Section 324/34 and 325/34 of IPC. Considering the facts and circumstances of the case and the sentence awarded by learned Additional Sessions Judge, 1 do'hot feel it appropriate to send the appellants back to jail. 1 am of the view.'jthat ends ofjustice would be met, if while upholding the convrctiore of the appellants, the jail c sentence awarded to fhe appellants is restricted to the period already undergone by them.

In the result, the appeal is partly allowed. Conviction of the appellant under Sections 341, 324/34, and 325/34 of the IPC is upheld. Howeyer, jail sentence awarded to them is reduced to the period already undergone by them. Sentence of awarded to the the appellants by the learned Sessions Judge is also upheld. Blni Sd/- R.S. Sharma Judge