Ajay Kashyap And O rs vs State Of C.G.

This appeal is preferred against the judgment dated 13.08.2002 passed by the Second Upper Session Judge, Bilaspur in Session Trial No.74/2002,

wherein the said Court has convicted all the three Appellants for commission of offence under Section 323 read with Section 34 of the Indian Penal

Code for causing voluntary simple injury to one Rakesh Singh in the intervening night of 23.10.2001 and 24.10.2001.

As per the averment of the prosecution incident took place when there was a procession of Goddess Durga and it was advancing towards the City

Kotwali, Bilaspur. The Appellants tried to overcome to the procession that is why victim objected and thereafter the Appellants assaulted him by some

wooden article.

The counsel for the Appellants submits as under:

i. At the time of incident victim was under influence of intoxication and sustained injuries due to his own fault.

ii. Victim Rakesh Singh (PW-5) admitted in cross examination that 8 to 10 more persons were involved in the incident, therefore, benefit of doubt

ought to have been extended to the present Appellants.

iii. The Trial Court ought to have extended benefit of provisions of Probation of Offenders Act, 1958, but the same has not extended.

Rakesh Singh (PW-5) is the victim of the incident and he deposed that at the time of precession of Goddess Durga all the three Appellants

assaulted him by some wooden article (Batta) and he sustained injuries on head and back. Version of this victim is supported by version of Jitendra

Singh (PW-6), Anubhav Shukla (PW-7) and Pramod Singh (PW-9). Version of these witnesses is supported by FIR (Ex.P-1) in which names of all

the three Appellants are mentioned and FIR is recorded on the date of incident.

Dr. R. Jitpure (PW-1) who examined the victim found simple injury on left head and abrasion over left elbow of the victim. Dr. D.R. Patle (PW-2)

answered query made by Police authorities that injuries were simple in nature and on over all assessment of the evidence it is established that the case

of the Appellant does not fall in exception mentioned in Section 76 to 106 of the Indian Penal Code. All the Appellants know that the injuries caused

by them is painful for the victim, therefore, it was established before the Trial Court that all injuries caused to the victim Rakesh Singh (PW-5) by all

the Appellants are simple, therefore, the offence falls under Section 323 read with Section 34 of the IPC for which the Trial Court has convicted the

Appellants.

Heard on point of sentence.

For commission of offence under Section 323 of IPC corporeal punishment is not compulsory. Sentence of one year to each of the Appellants

awarded by the Trial Court is hereby set aside. Now the Appellants are sentenced to undergo to the period already undergone by them. Fine amount

will remain intact.

With the above modification the appeal is partly allowed.