Masita and others vs Chunwa and another

V.P. Mathur, J.—Both the oppositeparties having been served, this revision has come up for hearing today. It was admitted on the point of sentence only in respect of Masita and Babu. So far as Smt. Rasidan and Smt. Nafeesa are concerned, the Court below has already granted them the benefit of the Probation Act and at the time of admission of the revision, it was pointed out that they have been leniently dealt with.

Oppositeparty No. 1Chunwa, though served has neither put in appearance nor contested. So far as the revision on behalf of Smt. Rasidan and Smt. Nafeesa is concerned, it stands dismissed outright.

Masita and Babu have been convicted and sentenced as follows:

Under Section 452, I. P. C. six months'' rigorous imprisonment.

Under Section 323, I. P. C. three months'' rigorous imprisonment

Under Section 504, I. P. C. three months'' rigorous imprisonment.

And all the sentences have been made concurrent.

The Magistrate''s order passed by Mr. Jagannath Kardam, Munsif Magistrate. Muzaffar Nagar is dated 1771984, Criminal Appeal No. 166 of 1984 came up for hearing before Mr. S. K. Garg, the then IVth. Additional Sessions Judge of Muzaffar Nagar and was disposed of on 13121984 and the order passed by the learned Magistrate was amended to this effect only that the convictions were all upheld, but the sentence under Section 452, I. P. C. was reduced to six months'' rigorous imprisonment instead of one year''s R. I. awarded by the learned Magistrate. The learned Counsel for the revisionists says that after the delivery of the judgment of the Court below on 1771984, both the revisionists were taken into custody and remained in Jail custody upto 2571984 when bail was granted to them by the Lower Appellate Court. Presently there is nothing on the record to justify that assumption but the learned counsel says that he is making that statement on the basis of papers which are in his possession. It appears that when the present revision was filed on 20121984, the bail was granted to these two persons and therefore, it will be assumed that at least between 13121984 and 20121984 these two revisionists were in Jail custody. Thus for a period of eight days, they had been in Jail. It may be for a larger period also because normally it takes long time for an order of this Court to reach the Subordinate Court for being carried out. In this manner according to the learned counsel, total period during which the applicants have been in jail custody is of over 17 or 18 days.

From the judgments of the two Courts below, it appears that the dispute was in respect of a house which was occupied by Smt. Phundia and her husband Chunwa. Apart of this house was allegedly purchased by the present revisionists from one Buddhau and it appears that in order to enforce their right to enter into the house and to evict Smt. Phundia and her husband Chunwa these persons along with the wives of the revisionists, forcibly entered into the house and gave a beating with danda, fists and kicks to Smt. Phundia wife of Chunwa. The occurrence was seen by Chunwa who rushed to the help of his wife. Some other witnesses also came. The prosecution examined besides the injured Smt. Phundia, her husband Chunwa and one Abdul Wahid (P.W. 2). Their evidence was considered by both the Courts below. The injury report was also considered. At least the injury No. 1 which was a contusion of the dimension of 12 cms X 2 cms on the back of the injured, could not have been self inflicted. The doctor was also examined and the case was found satisfactorily proved.

The learned counsel says that in case the sentence is reduced to imprisonment already undergone and a fine is additionally imposed and out of it compensation is paid to Smt. Phundia (P.W. 3) it will not be treated by him and his client as enhancement of sentence.

Considering the fact that the parties are apparently coowners of the same house and are residents of the same village and this occurrence took place suddenly without any previous enmity, I think that the purpose of law and justice will be well served if the sentence of Masita and Babu is reduced to imprisonment already undergone and they are additionally visited with a fine of Rs. 200 each out of which some amount of fine by way of compensation is paid to Smt. Phundia. Under these circumstances, the revision is disposed of as follows : It shall stand dismissed so far as Smt. Rasidan and Smt. Nafeesa are concerned. The conviction of Masita and Babu on the charges under Sections 452, 323 and 50 I. P. C. is upheld and confirmed, but their sentence is reduced to imprisoning: already undergone plus a fine of Rs. 200 each which shall be paid within or,. month from the date of the receipt of a copy of this judgment in the court below in default thereof, each one of them shall undergo six months'' rigorous imprisonment under Section 452,I. P. C.. three months'' rigorous imprisonment under Section 323, I. P. C.. and three months R. I. under Section 504, I. P. C. all concurrently. The office shall send a copy of this judgment to the Court below forthwah. Out of the amount of line, so realised a sum of Rs. 300 shall be paid to Smt. Phundia wife of Chunwa.