IMPORTANT POINT
Where accused caused bone fracture injury to complainant but when complainant intervened in a quarrel and gave a provocation, conviction could be recorded under u/s. 355 IPC and not u/s. 325 IPC.

ORDER

T.P. Sharma, J.—By this revision, the applicants has challenged legality and propriety of the judgment dated 29.1.2011 passed by the 5th Additional Sessions Judge, Bilaspur in Criminal Appeal No.138/2010, modifying the judgment of conviction and order of sentence dated 7.12.2010 passed by the Judicial Magistrate First Class, Bilha in Criminal Case No.1401/2008, whereby learned Judicial Magistrate First Class has convicted the applicants under Section 325/34 of the I.P.C. and sentenced them to undergo R.I. for six months and to pay fine of Rs.1,000, in default of payment of fine to further undergo R.I. for one month. Same was modified by the appellate Court and while maintaining the conviction appellate Court has modified the sentence from R.I. for six months and fine of Rs.1,000 to R.I. for three months and pay fine of Rs.1,000.

2. As per case of the prosecution, on 16.5.2006 at about 5.30 a.m. both the applicants have caused injury to complainant Vijay Kumar (PW1) and caused fracture of base of 2nd metacarpal bone of left hand. F.I.R. was lodged, he was examined by the doctor and finally charge-sheet was filed. After providing an opportunity of hearing to the parties, learned Judicial Magistrate First Class, Bilha has convicted & sentenced the applicants as aforementioned. Same was challenged before the 5th Additional Sessions Judge, Bilaspur in Criminal Appeal No.138./2010. Learned 5th Additional Session Judge while maintaining the conviction of the applicants has modified the sentence as aforementioned.

3. I have heard learned counsel for the parties, perused the judgment impugned and records of the Courts below.

4. Learned counsel for the applicants submits that although there is concurrent finding of fact of the Courts below but the Courts below have erred in convicting the applicants under Section 325/34 of the I.P.C. and sentencing the applicants for commission of the aforesaid offence. Even as per initial case of the prosecution, the applicants were not quarreling with the complainant and it was not intended to cause their any injury to the complainant but while he was returning from pond after taking bath and objected the applicants who were quarrelling with brother of the complainants, then on sudden provocation i.e., with provoked by the complainant Vijay Kumar, they have caused injury, that too fracture of small bone i.e., 2nd metacarpal bone of left hand. This shows that the applicants have not caused any grievous injury to the complainant with intent to cause such injury but they have caused injury on sudden provocation when provoked by the complainant. Learned counsel further submits that even on the basis of evidence of the prosecution, the act attributed to the applicants does not fall within the ambit of Section 325/34 of the I.P.C. but may fall within the ambit of Section 335/34 of the I.P.C. Learned counsel also submits that the present applicants are in custody after decision in appeal i.e., 29.1.2011 till today, for about 14 days and they have already paid fine of Rs.1,000 each. Same may be treated as sufficient sentence for the commission of aforesaid offence.

5. On the other hand, learned State counsel opposes the revision and submits that both the Courts below have rightly convicted and sentenced the applicants as aforementioned.

6. Definitely, as submitted by Mr. Sameer Shrivastava, counsel for the applicants, initially the present applicants were quarreling with other persons and not with the complainant, even complainant Vijay Kumar was not present on the spot, while he was returning from pond after taking bath and objected the applicants who were quarreling with brother of the complainant, then on sudden provocation they have caused injury to the complainant.

7. While convicting the applicants under Section 325/34 of the I.P.C., both the Courts below have not considered the aforesaid aspect that the applicants have not caused any grievous hurt to the complainant voluntarily, thereby both the