Rajesh & Another vs State Of U.P.
2017 Latest Caselaw 3006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 14									       A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 423 of 2004
 

 
Appellant :- Rajesh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ravindra Nath Rai,Ashok Kumar Rai
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Shailendra Kumar Agrawal,J.

1. This Criminal Appeal has been preferred by the appellants Rajesh and Chhedi against the judgment and order dated 14.01.2004 passed by the learned Additional Sessions Judge, Court No.10, Varanasi in Sessions Trial No.3 of 2001 (State Vs. Chhedi and others), arising out of case crime no.15 of 1999, under Sections 147, 148, 304, 323, 504 IPC, P.S. Shivpur, District Varanasi, whereby the appellants were convicted and sentenced under Section 323 IPC for one year's rigorous imprisonment.

2. Filtering out the unnecessary details, the prosecution story in brief is that on 07.02.1999 at about 8.00 o' clock in the morning a Panchayat was going on between the informant/ PW-1 Rajendra Prasad and the accused persons namely Chhedi, Sachchan, Rajesh, Virjan and Mansha regarding construction of tank of pumping set, but the accused persons did not ready to accept the decision of Panchayat and abusing the informant climbed at roof and started throwing brickbats, due to which the persons present there, received injuries; brother of informant namely Amar Nath sustained serious injuries and he was admitted in Kabir Chaura Hospital, where he died on 08.02.1999 at 7.00 o' clock in the morning; the informant, his brother Ram Chandra and Ramjeet also sustained injuries; several persons present in the Panchayat had seen the incident; written report of this incident was given by the informant on 08.02.1999 at Police Station Shivpur, on which the case was registered against accused persons namely Chhedi, Sachchan, Rajesh, Virjan and Mansha in case crime no.15 of 1999, under Sections 147, 148, 304, 323, 504 IPC and the same was also entered in General Diary (GD) at the same time; on 08.02.1999, the informant and his brother Ram Chandra present at the Police Station, were sent for medical examination at S.S.P.G. Hospital, Kabir Chaura; investigation was commenced by S.I. Avinash Chandra Sinha, who recorded the statements of informant Rajendra, his brother Ram Chandra, Ram Ji and Bachchan on 08.02.1999 and after inspecting the spot prepared site plan; he also got prepared the inquest report, photo nash etc. and after completing necessary formalities sent the dead body for postmortem; the further investigation was done by S.I. R.D. Singh, who after completion of investigation submitted charge sheet against accused persons for the offence under Sections 147, 148, 323, 304, 504 IPC.

3. Fifth Additional Chief Judicial Magistrate, Varanasi after taking cognizance committed the case to the court of sessions.

4. After hearing all accused persons, the learned trial court framed charges against the accused persons for the offences under Sections 147, 148, 323/149 and 304/149 IPC, to which the accused persons pleaded not guilty and claimed to be tried.

5. To prove its case, the prosecution has examined as many as seven witnesses namely PW-1 informant Rajendra, PW-2 Ram Chandra, PW-3 Ramjeet, PW-4 Dr. O.P. Tiwari, PW-5 Dr. Sayeed Ahmad, PW-6 SI Avinash Chandra Sinha, PW-7 SI R.D. Singh and also got proved the documents by respective witnesses as written report of the incident, postmortem report of deceased Amar Nath, injury reports of Ram Chandra and Rajendra, site plan, inquest report, police paper no.13, photo nash, charge sheet, chik FIR and copy of GD regarding registration of case.

6. The following ante-mortem injuries were found on the corpse of deceased Amarnath:-

(1) Lacerated wound 3 cm x 1cm x bone deep on the right side head, 10 cm above the ear and 9 cm above the right eye brow.

(2) Contusion in area of 12 x 5 cm on the right side back of chest and abdomen. 20 cm from right elbow and 6 cm from midline.

(3) Contused swelling 12 cm x 8 cm on the left side forehead and head 4 cm above the left eye brow.

