Bankey Lal & Others vs State
2018 Latest Caselaw 2676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 AFR
 
Court No. - 50                                           
 

 
Case :- CRIMINAL APPEAL No. - 2507 of 1982
 
Appellant :- Bankey Lal & Others
 
Respondent :- State
 
Counsel for Appellant :- Amar Saran,C.S.Saran,D. Swaroop,D.K.Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Harsh Kumar,J.

1. This Criminal Appeal has been filed against the judgement and order dated 22.9.1982 passed by learned V-Additional Sessions Judge, Bulandshahr in S.T.No.191 of 1982 convicting the appellants and sentencing each of them to three years' R.I. with a fine of Rs.300/-, under section 452 I.P.C. and in default of payment of fine with further simple imprisonment of six months, and for seven years R.I. under section 304 Part I read with Section 34 I.P.C.

2. The brief facts of this case are that Smt.Gokul, wife of the deceased lodged a First Information Report on 24.1.1982 at about 3.15 P.M. at Police Station Aurangaband, District Bulandshahar against Bankey Lal, Kuria and Jagdish with the allegations that "they entered into her house at about 12 in noon, armed with lathi-danda and committed marpit with her husband Chhotey Lal; that on her alarm Hetram, Richpal and other persons arrived at the place of the incident and intervened in the incident in question; that multiple injuries were sustained by her husband and his teeth were also fractured.

3. After lodging of the First Information, injured Chhotey Lal succumbed to the injuries and after addition of section 304 I.P.C. investigation was concluded. The charge sheet was submitted by the Investigating Officer and case was committed to the sessions. Learned Additional Sessions Judge framed charges under section 452 and 304/34 I.P.C. against the accused persons and after completion of prosecution evidence and recording the statements of the accused persons under section 313 Cr.P.C. and upon hearing the argument, passed the impugned judgement and order of conviction convicting the accused persons for the offences under section 452 and 304/34 I.P.C. and sentenced them accordingly.

4. Heard Shri Babu Lal Ram and Shri D.K.Yadav, learned counsel for the appellants, and Shri L.D.Rajbhar, learned A.G.A. for the State.

5. During pendency of the appeal, the accused appellants no.1 Bankey Lal and appellant no.2 Kuria are reported to have died and the appeal in respect of them was abated vide order dated 25.5.2014. Now Jagdish appellant no.3 is only surviving appellant.

6. Learned counsel for the appellant filed a supplementary affidavit with regard to the disablement of sole surviving accused appellant Jagdish and contended that about 55 years old; that appellant Jagdish, is 50% disabled and suffering from "cerebral atrophy with gliosis in right external capsule" as mentioned in his 'Non-contrast CT Head' report dated 12.7.2018 at Guru Teg Bahadur Hospital at SA-1.

7. Learned counsel for the appellant further submitted that the appellants have been falsely implicated due to property dispute; that the incident in question is about 36 years old and the first informant is his aunt(Tai) of surviving appellant; that the incident in question has not been committed in pre-planned manner; that in the First Information Report no specific role has been assigned to the appellant Jagdish, rather collective role of committing Marpeet with Lathi-Danda has been assigned to all the accused persons with general allegations and he may not be considered to be the author of fatal injuries of the deceased; that if, the Court comes to the conclusion that the impugned order of conviction does not require any interference, even then in view of the poor health and physical handicapness of the sole surviving appellant Jagdish, the sentence may be modified and reduced to the period of imprisonment already undergone with imposition of some fine; that taking into account that the appellant no.3 is an ordinary villager suffering from poor health and is undergoing treatment at Guru Teg Bahadur Hospital, Delhi, reasonable amount of fine on lower side may be imposed, so that he may be able to make payment.

8. Per contra learned A.G.A. supported the impugned judgement and order of conviction and sentence and contended that the First Informant had inherited considerable agricultural land from her husband Shivraj, the real brother of the accused appellant no.2 Kuria, father of accused appellant Jagdish and since she was living with deceased as husband and wife, the accused persons got an impression that they will be deprived of the land of Smt.Gokul which had to be otherwise inherited by them and as the incident in question was committed by the accused persons in pre-planned manner to eliminate her life partner Chhotey Lal and grab her land; that the incident in question is a broad day-light murder of which prompt First Information Report was been lodged wherein the accused appellants were named; that the appeal has been filed with wrong and baseless allegation and is liable to be dismissed.

