Ziledar & Another vs State Of U.P.
2018 Latest Caselaw 2549 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 50
 
Case :- CRIMINAL APPEAL No. - 782 of 1988
 
Appellant :- Ziledar & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- A.Rathore,Satyam Singh,Shiv Nath Singh
 
Counsel for Respondent :- A.G.A.
 
AND
 
Case :- CRIMINAL APPEAL No. - 1033 of 1988
 
Appellant :- G.Singh
 
Respondent :- State
 
Counsel for Appellant :- R.D. Singh,Satyam Singh,Shiv Nath Singh
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Harsh Kumar,J.

1. The present criminal appeals have been filed against the impugned judgment and order dated 5.4.1988 passed by VI Additional Sessions Judge, Kanpur Dehat in S.T. No.251 of 1985 (State Vs. Ziledar and four others), convicting accused-appellants Ziledar under Sections 325/149 & 148 I.P.C. and sentencing with rigorous imprisonment for a period of 3 years and 1 year respectively and convicting rest of the accused persons namely Gore Singh, Sheo Shanker Tewari, Mole Singh, Channapal Singh and sentencing them under Sections 325/149 & 147 I.P.C. with rigorous imprisonment for a period of 3 years and 1 year respectively.

2. The brief facts relating to the case are that, one Kashi Prasad lodged a F.I.R. at P.S. Ghatampur, District Kanpur Dehat at 8:05 p.m. against 6 persons Ziledar Singh, Gore Singh, Shiv Shanker Tiwari, Bhole Singh, Bade Singh and Channa Pal, with the allegations that, "on 7.11.1984 his brother Shiv Prasad was collecting fodder from his fields near the field of Daya Ram in which the crop of Jwar was ripe and over which there was some dispute with Thakurs of village Shitalpur; that at about 3:00 p.m. the named accused persons of village Shitalpur and Channapal Singh of his village were harvesting the crop of Jwar in the disputed field upon which Ram Nath, Hari Lal, Daya Ram, Ram Kumar Singh and Kallu asked them to desist from harvesting disputed crop, which all these persons armed with Lathi, Danda, Kanta and Barchhi assaulted them; that his brother Shiv Prasad @ Puttu, who had also reached there in the meantime was stabbed with Barchhi in his abdomen apart from which Ram Nath and Hari Lal also sustained injuries."

3. Upon investigation charge-sheet was submitted against all the named accused persons except Bade Singh. Charges were framed against Ziledar under Sections 148 & 307 I.P.C. and against other four accused persons under Sections 147 & 307/149 I.P.C. The accused persons denied the charges and demanded trial. The prosecution in order to prove charges produced injured Shiv Prasad @ Puttu as P.W.-1, first informant Kashi Prasad as P.W.-2, injured Ram Nath as P.W.-3 and eye witness Daya Ram as P.W.-4, the witnesses of fact. Apart from which four formal witnesses Dr. V.K. Gupta, who examined Hari Lal and Ram Nath at P.H.C., Ghatampur as P.W.-5, I.O. Afaq Hussain as P.W.-6, Head Constable Chhote Lal as P.W.-7 and Dr. R.K. Gupta, Radiologist as P.W.-8 were also examined by prosecution before closing evidence. After completion of prosecution evidence the statements of accused persons were recorded under Section 313 Cr.P.C. and after hearing the parties counsel, learned trial court passed the impugned judgment and order of conviction dated 5.4.1988 convicting Ziledar under Section 325/149 and Section 148 I.P.C. and other four accused persons under Sections 325/149 & 147 I.P.C. and sentenced them with 3 years rigorous imprisonment under Section 325 I.P.C. and 1 year rigorous imprisonment under Sections 148 & 147 I.P.C. Feeling aggrieved, Ziledar, Mole Singh and Channa Pal Singh filed Criminal Appeal No.782 of 1988 and Gore Singh and Shiv Prasad Tiwari filed Criminal Appeal No.1033 of 1988.

4. During pendency of appeal, appellant no.1 Ziledar and appellant no.3 Channapal Singh in Criminal Appeal No.782 of 1988 were reported to be dead and appeal in their respect was abated vide order dated 6.2.2017.

5. Heard Sri S.N. Singh, learned counsel for the surviving appellants, in two appeals, Sri L.D. Rajbhar, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal.

