Judgment:
HIGH COURT OF MADHYA PRADESH JABALPUR Criminal Revision No.2113/2012 Sumera @ Sumesh Vs. State of Madhya Pradesh Criminal Revision No.2195/2012 Chunnu Vs. State of Madhya Pradesh ----------------------------------------------------------------------------------------------------- Present : Hon'ble Shri Justice N.K. Gupta. ----------------------------------------------------------------------------------------------------- Name of counsel for the parties: Shri Ranjeet Singh Parihar, counsel for the applicant Sumera @ Sumesh. Shri Arvind Soni, counsel for the applicant Chunnu. Shri S.K. Kashyap, Public Prosecutor counsel for the respondent/State. ----------------------------------------------------------------------------------------------------- ORDER
(Passed on 12th day of March, 2013) These two revisions are connected with the common judgment passed by the Magistrate Court as well as appellate Court therefore, both the revisions are decided by the present common order. 2 Cr. R. Nos.2113/12 & 2195/2012 2. The applicants were convicted for the offences punishable under Sections 452, 354 and 323 of IPC vide judgment dated 21.10.2011 passed by the learned J.M.F.C. (Shri Vijay Kumar Sonkar), Katni in criminal case no.1887/08 and sentenced for one year's S.I. with fine of `1,000/- and six months' S.I. with fine of `500/-. In criminal appeal no.163/2011, the learned Sessions Judge, Katni vide judgment dated 10.10.2012 partly allowed the appeal and the conviction as well as sentence for the offence punishable under Section 354 of IPC was set aside but the conviction and the sentence for the offence punishable under Section 452 and 323 of IPC were maintained. Being aggrieved with the aforesaid judgments, the applicants have preferred the present revisions.
3. The prosecution's case, in short is that, on 7.10.2003 at about 5:00 p.m. in the evening, the prosecutrix (PW-1) was cooking in her house situated at village Juhali [Police Station, Katni District Katni]. then, the applicants entered in the house and they held the prosecutrix with evil intention. Thereafter, on the instigation of the applicant Sumera, the applicant Channu gave a slap to the prosecutrix. Thereafter, Yashoda daughter of the prosecutrix came to the spot and therefore, the applicant took the prosecutrix out of the house and assaulted her by the sticks causing various injuries. The prosecutrix lodged an FIR on 8.10.2003 at about 1:00 p.m. in the noon. She was sent for her medico legal examination but no visible injury was found. However, the prosecutrix was 3 Cr. R. Nos.2113/12 & 2195/2012 complaining about the pain in her left shoulder. No fracture was found in her x-ray report. After due investigation, a charge sheet was filed before the trial Court.
4. The applicants abjured their guilt. They did not take any specific plea and therefore, no defence evidence was adduced.
5. The learned J.M.F.C. after considering the prosecution's evidence convicted and sentenced the applicants for the aforesaid offences but the appellate Court found that it was not a case of Section 354 of IPC and therefore, their appeals were partly allowed and the conviction as well as sentence for the offence punishable under Section 354 of IPC was set aside.
6. I have heard the learned counsel for the parties.
7. After considering the submissions made by the learned counsel for the parties, if the evidence adduced by the prosecution is considered, then it is apparent from the evidence given by the prosecutrix (PW-1), Yashoda Bai (PW-2) and Mamta (PW-4) that the applicants entered in the house of the prosecutrix because a quarrel took place between the parties on the reason that the applicants were beating the drums in a loud manner and therefore, the prosecutrix objected. However, the prosecutrix did not state that the applicants entered in the house with sticks. It is alleged by the prosecutrix that the applicant Chunnu gave her a slap inside the house. Thereafter, the applicants took her out from the house and assaulted by the sticks. The evidence given by the prosecutrix 4 Cr. R. Nos.2113/12 & 2195/2012 is nowhere corroborated by the medical evidence. If she was assaulted by the sticks then, she must have sustained some visible injuries on her person but in her medical report, no visible injury was found, however she was complaining about the pain in her left shoulder. It indicates that the prosecutrix was not assaulted by any stick etc.
8. It is apparent that the applicants entered in the house of the prosecutrix and they quarreled with her therefore, they have committed the offence of house trespass but they did not take any weapon inside the house and therefore, it cannot be presumed that they went inside the house with the preparation of assault. Hence, no offence punishable under Section 452 of IPC shall be constituted against the applicant. At the most, the offence punishable under Section 451 of IPC shall be constituted. The learned J.M.F.C. as well as the learned Sessions Judge have committed an error in convicting the applicants for the offence punishable under Section 452 of IPC.
9. It is proved by the statements of the prosecutrix and her daughter alongwith Mamta that the applicants assaulted the prosecutrix. For the completion of the offence punishable under Section 323 of IPC, it is not necessary that the visible injury should be caused to the victim. The testimony of these witnesses is duly confirmed by the FIR also. There was no previous enmity between the parties and therefore, the testimony of the prosecutrix and her 5 Cr. R. Nos.2113/12 & 2195/2012 witnesses cannot be thrown away. Hence, it is proved beyond doubt that the applicants had voluntarily caused hurt to the prosecutrix and therefore, both the Courts below have rightly convicted the applicants of the offence punishable under Section 323 of IPC.
10. So far as the sentence is concerned, the offence punishable under Section 451 of IPC is a part of the offence punishable under Section 323 of IPC. In the present case, to cause of assault, it was for the applicant to went inside the house. However, both the offences are not so grave because it appears that the applicant Chunnu gave a slap and kicks to the prosecutrix and no visible injury was found to the prosecutrix. In such type of crime, only fine could be imposed. However, the applicant Sumera @ Sudesh remained in the custody for three months during pendency of the revision, whereas the applicant Chunnu remained in the custody for one month during the pendency of revision. Under such circumstances, they have already undergone in the custody for a sufficient period.
11. On the basis of aforesaid discussion, the revisions filed by the applicants are hereby partly allowed. The conviction for the offence punishable under Section 323 of IPC is hereby maintained, whereas the conviction as well as the sentence for the offence punishable under Section 452 of IPC is hereby set aside but the applicants are convicted for the offence punishable under Section 6 Cr. R. Nos.2113/12 & 2195/2012 451 of IPC. The applicants' sentence for the offence punishable under Section 323 of IPC is reduced to the period, which they have already undergone in the custody, whereas no change in the fine amount imposed by the trial Court for that offence. The applicants are imposed with the jail sentence of the period, which they have already undergone in the custody for the offence punishable under Section 451 of IPC. No separate fine is imposed for that offence therefore, they would be entitled to get the fine amount back, which was deposited (if any) for the offence punishable under Section 452 of IPC before the trial Court,.
12. At present, the applicants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.
13. A copy of the order be sent to the trial Court as well as appellate Court alongwith their records and for information. (N.K. GUPTA) JUDGE 12 03.2013 pnkj