Amar Bahadur Singh & Others vs State Of U.P.
2018 Latest Caselaw 1885 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 29
 
Case :- CRIMINAL REVISION No. - 129 of 1989
 
Revisionist :- Amar Bahadur Singh & Others
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- D.P.Singh,B.M.Sahai,Ram Kumar Singh,Ram Narain Gupta
 
Counsel for Opposite Party :- Government Advocate
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri R.N.Gupta, learned Counsel for the revisionists and Sri Anirudh Singh, learned A.G.A. for the State.

This criminal revision has been filed challenging the judgment and order dated 26.4.1989 passed by 5th Additional and Sessions Judge, Barabanki in Criminal Appeal No.-60 of 1988 whereby the order of trial court dated 24.6.1988 has been upheld reducing the punishment from 7 years rigorous imprisonment to 5 years rigorous imprisonment maintaining the amount of fine.

By means of the judgment and order dated 24.6.1988 passed by the learned trial court i.e. Assistant Sessions Judge, Barabanki in Session Trial No.-34 of 1986 under Sections 323/324/307 IPC Police Station Subeha District Barabanki, the accused persons were awarded 7 years of rigorous imprisonment with the fine of Rupees 2,000/- each, in case of failure to deposit the fine, they were directed to undergo 6 months more rigorous imprisonment.

However, accused Bajrang Singh and Amar Bahadur Singh were punished under Section 144 IPC also with the punishment of 2 years rigorous imprisonment besides the punishment awarded under Section 307/149 IPC, directing that all the punishment shall run concurrently.

The brief facts of the case giving rise the instant revision are that the complainant Ram Sanjivan lodged an F.I.R. on 27.8.1985 at about 12:45 P.M. for the incident which allegedly took place on the same day at about 11 A.M. The said FIR was lodged at Police Station Subeha District Barabanki. The allegations of the FIR are that the accused Bajrang Singh, armed with Fasra, Amar Bahadur Singh armed with Lathi and Hasia and accused Kandhai, Satyadeo Singh and Ram Kumar Singh armed with lathi made serious murderous assault on the complainant, on his brother Sunder Lal and on his daughter Kumar Gaya Devi.

After lodging the FIR the investigation carried out by the Investigating Officer and the statements of the persons concerned have been recorded.

Accused Bajrang Bahadur Singh and Amar Bahadur were charged under Sections 148/149/307 IPC and accused Kandhai Singh, Setyadeo Singh and Ram Kumar Singh were charged under Sections 147/149/307 IPC.

The accused persons denied the charges and requested for trial. Thereafter trail in this case was proceeded.

The prosecution witnesses and defence witnesses were examined by the trial court and relevant material was perused.

The learned trial court was of the view that injury inflicted upon the injured persons were on account of the personal enmity. However no cogent material or evidence has been adduced specifically in respect of motive in the issue in question. The learned trial court has examined the prosecution witnesses including the Doctor as P.W.-4 and as per the statement of Doctor, the injury in question was so serious that could have caused death.

After considering the statements of prosecution witnesses and defence witnesses and perusing the material on record, the learned trial court was pleased to hold accused Kandhai Singh, Satyadeo Singh, Ram Kumar Singh guilty under Section 147/307 and 149 IPC and accused Bajrang Singh and Amar Bahadur Singh guilty under Section 148/307/149 IPC. Accused Kandhai Singh and Satyadeo Singh and Ram Kumar Singh have been awarded one year rigorous imprisonment under Section 147 IPC and 7 years rigorous imprisonment with fine of Rupees 2,000/- each under Sections 307/149 IPC and in case of failure to deposit the fine of Rupees 2,000/-, they were to undergo 6 months further rigorous imprisonment.

Likewise accused Bajrang Singh and Amar Bahadur Singh have been awarded two years rigorous imprisonment under Section 148 IPC and 7 years rigorous imprisonment and Rupees 2,000/- fine each under Sections 307/149 IPC and in case of failure to deposit the aforesaid fine amount, they were to undergo 6 months further rigorous imprisonment.

Feeling aggrieved out of judgment and order dated 24.6.1988 passed by the learned trial court, the accused persons filed a Criminal Appeal bearing Criminal Appeal No.-60 of 1988 before the 5th Additional and Sessions Judge, Barabanki. The learned Appellate Court heard the learned Counsel for the appellants/accused, learned Government Counsel and learned Counsel for the prosecution and vide judgment and order dated 26.4.1989 dismissed the appeal of the appellants/accused persons and upheld the judgment of learned trial court reducing the sentence of the accused persons from 7 years rigorous imprisonment to 5 years rigorous imprisonment, maintaining the other part of the sentence. In the said judgment of learned Appellate Court, it has categorically been indicated that there is no infirmity or illegality in the judgment of learned trial court dated 24.6.1988 and only on the compassionate ground the sentence is being modified/reduced.

Feeling aggrieved out of aforesaid judgment and order dated 24.6.1988 passed by the learned trial court and judgment and order dated 26.4.1989 passed by the learned Appellate Court, the accused persons filed the instant revision, on the ground that both the learned courts below has not considered the material evidences on record viz-a-viz the arguments made on behalf of them before the learned courts below.

