Fauzdar And Two Others vs State
2022 Latest Caselaw 10355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 2307 of 1986
 

 
Appellant :- Fauzdar and two others
 
Respondent :- State
 
Counsel for Appellant :- M.D. Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Nalin Kumar Srivastava,J.

1. Heard learned counsel for the appellants, learned AGA for the State and perused the record.

2. Present appeal has been filed on behalf of accused appellants- Fauzdar, Murat and Dharam Deo against the judgment and order dated 25.8.1986 passed by IIIrd Additional District and Session Judge, Ghazipur in Session Trial No.101 of 1984 arising out of Crime No.58 of 1983, P.S. Saidpur, District, Ghazipur, convicting the appellants under section 323 I.P.C. read with Section 34 I.P.C. and imposing sentence for one month rigorous imprisonment to each of the appellants.

3. As per report of the Chief Judicial Magistrate, Ghazipur dated 27.01.2022, the appellant no.1 Fauzdar has died.

4. In view of the report of Chief Judicial Magistrate, Ghazipur, the appeal is dismissed as abated so far as appellant no.1 Fauzdar is concerned.

5. The prosecution case as emerged out from the F.I.R. is that accused Fauzdar, Murat and Dharm Deo assaulted Smt. Lachi Devi on 10.3.1983 at about 5:30 p.m. with such intention and knowledge and under such circumstances that if she had succumbed to injuries they would have been guilty of murder. They also killed the hen of the injured and caused her a loss of Rs.50/-.

6. After lodging of the FIR investigation started and charge-sheet under Section 308, 352, 428, 504, 506 I.P.C. was submitted in the Court.

7. The accused persons were charged under Section 307/34 I.P.C. and Section 429/34 I.P.C. They denied the charges as has been alleged against them and submitted that they have been falsely implicated in this case on account of enmity.

8. On behalf of prosecution two witnesses of fact P.W.1, Sohan and P.W.2, Smt. Lachi Devi were examined. P.W.3 Mohd. Shamim, Investigating Officer, P.W.4, Dr. D.N. Singh and P.W.5, Dr. S.B. Singh were also examined as formal witnesses. Relevant documents/ exhibits were also filed by the prosecution.

9. In their statements under Section 313 Cr.P.C. the accused /appellants categorically denied the truthfulness of evidence produced against them, however no defence evidence was adduced by the accused persons.

10. The learned lower Court after analysing the oral and documentary evidence on record found that no offence under section 307/34 I.P.C. was proved against the accused persons. It was also concluded by the trial Court that charge under Section 429/34 I.P.C. was also not proved beyond reasonable doubt, however the accused persons were convicted under Section 323 I.P.C. and a sentence of one month rigorous imprisonment was imposed upon them.

11. P.W.1 Sohan is the husband of the injured Lachi Devi. He has deposed in his evidence that at the time of the occurrence he along with his mother, father and wife was sitting on cot at his house. Suddenly accused persons Dharam Deo, Murat and Fauzdar came over there with lathi in their hands. They assaulted him and his wife with lathis on account of which they got injured. Earlier to this occurrence accused Dharam Deo had killed his hen. He and his wife Lachi Devi were medically examined and FIR of the case was lodged on the basis of his report. P.W.2, Lachi Devi has also proved the prosecution case in her evidence. P.W.3 the scribe has proved Chik FIR, G.D., Map, fard soil and charge-sheet in his evidence. Injury report of Smt. Lachi Devi has been proved by P.W.5, Dr. S.B. Singh.

12. On the basis of oral and documentary evidence the trial Court concluded that the prosecution failed to prove its case under section 307/34 and 429/34 I.P.C. and convicted the accused persons under section 323 I.P.C. and sentenced to one month rigorous imprisonment.

13. From the perusal of the record, it is evident that the finding and conclusion given by the trial Court is on the basis of the evidence and facts on record which require no interference. On the basis of the facts and evidence on record, the conviction of the appellant has been correctly recorded by the trial Court.

14. During the course of argument, the learned counsel for the appellant submits that there is no error in the conviction recorded by the trial court but the imposition of sentence by the trial court is too harsh. It has been submitted that at present the appellants Murat and Dharam Deo both are aged about 62 years and the appeal was filed in the year 1986 and about 36 years have passed. It has been further submitted that the appellants have already suffered since long on account of the pendency of the present criminal proceedings going on against them for the last 39 years. It has also been submitted that the appellants in this case have been detained in jail since 15.3.1983 to 24.3.1983 and the trial Court has passed a sentence of rigorous imprisonment for one month. It has been submitted that the sentence as imposed by the trial court may be modified to the extent of the period already undergone.

15. The learned A.G.A. has made no objections to the submissions of the learned counsel for the appellant on the question of sentence and submitted that in view of the long pendency of the criminal proceedings against the appellant, the sentence imposed by the trial Court may be reduced.

16. The principle of law is well settled that the principle of proportionality between the punishment and crime cannot be brushed aside and the sentence must be just and proper. No doubt the concept of proportionality permits of discretion to the court but the same has to be guided by certain principles. Hon'ble Supreme Court in Raj Bala vs. State of Haryana & Ors (passed in Special Leave Petition (Crl.) Nos.4099-4100 of 2015) in this context has observed that neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. There can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. Similarly an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. A court while imposing sentence has to keep in view the various complex matters in mind. In respect of certain offences, sentence can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances.

17. In the instant case, criminal machinery came into motion about 39 years ago. There is nothing on record to show that the appellants are previous convicts or having any criminal antecedents. Also the accused-appellants alone cannot be held responsible for long delay in disposal of this appeal. They are old persons. It has been submitted and also find support from the record that the appellants remained in custody for some days during trial. Hence, considering all aspects of the matter, no useful purpose would be served by sending accused-appellants in judicial custody at this stage, rather in the aforesaid special circumstances, it appears that ends of justice would be served if sentence imposed upon the appellants by the trial court be modified to the extent that the sentence of the period already undergone is imposed and as such the appeal is liable to be partly allowed accordingly.

18. Therefore, the conviction of accused-appellants Murat and Dharam Deo is upheld, but sentence of one month imprisonment, awarded by the trial court, is modified to the period of sentence already undergone by them.

19. The instant appeal is party allowed in above terms.

20. A copy of this order be transmitted to the court concerned.

Order Date :- 17.8.2022

Shiv