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Judgment
The appellant has filed the present appeal being aggrieved by the judgment dated 3.9.2013 passed by Addl. Sessions Judge, Special Court Electricity
Act, Indore in Sessions Trial No. 932/2011, whereby he has been convicted u/s. 329 of IPC and sentenced to 5 years' RI with fine of Rs.5,000/- and
in default of fine amount, to further undergo additional 6 months' RI.
Facts of the case, in short, are as under :
(i) As per prosecution story, on 29.3.2010 at 10 am., complainant Jairam Sharma (PW 1) lodged First Information Report (Ex. P/1) that on 27.3.2010
nearabout at 7 pm. when he was working in the shop, the accused came there in intoxication condition and demanded the money for consumption of
liquor. The complainant refused to pay the money, then he abused him, threatened to kill and returned back. Again, on 29.3.2010, when he was
opening the shop and arranging the goods with his son (P.W.2), the accused came there along with his friends and started abusing by using filthy
language and again demanded the money for consumption of liquor. When complainant refused to give him money, he took out the piece of wood stick
lying in the shop and gave him a blow on the left side of head, hand and back. His son came to rescue then accused and his friends caused him injury.
They threatened him to kill him. Banshi & other shop-owners intervened and saw the incident. Police Station Chhatripura registered a criminal case
against the appellant u/s. 327, 294, 506/34 of the IPC. The injured Jairam Sharma and Pankaj (P.W 1 & P.W.2) were sent to the Hospital for
treatment. In the X-ray, fracture in right hand bone was found and thereafter, offence u/s. 325 of IPC was also added. Vide Ex. P/7, the appellant
was arrested and the wooden stick used in the offence was seized vide Ex. P/2. Spot map vide Ex. P/3 was prepared. After completing the
investigation, challan was filed in the Court of Judicial Magistrate, First Class, Indore. Later on, it was committed to the Sessions Court for trial. After
examining the material available in the challan, charges u/s. 294, 323, 325, 327, 329 & 506 of IPC were framed against the appellant. He abjured the
guilt and pleaded for trial.
The prosecution examined Jairam Sharma (P.W.1) who narrated the entire incident as disclosed in the FIR. His son Pankaj Sharma was also
examined as P.W.2 who has supported the case of prosecution. Banshi, a nearby shop-owner was examined as P.W.3, but he did not support the
case of prosecution and declared hostile. Dr. Santosh Khandelwal was examined as P.W.4, who proved Ex. P/5 & P/6 in respect of fracture on Ulna
bone of left hand. Shyamveer Singh, Sub Inspector was examined as P.W.5 who conducted the investigation and Narendra Bajpai, Sub Inspector was
examined as P.W.6, Dr. Mahendra Jain was examined as P.W.7.
After appreciating the evidence came on the record, learned Sessions Judge has acquitted the appellant u/s. 294 of the IPC, but held guilty u/s. 323,
325, 327 and 329 of IPC. Since all the ingredients of Section 323, 325 and 327 are included in Section 329, therefore, convicted u/s. 329 of IPC and
sentenced to undergo 5 years' RI with fine of Rs.5,000/- with default stipulation.
Being aggrieved by the aforesaid judgment and sentence, the appellant has preferred this appeal.
By order dated 31.10.2013, the appeal was admitted for final hearing. By order dated 24.11.2014, jail sentence was declined to suspend and I.A.
was rejected. Later on, appellant filed another application seeking suspension of sentence. By order dated 2810.2015, this Court has suspended the jail
sentence and released the appellant on bail. The appellant has undergone more than two years five months imprisonment and also deposited the fine
amount.
Shri Ajay Jain, learned counsel appearing for the appellant, submitted that the appellant has been falsely implicated in the case by the complainant.
In fact, the appellant was assaulted by the complainant on 27.3.2010 and he received the head injury. He was got treated by the complainant but in
order to save from the complaint, they lodged the false FIR against the present appellant. The appellant is loader and working in that local market. No
such incident took place on 29.3.2010. The appellant never demanded the money. P.W.1 in his statement has stated that the entire incident was seen
by Banshi, the shop-owner, who intervened also, but said Banshi did not support the case of prosecution. The appellant has been convicted and
sentenced only on the basis of statements of P.W.1 & P.W.2 who are father and son, therefore, in absence of any independent witness, the conviction
and sentence are not liable to be sustained, hence the appeal be allowed.
Shri A. Pahadia, learned Public Prosecutor, appearing for the state argued in support of the judgment by submitting that P.W.1 complainant
received grievous injury and the same has been proved by evidence of Doctor (P.W.4 and P.W.7), hence the appellant has rightly been convicted u/s.
329 of IPC. No interference is called for and the appeal is liable to be dismissed.
P.W.1 lodged the FIR that on 27.3.2010, nearabout 7, the appellant came to his shop and demanded money for consumption of liquor. He abused
him by filthy language, but no such complaint was made to the Police immediately by P.W.1 on said date. According to P.W.1 & P.W.2, again the
appellant came with his friends on 29.3.2010 near about at 10 am. in the morning and again demanded the money and abused him by filthy language
and gave a blow by wooden stick lying in his shop. He started bleeding and his son Pankaj (P.W.2) came to rescue him, but he also received the
injury. According to P.W.1, appellant came with his two friends, but they have not been made accused in this case. P.W.1 stated that accused was
not known to him prior to the date of incident, but P.W.2 has stated that he knew the accused because he works as a loader in the local market,
therefore, P.W.1 has not deposed the correct facts before the Court. He lodged the FIR by name of appellant, but in his cross-examination, he stated
that he does not know him. Hence his statement is not inspiring the confidence of this Court.
P.W.1 has alleged that the accused has abused him by filthy language, but the learned Sessions Court has acquitted the appellant u/s. 294 of IPC
because Banshi (P.W.3) has turned hostile. Therefore, the appellant who said to have abused by filthy language and demanded the money for liquor is
unacceptable. When nobody heard about the filthy words used by appellant other than P.W.1 and P.W.2 then there is no evidence about the demand
of money. When the statement of P.W.1 and P.W.2 have been disbelieved for the purpose of abusing by filthy language, then their statements are
liable to be rejected in respect of allegation of demand of money. So far as injuries by the appellant are concerned, it has been established by the
medical report, X-ray and the statement of the Doctors that P.W. 1 received the injury of fracture. Therefore, the appellant is only liable to be
convicted u/s. 325 of IPC and not u/s. 329 of IPC.
In view of the foregoing discussion, the appeal is partly allowed. The conviction of the appellant u/s. 323, 327 and 329 of IPC is quashed and he is
convicted u/s. 325 of IPC only.
So far as sentence of five years and fine of Rs.5,000/-is concerned, since the conviction has been converted from Section 329 to Section 325,
therefore, the sentence of five years is also reduced to the period already undergone. However, fine of Rs.5,000/- is increased to Rs.10,000/- (Ten
Thousand) looking to the injuries received by P.W.1. Amount of Rs.5,000/-(Five Thousand) be paid to complainant (P.W.1).
With the aforesaid, the appeal stands partly allowed to the extent indicated above. Appellant who is already on bail, subject to deposit of increased
fine amount, his bail bonds shall stand cancelled. In default of deposit of enhanced fine amount, he shall undergo six months additional RI.