On internal examination, the frontal bone and both side temporal bone and parietal bone were found to be fractured. Subdural and extradural hematoma were present. The cause of death was opined coma as a result of head injury.

7. The following injuries were found on the person of injured Ram Chandra:-

(1) Abraded contused swelling 4cm x 3cm on the 2nd phalanx of right index finger.

(2) Abrasion 0.5cm x 0.5cm on the palmar aspect of right hand at back of right index finger.

8. The following injuries were found on the person of injured Rajendra:-

(1) Lacerated wound 2cm x ½ cm x scalp deep on left side head 6 cm from left pinna.

(2) Seabed abrasion 2 ½ cm x 2 cm on the front of right knee joint.

(3) Seabed abrasion 3 cm x ½ cm on the outer aspect of left thigh.

As per opinion of doctor, injuries of both the injured were simple in nature and had been caused with blunt object.

9. All accused-appellants in their statements u/s 313 Cr.P.C. have denied all material facts of the prosecution and stated that they have been falsely implicated and the witnesses have deposed falsely against them. They have also stated that the informant's side was forcibly trying to construct a tank on the land of accused persons and when this work was obstructed, a free fight took place between the parties and both sides have received injuries. A case was registered from the side of the accused persons and to save their skin, the informant's side has initiated the present case. From defence side, DW-1 Sayeed Ahmad, DW-2 Dr. S.C. Singh and DW-3 SI Pancham Giri were also examined and certain documentary evidences were also produced.

10. After scrutinizing and appreciating the evidence available on record, the learned trial court recorded a finding of conviction of accused-appellants Rajesh and Chhedi for the offence under Section 323 IPC and acquitted the remaining accused from all charges as aforesaid and there is nothing on record that any appeal has been filed by the State or complainant against the impugned judgment and order of acquittal.

11. Heard Sri Ravindra Nath Rai, learned counsel for the appellants and Sri Pradeep Kumar, learned A.G.A. for the State.

12. Learned counsel for the appellants did not make any argument regarding merit of the case and did not challenge the findings recorded by the learned trial court. Learned counsel for the appellants at the very outset conceded that so far as conviction part of the appellants is concerned, the opinion by the learned trial court does not suffer from any error.

13. Learned counsel for the appellants did not harp much so far as the conviction of the appellants under Section 323 IPC is concerned, hence the detailed examination of evidences is hereby eschewed. The main thrust of the arguments of the learned counsel for the appellants is that that there was no intention of the accused persons to assault informant's side and the sentence be reduced to the period already undergone and fine only. Learned A.G.A. also had no serious arguments on the said score as he has also conceded to the fact that the appeal is old one and the sentence is only for one year and more than 13 years have elapsed, but the appeal could not be decided.

14. Not pressing the criminal appeal after the conviction of the accused by the Court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

15. In case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:-

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

16. In Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, the Hon'ble Apex Court has reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:-

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

17. I have given a thoughtful consideration on the overall facts and circumstances. There is nothing on record that the appellants have any criminal history. Prosecution has failed to bring on record any material which disqualifies the applicants from their sentence being modified.

18. In these circumstances, I agree with the arguments of the learned counsel for the appellants that only by sending the appellants to jail will not serve the purpose and on an overall consideration of above and other attending facts and circumstance, I am of the view that the period of imprisonment awarded by the learned trial court for one year under Section 323 IPC, may be reduced to the period of imprisonment already undergone and also with a fine of Rs.1000/-.

19. In view of the above, the appeal filed by the appellants is allowed in part, whereas the conviction of the appellants by impugned judgment and order is hereby maintained. Their sentence is reduced to the period of imprisonment already undergone by them with fine of Rs.1000/- each. The appellants Rajesh and Chhedi are permitted to deposit fine within a period of one month from today, failing which they have to undergo two months' simple imprisonment. Concerned court will take all possible steps for realization of fine.

20. Let a certified copy of this judgment be sent to the concerned court immediately for intimation and immediate compliance.

Order Date :- 4.8.2017

Anoop