Kedar & Another vs State Of U P
2017 Latest Caselaw 4114 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1925 of 2016
 

 

 
Appellant :- Kedar & Another
 
Respondent :- State Of U P
 
Counsel for Appellant :- Nripendra Mishra,Avinash Chandra,Rajesh Chandra Mishra
 
Counsel for Respondent :- Govt. Advocate,Ashish Raman Mishra
 

 
Hon'ble Satya Narain Agnihotri,J.

1. Being aggrieved with the judgment and order dated 29.11.2016 passed by Additional Sessions Judge/Special Judge (Essential Commodities Act), Bahraich in Sessions Trial No.301 of 2004, under Sections 323/34 and 452 I.P.C. arising out of Case Crime No.263 of 1996, under Sections 323/34, 308/34 and 452 I.P.C., Police Station Dargah Shareef, District Bahraich, whereby learned Trial Judge held guilty to accused appellants Kedar and Vajaee under Sections 323/34 and 452 I.P.C. and sentenced under Section 323/34 I.P.C. for imprisonment of one year with fine of Rs.1,000/- and under Section 452 I.P.C. for two years rigorous imprisonment with fine of Rs.5,000/- to each of the accused appellants and in default of payment of fine additional imprisonment of two months and three months respectively, appellants preferred this appeal.

2. According to the prosecution in the intervening night of 10/11.10.1996 at about 2 A.M. accused Vijay Kumar along with two-three other accused persons entered in the house of complainant Sitaram and caused injuries to his son Saktu Ram and daughter-in-law Smt. Reena Devi with stick. When injured Saktu Ram and Smt. Reena Devi raised alarm then complainant and his other sons came on the spot to save his son and daughter-in-law and hearing the noise of quarrel few persons of the vicinity also came there who tried to apprehend the accused persons but they managed to escape away from the place of occurrence. Due to non availability of conveyance as the incident took place in wee hours, the complainant went to police station in the morning along with his son and daughter-in-law and submitted an application Exhibit Ka-4 in pursuance of which a formal F.I.R. Exhibit Ka-1 was registered. After registration of the F.I.R. injured Saktu Ram and Smt. Reena Devi were sent to District Hospital Bahraich where the injury of both the injured persons were examined by the Emergency Medical Officer, the injury reports are Exhibits Ka-2 and Ka-3. The Investigating Officer visited the place of occurrence on 13.10.1996 and prepared site plan Exhibit Ka-5 and after completion of investigation submitted charge-sheet against appellants and other accused persons which is Exhibit Ka-6.

3. To bring home the guilt of the accused/appellants, prosecution examined witnesses (for brevity P.Ws.) P.W.-1 Constable Pramod Kumar Verma, who recorded and proved the Chik F.I.R. Exhibit Ka-1.

4. P.W.-2 Sri Saktu Ram injured who proved that in the intervening night of 10/11.10.1996 when he along with his wife was sleeping in a room of his house, the accused persons entered in their house and started beating them and caused injuries. P.W.-2 further proved that at the time of occurrence a lantern was lightening in the light of which he identified and recognized the assailants who were Vijay Kumar, Vijaee and Kedar.

5. P.W.-3 Dr. Om Prakash Pandey, who examined the injuries of Saktu Ram and Smt. Reena Devi, proved injuries of both the injured and further stated that he examined Smt. Reena Devi on 11.10.1996 at 10.30 A.M. and following injuries were found on the person of Smt. Reena Devi:-

(i) A contusion on the upper eyelid of left side, size 3 cm. X 1 cm, ē central abrasion.

(ii) A contusion on the radial aspect of the index finger, 3.5 cm x 1 cm in the area of the proximal phalanx.

(iii) Pain in the back.

According to doctor all injures were simple in nature and were caused about 6-12 hours prior to the examination and caused by a blunt and hard object.

6. P.W.-3 Dr. Om Prakash Pandey further stated that on that very date at about 10.40 A.M. he examined Saktu Ram and following injuries were found on his person:-

(i) A lacerated wound 5 cm x 5 cm x muscledcep on left side of occipital region, 8 cm above the left ear.

(ii) Lacerated wound 3 cm x .5 cm x muscledcep. 3 cm above the injury No.1 and 06 cm above the left ear. The injury is on the left side of parital region.

(iii) Lacerated wound 2 cm x 4 cm, muscledcep. On the left side of parital region, 4 cm anterior to the injury No.ii.

(iv) Bruise across the back of thorax 15 cm x 1.5 cm, 16 cm below the C7 on the both side of back.

According to doctor Pandey all injuries were about 6 to 12 hours old and caused by blunt and hard object and were simple in nature.

7. P.W.-4 Smt. Reena Devi in her statement supported the statement of P.W.2 Shri Saktu Ram.

8. P.W.-5 Shri Sitaram who is complainant, stated that on the cries of his son and daughter-in-law he reached at the place of occurrence and had seen that accused persons Vijay Kumar and Kedar with another co-accused were beating them with sticks. He also made an alarm and tried to strike the accused persons but they manged to escape from the place of occurrence. He further stated that due to night he could not get any means of transport thats why he went to police station in the morning where written F.I.R. was lodged.

