G.S. Solanki, J.@mdashLearned Sessions Judge, Sehore has passed the impugned judgment dated 18.5.1994 in S.T. No. 270 of 1992 by which the Appellant/accused has been convicted u/s 457 read with Section 511 and Section 325 of the Indian Penal Code and sentenced him to undergo R.I. of two years with fine of Rs. 200/-, R.I. of two years with fine of Rs. 500/- with default stipulation respectively.
2. Being aggrieved, the Appellant/accused have preferred this appeal u/s 374(2) of the Code of Criminal Procedure.
3. It is undisputed that Appellant/accused primarily tried by Judicial Magistrate First Class and at the defense stage, learned Magistrate found that offense u/s 459 of the I.P.C. is exclusively triable by the court of sessions. Therefore, he committed the case to the court of sessions vide committal order dated 30.9.1992. It is also undisputed that complainant, Jalam Singh died during pendency of this appeal and legal representatives of Jalam Singh and Appellant/accused entered into a compromise and they filed a compromise petition along with the application for permission of compounding the offense before this Court but the legal representatives of the deceased Jalam Singh could not appear before this Court for verification of the compromise, due to the reason best known to them.
4. Prosecution case in short is that in the intervening night of 25.7.1987 and 26.7.1987 at about 4 a.m. Appellant was trying to enter into the house of complainant Jalam Singh. Jalam Singh was sleeping in courtyard of his house and on being a noise, he woke up and intercepted Appellant, in turn Appellant gave a lathi blow on the nose of complainant Jalam Singh and fled away. It is also alleged that Jaggannath (P.W.3), Moti (P.W.7) also saw the Appellant when he was fleeing away. Jalam Singh lodged the report Exh. P-2 at Police Station Bilkisganj and thereafter, he was sent for medical examination. Dr. B.L. Puri (P.W.11) examined Jalam Singh and found injury on his nose. Jalam singh was referred for X-ray examination. Dr. M.M. Vyas (P.W.5) found fracture on nasal bone vide X-ray Exh. P-4. After usual investigation Appellant/accused was charge-sheeted.
5. Appellant abjured his guilt and pleaded false implication.
6. On appraisal of the evidence of record, learned sessions judge convicted and sentenced the Appellant as mentioned herein above.
7. Learned Counsel for the Appellant submitted that it was only case of attempt to criminal trespass and causing grievous hurt but the trial court committed error in recording the conviction u/s 457 read with Section 511 of the I.P.C. He further submitted that after the death of Jalam Singh, his legal representative and Appellant entered into a compromise and they filed compromise petition before this Court but unfortunately, legal representative of Jalam singh could not appear before this Court for verification of the same. In these circumstances, he prays for acquittal of the Appellant.
8. On the other hand, learned Panel Lawyer for the State submitted that it is true that compromise petition was filed but same remained unverified due to absence of legal representatives of complainant Jalam Singh (deceased) and he supported the impugned judgment passed by the trial court.
9. I have perused the evidence and other materials on record. Complainant Jalam Singh (P.W.2) deposed that when he woke up, he saw that Appellant was climbing on wall of courtyard. He scolded him, in turn Appellant gave a lathi blow on his nose and fled away.
10. Version of complainant was corroborated by Jaggannath (P.W.3), Moti (P.W.7) to the extent that they saw the Appellant when he was running away. They further deposed that Jalam singh narrated the incident to them and thereafter, Jalam Singh lodged the report Exh. P-2. Version of Jalam Singh is also corroborated by the evidence of Dr. B.L. Puri (P.W.1) who examined him and referred for X-ray examination. Dr. M.M. Vyas (P.W.5) found fracture on nasal bone vide X-ray report Exh. P-4. In these circumstances, it is established that the Appellant intentionally caused grievous injury to Jalam Singh which is punishable u/s 325 of the Indian Penal Code.
11. Since Jalam Singh categorically stated that he saw the Appellant when he was climbing on wall of courtyard. The spot map (Exh. P-4) also supported this fact, Jalam Singh admitted that along with courtyard there is lane and courtyard was open. In these circumstances, only established that Appellant attempted to criminal trespass with the intention for committing an offence, which is punishable u/s 447 read with Section 511 of the I.P.C. In these circumstances, the trial court committed error in convicted the Appellant u/s 457 read with Section 511 of the Indian Penal Code, therefore, appeal is partly allowed. Appellant is convicted u/s 447/511 of IPC, instead of u/s 457/511 of IPC and u/s 325 of IPC.
12. After considering the special fact that Appellant faced full trial before the Judicial Magistrate, Ist Class from 14.8.1987 to 30.9.1992 and then he was committed to the Court of Sessions again he faced retrial before the sessions court. Further more, legal representative of Appellant entered into a compromise with the Appellant but thereafter they could not appear before this Court for verification of the same.
13. In the above mentioned circumstances, I am not inclined to award jail sentence to the Appellant and ends of justice would be meet out if he is convicted for the jail sentence of already undergone and fine of Rs. 1,000/- for the offence u/s 447/511 of the I.P.C. and sentence of already undergone and fine of Rs. 4,000/- for the offense u/s 325 of the Indian Penal Code. After realization of fine amount, Rs. 2,500/- and Rs. 2,500/-be paid to each legal representatives of deceased, Jalam Singh i.e. Jaggannath s/o of Jalam Singh and Ram Singh s/o of Jalam Singh resident of Village Sagoni District Sehore respectively. Bail bond and security bond of the Appellant stands cancelled.
14. Accordingly, the appeal is partly allowed as mentioned above.
