- (1.) BY order dated 26.6.2015 while admitting this appeal for final hearing direction was given to call for the lower court record from the court concerned and the same has been received. Thereafter Interlocutory Application bearing No. 3527 of 2015 has been filed on behalf of appellant no. 1 with a prayer to enlarge him on bail and further prayer has been made to stay the order of conviction and sentence awarded to him by the trial court.
(2.) MR . Varma, learned senior counsel submitted that appellant no. 1 who is a Member of Legislative Assembly (MLA) along with appellant no. 2 have been convicted under sections 307/34 IPC and sentenced to undergo rigorous imprisonment of seven years with fine of rupees ten thousand with default clause and further convicted under section 387/34 IPC and sentenced to undergo rigorous imprisonment of five years with fine of rupees five thousand with default clause and has also been convicted under section 325/34 IPC and sentenced to undergo rigorous imprisonment of two years and further convicted under section 448/34 IPC and sentenced to undergo rigorous imprisonment for six months. However, all the sentences have been directed to run concurrently.
(3.) IT was further submitted that from the injury report at page 49 of the impugned judgment, it appears that the informant had received four injuries out of which three injuries are lacerated and bruise and simple in nature and one injury was on the right index finger and after X -ray, the doctor who was examined as PW1 found two linear fracture in proximal thalanx of right index finger. Learned counsel further submitted that though PW2 Dr M. Alam has found the injury in the right index finger, but PW1 Dr. A. Sarkar has testified that there was injury in the left little finger of the informant and thus there is vital contradiction in the evidences of these two witnesses. It is also submitted that there was no intention on the part of the appellant no.1 to cause any bodily injury to Dr. Sinha, the informant or there was any attempt on the part of the appellant causing death, but even then the learned court below has convicted the appellant no.1 under section 307 of the Indian Penal Code. Further, learned counsel seriously contended that the appellant no.1 has already been disqualified by the Speaker of the Assembly after the conviction of the appellant, but in view of sub section (4) of section 8 of the Representation of People Act, 1951, if conviction and sentence is stayed within ninety days of conviction, the appellant will not be treated as disqualified. It was also submitted that the present appeal was filed on 25.6.2015 and the same was admitted for final hearing on 26.6.2015 that is well within ninety days. Learned counsel further relying upon the case of Ravikant S Patil Vs. Sarvabhouma S Bagali, 2007 1 SCC 673 submitted that even if the conviction of the appellant no.1 is stayed, it will not cause any prejudice to the other side and relying upon para 14 of the said judgment, learned counsel submitted that it is the duty of the counsel to specifically draw the attention of the Court to the consequences that may arise if conviction is not stayed. Learned counsel has further relied upon the judgment in the case of Rama Narang Vs. Ramesh Narang, 1995 2 SCC 513 and submitted that in that case also (para 16), attention of the court is drawn to the specific consequence which will follow from the conviction and if the court while considering stay under section 389(1) of the Code of Criminal procedure has to consider the specific consequence and in the present case, if the appellant no.1 is disqualified, he will not continue as Member of the Legislative Assembly. Contrary to the aforesaid submission. Learned counsel appearing on behalf of the State relying upon the case State of M.P. Vs. Kashiram, 2009 AIR(SC) 1642 submitted that to justify a conviction under section 307 IPC it is not essential that bodily injury capable of causing death should have been inflicted and it was also submitted that the accused charged under section 307 IPC cannot be acquitted merely because the injury inflicted on the victim is in the nature of simple hurt.;