Sirwatia vs Laloo

Tarun Kumar Kaushal, J.—Present revision petition is directed by mother of deceased/ complainant against judgment dated 15.7.2004 passed by Sessions Judge Satna, in Sessions Trial No. 9/2003 by which respondents/accused persons have been acquitted of the charge under Section 306 of IPC however they been convicted under Section 323 of IPC and sentenced to jail sentence of a period already under gone and with fine of Rs. 1000/-.

Necessary facts in short are that- on 5.11.2002 at about 6 p.m., respondents/accused persons made a quarrel with deceased (Badal) and his uncle Gorelal (PW-4) and assaulted them. PW-4 Gorelal some how managed to escape from the scene of occurrence but deceased was taken by the respondents/accused persons and he never came back to his house.

On 5.11.2002, dead body of deceased was found near Railway Track into two pieces. Aforesaid information was entered in the Rojnamcha and Marg proceeding was initiated. Prima facie, it was found to be a case of suicide and Police investigated the matter on same line and submitted charge sheet in the Court of J.M.F.C. and the case was committed to the court of Sessions for trial.

Trial Court framed charges under Section 306/ 34 of IPC against the respondents and thereafter amended and added offence under Section 323 of IPC and 341 of IPC also. Respondents abjured guilt and pleaded innocence hence statements of Harishanker (PW-1), Shyamlal (PW-2), Madan Choudhary (PW-3), Gorelal (PW-4), Sarbatiya @ Champa (PW-5) Kesh Kali (PW-6), Ramdev (PW-7), Premlal (PW-8) and Devendra (PW-9) were recorded.

Vide impugned judgment, aforesaid evidence was appreciated and it was observed that beating caused to the deceased a day prior to the incident cannot be deemed to be a act of abatement as required under Section 107 of IPC hence respondents have been acquitted of charge under Section 306 of IPC however for causing simple injuries, respondents/accused have been convicted and sentenced under Section 323 of IPC as above.

Challenging the aforesaid judgment, this revision petition has been preferred by the mother of the deceased that in fact it was a case of murder of the deceased but Police and higher offices constantly ignored the efforts and reminders of the petitioner including written complaint Ex.P/3 and did not investigate the matter in right perspective. Dead body of deceased was found at a distance of about more than 15 ft. from the Railway Track and conduct of respondents/accused was also found doubtful because they absconded soon after the incident.

In response, learned counsel for the respondents/accused submits that Police has proceeded the matter in right direction and is submitted a charge-sheet under Section 306 of IPC against the respondents and trial Court has proceeded in the matter according to law and on the basis of a well reasoned judgment, acquitted the respondents of charge under Section 306 of IPC and convicted and awarded balanced sentence under Section 323 of IPC as referred above. At this stage, by this Court, nothing much can be appreciated because on the basis of revision petition of private complainant, at the most, only legality of findings can be examined.

Heard the parties at length and record perused.

Admittedly, PW-4 Gorelal is the main and most important witness in this case who accompanied the deceased while deceased asked the respondents to not to consume liquor and ganja at the open place and they reacted on him and started beating Gorelal also uncle of the deceased, but some how he could manage to escape. Revisionist complainant Sarbatiya @ Champa also has been examined in the trial Court as PW-5. She saw the dead body of his son. Mouth was filled with sand and eye was absent and one hand was chopped.

On careful perusal of the evidence lead in the trial Court, nothing much can be opined regarding efforts made in the revision petition by the mother of the deceased to presume it to be a case of murder of the deceased however after due investigation Police came to the conclusion of suicide and abatement thereof by the respondents.

At the stage of filing of charge sheet, or at the most, at the time of framing of charge, something could have been done on that line.

At this stage, by this Court, clock cannot be put to reverse to that extent. But findings of acquittal of the charge of the respondents under Section 306 of IPC cannot be disturbed or set aside by this Court because trial Court has rightly observed that merely on the basis of beating of deceased, a day ago, by the respondents, in absence of other incriminating evidence, it cannot be safely presumed the abatement of suicide. Similarly, conviction of respondents under Section 323 of IPC is also well founded and sustainable particularly while this finding of conviction has not been challenged by the respondents in any proceeding.

In so far as, sentence part is concerned, in view of the facts and circumstances of the case, it appears to be extremely insufficient because beating of the deceased resulted in a very serious consequence hence proper weightage should have been attached to the sentence also. In the impugned judgment, trial Court has observed that there had been only three days under gone custody period to the credit of the respondents and they have been sentenced to the period already undergone and with fine of Rs.1000/- i.e. the maximum fine.

In view of the facts and circumstances of the case, for offence under Section 323 of IPC, undergone jail sentence of three days is extremely insufficient instead respondents should have been sentenced to 6 months R.I. Fine of Rs.1000/- deserves to affirmed.

Accordingly, petition deserves to be and hereby partly allowed in following terms-

(i) That acquittal of respondents u/s. 306 of IPC is based on correct appreciation of evidence and is hereby affirmed. No interference is required in aforesaid findings.

(ii) For conviction under Section 323 of IPC, sentence of under gone sentence is insufficient. In view of the facts and circumstances of the case, respondents are sentenced to 6 months R.I. and fine sentence is maintained.

(iii) Impugned judgment modified on the point of sentence as above.

All concerned are directed to ensure the compliance of the aforesaid judgment regarding execution of sentence.