6. Learned counsel for the appellants contends that the appellants have been falsely implicated; that the appellants had no motive to participate in the incident in question; that accused appellant Ziledar was having motive to commit the incident and he has been assigned with the role of causing stab wound with Barchhi in the abdomen of Shiv Prasad @ Puttu while the surviving appellants Gore Singh, Shiv Shanker Tiwari, Mole Singh have been assigned with the role of committing mar-peet with lathies and causing injuries to injured Ram Nath and Hari Lal; that the prosecution has failed to produce Hari Lal, who is alleged to have sustained fracture of ulna bone of his right hand and injured Ram Nath, who is alleged to have sustained four lacerated wounds on skull did not suffer any fracture as his X-ray report states NAD; that prosecution witness no.1 Shiv Prasad @ Puttu the injured witness and Kashi Prasad the first informant have not supported the prosecution case and turned hostile while there are material contradictions in the statements of injured witness P.W.-3 Ram Nath and alleged eye witness P.W.-4 Daya Ram; that learned trial court has acted wrongly and illegally in convicting the appellants for the offences under Sections 325/149 and 147 I.P.C. and even if they are held guilty for causing lathi injuries to Ram Nath, this offence does not travel beyond provisions of Section 323 I.P.C.; that the appellants Mole Singh, Gore Singh and Shiv Shanker Tiwari were aged about 32 years, 38 years and 40 years respectively at the time of recording of their statements under Section 313 Cr.P.C. on 28.1.1988 and during last more than 30 years they have attained the age of approximately 62 years, 68 years and 70 years respectively; that the appellants are facing trial since last more than 33 years and were bailed out in the appeals about 30 years back in furtherance of orders dated 7.4.1988 and 2.5.1988; that the appellants had been in custody for some time during trial and are in custody since 14.8.2018 in furtherance of the order issuing non-bailable warrants against them passed in the appeals; that since the appellants have gone old and there is no other criminal antecedents to their credit prior to or subsequent to the incident in question in the interest of justice their sentence may kindly be reduced to the period already undergone and reasonable fine may kindly be imposed on them.

7. Per contra, learned A.G.A. for the State supported the impugned judgment and order of conviction and contended that learned trial court has carefully analysed the prosecution evidence on record in detail and has rightly convicted them for the offences as mentioned in the judgment; that all the accused persons armed with deadly weapons viz. Lathi, Danda, Kanta, Barchhi formed an unlawful assembly and in furtherance of common object of such unlawful assembly committed the incident in question attempted on the life of injured persons wherein the accused appellants actively participated and indiscriminately charged lathi and caused multiple injuries, two head injuries to Hari Lal with fracture of his right hand ulna bone and four head injuries to Ram Nath; that the accused persons were tried for the offence under section 307 I.P.C. though the learned trial court has convicted the accused-appellants only for the offences under sections 325/149, 147 & 148 I.P.C. and imposed sentence on very lower side; that the appeals have been filed with absolutely false and baseless allegations and is liable to be dismissed.

8. Upon hearing the parties' counsel and perusal of paper-book as well as the original record of court below summoned in the appeal, I find that non production of injured Hari Lal does not adversely affect the prosecution case when his injuries are proved from the injury report and X-ray report duly proved by Medical Officer Dr. V.K. Gupta, P.W.-5 and Senior Radiologist Dr. R.K. Gupta P.W.-6. It is proved from the evidence on record that as many as four injuries were sustained by Hari Lal and four injuries were sustained by injured Ram Nath out of which two injuries of Hari Lal were on head and all the four injuries of Ram Nath were on head. The two injuries of Hari Lal were on his hands out of which in injury no. 3 fracture of his right ulna bone was detected upon X-ray. It is not disputed that all the three surviving appellants have been assigned with the role of causing injuries to injured persons with lathi. There is no material contradiction in the statements of the prosecution witnesses Ram Nath and Daya Ram, who are the injured witness and eye witness respectively, rather their statements are consistent and duly corroborated by medical evidence on record. If due to influence or apprehension from accused-persons or otherwise, the first informant and his injured brother, turned hostile, the proseuction case may not be thrown out in view of settled principles of law. The argument raised by learned counsel for the appellants that place of occurrence is not proved, as no blood was collected by the I.O. from the spot, also has no force, in view of the fact that for the laches, if any, on the part of the I.O., the prosecution case may not be adversely affected and also in view of the fact that the place of occurrence has not been disputed by accused persons.

9. In view of the discussions made above, I have come to the conclusion that there is no illegality or incorrectness in the impugned judgment and order of conviction. However, considering the fact that the surviving accused-appellant Mole Singh in Criminal Appeal No. 782 of 1988 and accused-appellants Gore Singh and Shiv Shankar Tiwari in connected Criminal Appeal No. 1033 of 1988 have now attained the age around 62 years, 68 years and 70 years and the incident in question is alleged to have taken place about 34 years back over property dispute with regard to harvesting of Jwar crop. I find that even upon affirming the conviction if the sentence of accused-appellants is reduced to the period already undergone and fine is imposed on them, it will meet the ends of justice. The appeals are accordingly liable to be dismissed with modification of sentence.

10. The appeals are dismissed. The impugned judgement and order dated 5.4.1988 convicting the appellants Mole Singh, Gore Singh and Shiv Shanker Tiwari for the offences under sections 325/149 & 147 I.P.C. is affirmed. However, the sentence is modified and reduced in the manner that each of the three appellants is sentenced with rigorous imprisonment for a period already undergone under section 147 I.P.C. and further sentenced with rigorous imprisonment for a period already undergone and fine of Rs. 10,000/- (to be deposited within one month) under Section 325/149 I.P.C., failing which the defaulter will undergo simple imprisonment for an additional period of 2 months under section 325/149 I.P.C.

11. The appellants are in custody, they shall be released forthwith on deposit of fine or upon compeltion of default sentence ( which ever is earlier) unless wanted in some other case.

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

13. Let lower court record be sent back to court below forthwith along with a copy of this order for ascertaining necessary compliance, if any.

Order Date :- 13.9.2018

Kpy/Bhanu