Shitala Prasad And Others vs State Of U.P.
2018 Latest Caselaw 2513 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 50
 
Case :- CRIMINAL APPEAL No. - 2087 of 1988
 
Appellant :- Shitala Prasad And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ravindra Singh,Akhilesh Singh,Shivam Yadav
 
Counsel for Respondent :- A.G.A.,Narendra Deo Shukla,V.K.Baranwal,Yogendra Kumar
 

 
Hon'ble Harsh Kumar,J.

The present appeal has been filed against judgment and order of conviction dated 9.9.1988 passed by IV Additional District and Sessions Judge, Jaunpur in Sessions Trial No.108 of 1986 (State vs. Shitala Prasad and others) in case crime no.117 of 1984, P.S. Rampur, District Jaunpur under sections 147, 148 and 323, 324, 326 & 307 read with section 149 I.P.C. wherein the learned trial court held all the accused guilty and convicted them for the offence under section 147, 148 and 323, 324, 326 and 307 read with 149 I.P.C. and sentenced them with rigorous imprisonment for a period of 6 months under section 147 I.P.C., with R.I. for a period of 6 months under section 323/149 IPC, with R.I. for a period of one year under section 324/149, with R.I. for a period of 2 years under section 326/149 and with R.I. 3 years under section 307/149 I.P.C. and find of Rs.300/- under section 307/149 I.P.C. and accused Shitala Prasad, Lal Chand, Panna Lal, Nand Lal, Baliram, Umashankar and Paras Nath were also convicted and sentenced with R.I. for a period of one year under section 148 I.P.C.

The prosecution case in brief is that Govardhan lodged a F.I.R. against the appellants on 17.7.1984 at 1.30 p.m. with the allegations that, on 16.7.1984 at about 5.00 p.m. his brother Baliraj was working at his Maize (Makka) field when accused appellants armed with Ballam, Gadasa and lathi came there and upon exhortation by accused-appellant, Ram Shiromani to cause death of first informant Govardhan and his brother Baliraj, they assaulted on them with an intention to cause their deaths and when Guddan came for their rescue the accused-appellants also caused injuries to him resulting in fracture of two teeth of first informant Govardhan and one teeth of Guddan. Upon completion of investigation and submission of charge sheet, the case was committed to sessions and charges were framed against the accused- appellants under sections 147, 148, 323/34, 324/34, 326 and 307/34 I.P.C. The prosecution produced Govardhan as P.W.-1, Laxmi Narayan Singh as P.W.-2, Baliraj as P.W.-3, Anwarul Ajij as P.W.-4, Dr. Chandrabhushan Upadhyay as P.W.-5, Amar Nath Tiwari as P.W.-6 and Dr. S.K. Rai as P.W.-7 to prove the charges. After completion of prosecution evidence statements of accused persons were recorded under section 313 Cr.P.C. and after hearing parties counsel, the learned trial court passed the impugned order of conviction.

During pendency of appeal, accused appellant nos.8 and 9 Ram Adhar and Ram Shiromani were reported to have died and appeal in respect of them was abated vide order dated 5.7.2016.

Heard Shri Akhilesh Singh learned counsel for the appellants, Shri N.D. Shukla learned counsel for the first informant, Shri L.D. Rajbhar learned A.G.A. for the State and perused the record.

The learned counsel for appellants raised a short point in the appeal that the conviction of appellants under section 307 I.P.C. is wrong and incorrect because none of the injuries sustained by 3 injured persons were on vital parts of body or grievous in nature, which may be considered to be dangerous to their lives and in view of evidence on record offence of accused appellants if any does not travel beyond the scope of provisions of Section 326 I.P.C; that the conviction of appellants under section 307 I.P.C. is liable to be set aside.

He further contended that the surviving appellant nos.1 to 7 were respectively aged about 65, 48, 25, 26, 32, 25, 21 years old at the time of recording their statements under section 313 Cr.P.C. on 29.6.1989 and after 29 years since then now respectively they have attained approximate age of 94, 77, 54, 55, 61, 54 and 50 years; that they were released on bail in furtherance of order dated 16.9.1988 in this appeal and in case they are again asked to got to prison after 29 years of their release, they will suffer great hardship and mental agony and it would not be just or expedient in the interest of justice to put them in prison again for the 34 years old petty offence; that there may be no justification for re-sending them to prison after a period of 29 years; that the conviction of appellants under section 307/149 I.P.C. is wrong and is liable to be set aside and in view of the fact that appellants are facing the trial since last 30 years,and there is no other criminal incident to their credit prior or subsequent to the incident in question their sentence may kindly be reduced to the period of imprisonment already undergone and reasonable amount of fine may be imposed on them and appeal may kindly be allowed accordingly.