9. Under Section 313 Cr.P.C. the accused persons denied the allegations levelled by the prosecution against them and further stated that victims Shri Saktu Ram and Smt. Reena Devi were injured by unknown persons and due to enmity they have falsely been implicated in this case.

10. Heard Sri Rajesh Chandra Misra, Advocate for the appellants, Sri P.K. Singh, A.G.A. for the State and gone through the record.

11. P.W.-5 Shri Sitaram complainant, in his statement categorically stated that in the intervening night of 10/11.10.1996 at about 2.00 A.M. he heard loud cries of his son and daughter-in-law, then he reached there and saw that Vijay Kumar and Kedar along with another co-accused were beating them with sticks. He further narrated that when he tried to nab the accused persons they managed to escape from the place of occurrence. He further narrated that he had identified and recognized accused persons at the time of occurrence.

12. P.W.-2 Shri Saktu Ram and P.W.4 Smt. Reena Devi supported the prosecution version in their statement, and both also supported the statement of each other. They narrated that on the date of incident they were sleeping inside the room in their house and at about 2.00 P.M. accused persons entered in the house and assaulted them with sticks and caused injuries on their person. They further narrated that a lantern was lightening in the house in the light of which they identified and recognized the assailants. They further narrated that accused appellants along with co-accused Vijay Kumar beaten them with sticks and caused several injuries which were examined by doctor in District Hospital, Bahraich. These two injured witnesses were cross-examined by the accused persons but nothing could be extracted in favour of the accused/appellants. The statements of both these injured witnesses are quite natural and believable.

13. P.W.-5 Shri Sitaram, who is complainant and proved F.I.R. Exhibit Ka-4 supported the version of F.I.R. in his statement. This witness was also subjected to cross-examination but nothing unearthed in favour of the accused persons and thus statement of P.W.-5 is also believable.

14. P.W.-1 Constable Shri Pramod Kumar Verma and P.W.-6 Constable Shri Maha Deo Prasad are the witnesses of formal nature who proved G.D. and charge-sheet which are Exhibit Ka-5 and Ka-6 respectively.

15. Learned counsel for the accused appellants submitted that there is material contradiction in the statement of P.W.-2 Shri Saktu Ram and P.W.-4 Smt. Reena Devi. Smt. Reena Devi stated in her statement that accused appellants along with another co-accused dragged her and her husband in the courtyard, whereas P.W.-2 did not narrate this fact in his statement. In the light of the above submission of learned counsel for the appellants, I have revisited the statement of P.W.-2 Shri Saktu Ram and P.W.-4 Smt. Reena Devi and found that the house in which incident in question took place, was surrounded by four corner walls and in that very house both the victims were sleeping in a room and outside this room there is open place. If P.W.-4 stated and admitted that accused appellants along with another co-accused dragged her and her husband in the courtyard then it cannot be made a basis for acquittal of the accused appellants because room and courtyard both are adjacent to each other.

16. No other argument has been advanced by learned counsel for the appellants. In the circumstances, I have gone through the entire evidence tendered by the prosecution and found that statement of both the injured witnesses remain intact and nothing could be drawn in favour of the accused appellants so that it can be imagined that accused applicants were falsely implicated due to enmity. Moreover it is admitted by the appellants that incident took place, but they have not caused injuries to the injured persons. Thus the incident proved beyond doubt. The false implication of appellants is not seems proper and just.

17. In the last, learned counsel for the accused appellants submitted that appellant No.1 Kedar is inside the jail from 19 months and the sentence which was awarded to him is only two years, in the circumstances, the appellant Kedar be released in terms of the sentence which he has already served. Since, the accused appellant Kedar has been held guilty under Section 323/34 and 452 I.P.C. in which the maximum punishment is up to 7 years, in the facts and circumstances in my opinion, the sentence already served by the accused appellant Kedar is sufficient for the offence committed by him under Sections 323/34 and 452 I.P.C.

18. Learned counsel for the accused appellants further submitted that accused Vijaee is on bail and it is his first offence thats why he be given the benefit of Section 360 Cr.P.C.

19. After perusing the record, I find that the prosecution has not proved that accused has already been held guilty or is being tried in any other case. Since the accused appellant Vijaee has been punished under Section 323/34 and 452 I.P.C. in which maximum punishment is upto 7 years, in the circumstances, I think it proper to extend the benefit of Section 360 Cr.P.C. to accused appellant Vijaee.

20. Appeal is partly allowed, conviction order passed by the learned trial Judge dated 29.11.2016 is maintained. However, the sentence passed by the learned trial Judge is modified to the extent of period already undergone by the accused appellant Kedar.

21. The accused appellant Vijaee be released on probation with the stipulation that he shall furnish a personal bond and two sureties of like amount to the satisfaction of the trial court and further will give undertaking that he shall maintain peace and good behaviour for a period of one year and upon calling he shall surrender himself in the court for punishment. The order regarding fine of accused appellants is maintained. The fine shall be paid within two months from the date of judgment. The half of the amount of fine shall be paid to the victims as per provisions of Section 357 Cr.P.C.

22. Let this judgment be notified to the learned trial court for compliance and report of compliance be submitted within one and half month from the date of judgment.

23. Record be sent back immediately.

Order Date :- 8.9.2017

Rakesh