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HIGH COURT OF CHHATTISGARH, BILASPUR AFR

CRR No. 544 of 2005

Prakash Kashyap

---- Applicant

Versus

State Of Chhattisgarh & Ors.

--Respondents

For applicant - Shri M.K. Bhaduri, Advocate.

For State- Shri S.R.J. Jaiswal, PL.

For Respondents No.2 to 5- Shri Santosh Bharat, Advocate.

Hon'ble Shri Justice Goutam Bhaduri

Order

29/08/2017

1.

Challenge in this revision is to the order dated 3/12/2005 passed by

the Additional Sessions Judge (F.T.C.) Kabirdham (Kawardha) in Criminal

Appeal No.12/2005 wherein quantum of sentence was interfered by the

appellate court. Present revision is by the complainant.

2.

Perusal of the order of the JMFC dated 27/08/2005 would show that

Sukhlal (A-1) accused was convicted under Section 148 IPC and was

sentenced to 6 months RI and further under Section 326 IPC sentenced to

3 years RI and fine of Rs.5000/- and under section 25 of the Arms Act he

was sentenced to 1 year SI and fine of Rs.500/- was imposed whereas in

respect of Ajit (A-2), Vijay (A-3) and Tularam (A-5) they were convicted

under section 147 IPC and were sentenced to 6-6 months SI and under

section 326 read with 149 of IPC they were sentenced to 3-3 years RI and

fine of Rs.1000 – 1000. It was further observed that in case fine of

Rs.5000/- is not paid by Sukhlal further he shall suffer sentence of 3

months SI and in lieu of default of payment of Rs.500/-, 1 month SI was

ordered whereas for rest of the accused it was observed that in absence

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of payment of fine of Rs.1000 – 1000 each under section 326 and 149

IPC, to undergo additional imprisonment for 2-2 months each.

3.

Case of the prosecution is that on 19/08/2003 complainant Prakash

Kashyap the applicant, injured victim herein, at village Pendri Kurd when

went to have his bath to pond and to answer call of nature while he was

on his way Sukhlal (R-2) alongwith Ajit (R-3), Vijay (R-4) and Tularam (R-

5) came there. Thereafter Sukhlal stated that he was having bad eye on

his (Sukhlal's) wife. In order to teach a lesson to victim Sukhlal firstly tried

to make a assault by a knife. At the moment, the complainant tried to

avoid the blow and in such process he initially sustained injury on his ear.

Subsequently, Ajit (R-3), Vijay (R-4) and Tularam (R-5) caught hold of the

complainant and Sukhlal chopped of penis of the complainant and

thereafter fled away. In respect of the incident an FIR was lodged on

19/08/2003 at 7.30 at Police Station as Ex.P-1. After investigation of the

incident a charge sheet was filed in the court of JMFC Kawardha. The

court of JMFC in a Criminal Case No.18/2005 by an order dated

27/08/2005 sentenced the respondents/accused as aforesaid. Against

such conviction and sentence an appeal was preferred by the accused

Sukhlal and others. Appellate court of Additional Sessions Judge (FTC)

Kabirdham (Kawardha) by its order dated 3/12/2005 in Criminal Appeal

No.12/2005 acquitted Sukhlal under Section 148 IPC whereas upheld the

conviction of Sukhlal under Section 326 read with 149, 147 IPC and 25 of

the Arms Act whereas the other appellants/accused were convicted under

section 326 read with 149, 147 of IPC. In respect of the jail sentence of

the accused appellate court observed that the appellants were in jail from

20^th August 2003 to 19/10/2004 meaning thereby 13 months and 29 days

they had already spent in jail and it was held to be adequate. The

reasoning were justified by the ground that in spur of moment of

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excitement the incident happened and one of the appellants were shown

to be of 65 years for these reason the time spent in jail was held to be

sufficient. Such judgement dated 3/12/2005 by the appellate court was

subject of revision before this court.

4.

Learned counsel for the applicant would