It has also been submitted by learned Counsel for the revisionists that while punishing the accused persons under Section 307 IPC, the learned trial court has not given his findings as to how he was satisfied that the injuries were so serious which may likely to cause death. It has also been submitted by learned Counsel for the revisionists that one of the accused namely Kanai Singh who is presently no more was at the age of 80 years when the incident took place and it was highly improbable for that old person having such a bad health condition, might have caused those injuries on the injured persons. It has also been submitted that no independent witnesses have been examined by the learned trial court and only those witnesses were examined who were relatives amongst each other. He has also submitted that if it is believe, for the sake of arguments, that the accused persons were having Farsa,Hasia etc. with them, the injuries must have been more serious whereas 3 incised wounds 4 cm. is said to be found on the body of Sunder Lal and two incised wounds 3 cm. were found on the body of the complainant Ram Sanjivan whereas Kumari Gaya Devi sustained minor injuries. Therefore, learned Counsel for the revisionists has submitted that the aforesaid facts and circumstances make the prosecution story improbable and appreciation of such story by the learned trial court is perversity in the law.

Learned A.G.A. has submitted that the learned trial court has passed the judgment and order dated 24.6.1988 strictly in accordance with law, as per procedure prescribed by appreciating the statements of prosecutions witnesses and defence witnesses and material on record. He has further submitted that there is no infirmity or illegality in the order of learned Appellate Court dated 24.6.1989 also in as much as the learned Appellate Court heard the learned Counsel for the appellants and appreciated all the relevant materials/statements on records.

As it is to be noted here that in compliance of the order of learned trial court, the accused persons have already deposited the fine of Rupees 2,000/-. Further, as per the report of Chief Judicial Magistrate, Barabanki dated 3.3.2017 accused Amar Bahadur Singh has been remained in jail for one month and 12 days, accused Bajrang Singh has been remained in jail for one month and 23 days, accused Satyadeo Singh has been remained in jail for one month and 2 days and accused Ram Kumar Singh has been remained in jail for 7 days.

Vide further report dated 22.4.2017 it has been informed that accused Amar Bahadur Singh remained in jail for three months and 10 days, accused Bajrang Singh remained in jail for 3 months and 21 days, accused Satyadeo Singh remained in jail for 3 months and accused Ram Kumar Singh remained in jail for 2 months and 5 days. Since the report dated 22.4.2017 is latest one, therefore, the period in jail for accused persons would be read as per report dated 22.4.2017.

However, learned Counsel for the revisionists has informed that accused Amar Bahadur Singh remained in jail for about 6 months, accused Bajrang Singh remained in jail for about more than 6 months, accused Satyadeo Singh remained in jail for about 5 months and accused Ram Kumar Singh remained in jail for about 2 months. As per learned Counsel for the revisionists, when the appeal of the accused persons were rejected, they were taken into custody and were sent to the jail and were remained in jail for substantial period, which has not been included in this report, therefore, the period for which the accused persons remained in jail have not properly been indicated.

Be that as it may, the accused persons remained in jail for some months. Learned Counsel for the revisionists has submitted that he has nothing to say on merits of the matter but he simply prays that the custodial punishment awarded to the accused persons be reduced to the period already undergone in jail and some fine may be imposed in lieu thereof. He has further submitted that the incidence is of the year 1985 i.e. more than 33 years old and accused Amar Singh is presently aged about 60 years, accused Bajrang Singh is presently aged about 70 years , accused Satyadeo Singh is presently aged about 65 years and accused Ram Kumar is presently aged about 40 years. It has also stated at Bar that the accused persons have not committed any offence whatsoever after the commission of aforesaid incident.

The learned Counsel for the revisionists has cited the judgment of Hon'ble Apex Court reported in (2010) 2 SCC 229 Neelam Behal and another Versus State of Uttarakhand wherein the accused was convicted and sentenced under Section 307 IPC and sentenced him to undergo 7 years rigorous imprisonment but the Hon'ble Apex Court has convicted the accused persons under Section 326 IPC and reduced the sentence to the period already undergone. The learned Counsel for the revisionists has also cited another judgment of Hon'ble Apex Court reported in (2005) 11 SCC 531 Uthem Rajanna Versus State of A.P. wherein the Hon'ble Apex Court has also reduced the sentence to the period already undergone.

Learned Counsel for the revisionists has also cited the judgment of this Court wherein this Court was pleased to take lenient view in a matter which are quite old and the accused persons are aged persons, thereby reducing the sentence to the period already undergone.

In the light of judgments of the Hon'ble Apex Court as well as the judgments of this Court, I am of the view that the ends of justice would suffice if the custodial punishment awarded to the revisionists is reduced to the period already undergone by them in jail and a reasonable amount of fine is imposed upon them.

In these circumstances, I hereby modified the period of sentence. It is directed that the revisionists are sentenced to undergo imprisonment already undergone by them in jail. Besides they are sentenced to pay a fine of Rupees 5,000/- each under Section 307/149 IPC which shall be deposited within a period of one month. It is further provided that such amount of fine i.e. 20,000/-( Rs. 5,000/- X 4 accused persons) shall be provided to the injured persons or to the family members thereof, by the court concerned.

Accordingly, the revision is partly allowed with the modification on the point of sentence only as mentioned above and the conviction is maintained.

Order Date :- 8.8.2018

Jyoti/-