9. Upon hearing parties counsel and perusal of record, paper book as well as original record of court below summoned in this appeal, I find that though PW-3 and PW-4 have not supported the prosecution case and turned hostile, but it does not adversely affect the prosecution case because the eyewitness of incident in question, PW-1 has narrated entire incident clearly and her testimony is duly corroborated by medical evidence on record. It is clear from the evidence on record that the First Informant Smt. Gokul and accused-appellant Bankey Lal were real brother and sister and Smt. Gokul was married to Shivraj, the real brother of accused appellant no.2 Kuria and Tau of accused appellant no.3. Undisputedly Shivraj died and his property was inherited by Smt. Gokul, the First Informant and it is also admitted fact that since after death of Shivraj she kept and accused Chhotey s/o Sukhan Singh as her new life partner and started living with him as husband and wife. The accused appellant no.2 Kuria and his son Jagdish did not feel good of it and an apprehension of being deprived of right of inheritance over the property of Smt.Gokul arose in their minds on account of which grudge they became inimical to Chhotey Lal, as the property of Smt. Gokul was being cultivated by Chhotey. The evidence on record shows that due to above reason and in view of her illicit unacceptable relationship with Chhotey Lal, they had sufficient motive and appears to have committed the incident in question in connivance with co-accused Bankey Lal who was also annoyed with above relationship of his sister with Chhotey Lal. PW-1 Smt.Gokul in her statement on oath has specifically stated that at the time of assault on Chhotey she caught hold of her brother Bankey Lal who gave several slaps to her but could not cause injuries to Chhotey Lal, while the accused appellants Jagdish and Kuria committed marpit with Chhotey with lathi-danda. It is noteworthy that the presence of the first informant at the time of occurrence has not been disputed. In view of active participation of all the three accused persons, the trial court has rightly held that Bankey Lal was also having common intention with the other accused persons and he not only joined them but also actively participated in the incident in question. It is fully proved from the evidence on record that the accused appellant Jagdish also actively participated in the incident in question alongwith his father and caused multiple injuries to the deceased after entering into his house. The learned trial court has not committed any error in passing the impugned judgement and order of conviction convicting him as well as other accused persons for the offences under section 452 and 304/34 I.P.C.

10. In view of the discussions made above I find that the appeal is devoid of merits and is liable to be dismissed.

11. However, considering the facts that(i) the sole surviving accused-appellant Jagdish is reported to be suffering from cerebral atrophy with gliosis in right external capsule' and is under treatment at Guru Teg Bahadur Hospital, Delhi (as per annexures filed with supplementary affidavit) which fact has also been reported by the Chief Judicial Magistrate, (ii) the incident in question did take place over the property in dispute as first informant after death of her husband, started living as wife with deceased, (iii) the incident in question did take place about 36 years ago, (iv) the appellants were released on bail in this appeal vide order dated 5.10.1982 passed in this appeal, and (v) no other criminal antecedent is reported to the credit of accused-appellant Jagdish prior or subsequent to the incident in question, I find that in these circumstances, upon affirming the conviction, it will be just and appropriate, if the sentence, is modified and reduced to the period of imprisonment already undergone with imposition of some fine, which will also meet the end of justice.

12. The appeal is partly dismissed. The impugned judgement and order of conviction convicting the appellants for the offences under sections 452 and 304 I.P.C. is affirmed. The appeal is partly allowed and the sentence is modified and reduced in the manner, that the sole surviving accused appellant is sentenced with R.I. for a period already undergone and fine of Rs.1000/- under section 452 I.P.C. and in case of default in payment of fine with a simple imprisonment for an additional period 6 months, and he is further sentenced with R.I. for a period already undergone and fine of Rs.10,000/- under section 304(1)34 I.P.C. and in case of default in payment of fine with simple imprisonment for an additional period of one year. Both the sentences will run concurrently. The amount of fine shall be deposited within a period of three months.

13. The appellant is on bail. He need not to surrender unless wanted in any other case or makes default in payment of fine.

14. Material exhibits, if any, will disposed of in accordance with rules.

15. Certified copy of this order be sent to the court below alongwith the lower court record forthwith, for necessary compliance.

Order Date :- 19.9.2018

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