In support of his arguments, he relied on a decision of the Apex Court in the case of Ayub and others Vs. State of U.P. dated 4.11.1993 reported in AIR 1994 SC 1064 where the Apex Court considering that the incident was 18 years old, reduced the sentence to the period already undergone with an imposition of fine.

Per contra, learned counsel for the first informant and learned A.G.A. supported the impugned judgement and order and contended that all the 9 accused-appellants armed with deadly weapons, assaulted the first informant, his brother as well as Guddan and caused multiple injuries to them, out of which 6 injuries of first informant Gobardhan, two injuries of Guddan and one injury of Baliraj were kept under observation and found to be grievous in nature; that it is wrong to say, that no offence under section 307 I.P.C. is made out against the accused-appellant; that offence under section 326 I.P.C. is also punishable with life imprisonment or imprisonment for a period which may extend upto 10 years; that the learned trial court has already imposed very low sentence and there is no sufficient ground reducing the sentence any further on account of the old age of appellants as wll as in view of the fact that the incident in question did take place about 34 years ago.

Upon hearing parties counsel and perusal of record, paper book as well as lower court record summoned in appeal, I find that undisputedly a prompt F.I.R. of the incident has been lodged by the first informant who himself sustained as many as 18 injuries including lacerated wounds at the root of medial incisor, at inner surface of upper jaw, lower lip and forearm as well as incised wounds over left knee and injured Guddan has sustained punctured wound in abdomen while injured Baliraj sustained punctured wound over right forearm.

The perusal of evidence on record shows that no injury of any of the 3 injured persons is alleged to be on chest or head, the vital parts of the body though P.W.-5 has stated that injury no3 the punctured wound of Guddan could have been dangerous to his life, and possibility of death of first informant on account of cummulative effect of all injuries, may not be ruled out but in absence of any supplementary report on record the punctured wounds of injured Guddan and Baliraj which were stab wounds may also be considered to be dangerous to their lives. According to the accused persons the injured persons were damaging their Maize crop (Makka) sowed by Dayaram @ Bhayyalal and upon being asked not to desist from damaging the crop, they committed marpeet.

In view of the discussions made above, I find that the conviction of appellants under section 307/149 I.P.C. by the trial court is not in conformity with the evidence on record and is liable to be set aside. In this matter relating to 34 years old incident when accused-appellants have become old in due course of time and no other criminal antecedent is alleged to be in their credit prior and subsequent to the incident in question, I find that if their sentence of imprisonment is reduced to the period already undergone with imposition of reasonable amount of fine it will meet the ends of justice. The appeal is accordingly liable to be partly allowed with modification of sentence.

The appeal is partly allowed. The impugned judgement and order of conviction of accused appellants under section 307/149 I.P.C. is set aside and the appeal is partly dismissed in other respects and the conviction of accused-appellants under sections 147, 148, 323/149, 324 and 326/149 I.P.C. is affirmed. However, the sentence imposed on them is modified as under :-

Each of the accused-appellants is sentenced (i) with rigorous imprisonment for a period already undergone under section 147 I.P.C. (ii) with imprisonment for a period already undergone under section 148 I.P.C. (iii) with imprisonment for a period already undergone and and fine of Rs500/- under section 323/149 I.P.C, (iv) with imprisonment for a period already undergone and fine of Rs.1,000/- under section 324/149 I.P.C. and (v) with imprisonment for a period already undergone and fine of Rs.2,000/- under section 326/149 I.P.C. All the sentences will run concurrently. The amount of fine will be deposited by appellants within two months failing which each of the defaulter in payment of fine will undergo additional period of simple imprisonment for a period of 1 month, 2 months and 3 months respectively for default in payment imposed under sections 323/149, 324/149 and 326/149 I.P.C.

The appellants are on bail. Their personal bonds are cancelled and sureties are discharged. They need not surrender unless wanted in some other case or makes default in payment of fine, in which case each defaulter will surrender and undergo default sentence.

Let the lower court record be sent back to court below forthwith, along with a copy of this judgement, for ascertaining necessary compliance.

The material exhibits, if any, be disposed of after statutory period in accordance with rules.

Order Date :- 12.9.2018

VS