Fatah Chand And Another vs State
2022 Latest Caselaw 21341 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 50
 

 
Case :- CRIMINAL APPEAL No. - 721 of 1994
 

 
Appellant :- Fatah Chand And Another
 
Respondent :- State
 
Counsel for Appellant :- Sri Ram Babu Sharma
 
Counsel for Respondent :- AGA
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

Heard Sri Mukteshwar Singh, learned counsel for the appellants and Sri Ashish Mani Tripathi, learned A.G.A. for the State and perused the record.

The instant criminal appeal has been preferred by accused-appellants Tan Chand and Fateh Chand against judgment and order dated 28.4.1994 passed by IIIrd Addl. Session Judge, Bulandshahar in S.T. No. 179 of 1991 arising out of Case Crime No. 80 of 1990, under Sections 147, 148 and 324/149 IPC, P.S. Pahasu, District Bulandshahar, whereby appellants have been convicted under Section 147, 324/149 IPC for one year rigorous imprisonment and two years rigorous imprisonment each and accused-appellant Fatehchand was also convicted for charge under Section 148 IPC for one year rigorous imprisonment and all the sentences were directed to run concurrently.

According to prosecution version, informant lodged an F.I.R. with P.S. Pahasu, District Bulandshahar on 2.6.1990 at 00.55 hours stating that on 1.6.1990 wheat lanck of the informant was being transported by a tractor at 12:00 hours in the day. The accused who are residents of nearby village Fateehabad namely Fatehchand, Tan Chand along with three to four unknown persons emerged at 23:30 hours (11:30 pm). Accused Fatehchand shot a fire by his country-made pistol at Nepal with intention to kill him but Nepal rescued himself by avoiding the shot by his hand due to which he suffered fire arm injuries in his hand. The police investigated the case and filed charge sheet against both the accused appellants for charge under Section 307 IPC. Accused persons were arrested by police. Learned trial court took cognizance of the offence and committed the case to the court of session for trial as offence was exclusively triable by the court of session. Accused Tanchand was charged under Sections 147 and 324/149 IPC, whereas accused Fatehchand was charged in the case by the trial court for offence under Section 147, 148 and 324/149 IPC separately in S.T. No. 179 of 1991.

Prosecution has examined PW-1 Nepal (injured), PW-2 Charan (brother of the injured Nepal), PW-3 Dr. T.K. Jain, who is author of medico legal injury of injured Nepal, PW-4 Dr. A.K. Tubey, who prepared X-ray report of injury suffered by injured Nepal in his right wrist, PW-5 Ram Krishna (informant) and PW-6 S.I. Narootam Singh.

Statements of all accused persons were recorded under Section 313 Cr.P.C. after conclusion of prosecution evidence, in which accused stated that they have been falsely implicated in view of enmity with the informant side due to a case under Section 307 IPC in which father of the informant was an accused. No defense evidence was adduced by accused persons. The defense of the accused is of denial.

Learned trial court after hearing the statements of learned counsel for the accused and State counsel, has given finding that charge under Section 307 IPC is not proved against accused persons, keeping in view the injury report of injured Nepal, X-ray report seat of injury, which is on non-vital part of the body. Learned trial court has also found the involvement of five or more persons in the offence. Learned trial court has also observed that there was enmity between complainant and witnesses vis-a-vis accused-persons and for that reason it cannot be said that accused have falsely implicated in the case. Occurrence took place in the night of 1.6.1990, however, it was moon light night and identification of accused persons by witnesses cannot be doubted. The case of prosecution has been proved by evidence of injured and eye-witnesses. Injured has received pallet injuries from country-made pistol shot at him by accused Fatehchand which hit his hand. Keeping in view the injury and attending circumstances, learned trial court reached a finding that a case under Section 307 IPC is not proved against accused persons beyond reasonable doubt and consequently they were convicted and sentenced for charge under Section 147, 148 and 324/149 IPC as aforesaid.

I have gone through the statements of injured, statements of witnesses of fact, and formal witnesses as well as lower court record which is based on direct evidence in which injured has proved incident which is corroborated by evidence of PW-2 Charan Singh, who is claiming himself to be an eye-witness, and has stated that he was travelling along with injured at the time of incident and has given eye-witness account. PW-5 Ram Krishna is not an eye-witness but he has supported the F.I.R. version and proved written report on the basis of which chick F.I.R. has been lodged at the PS. concerned. PW-6 S.I. Narrotam Singh has proved chick F.I.R. in absence of Constable Krishna Pal Singh as Ext. Ka-4, G.D. entry of registration of case at P.S. concerned on 2.6.1990 by Rapat No. 2, Time 00:55 hours, as Ext. Ka-5, Site Plan as Ext. Ka-6, charge sheet as Ext. Ka-7. Dr. A.K. Jain has proved injury of injured Nepal, which is Ext. Ka-2. A number of lacerated wounds were found in right wrist of the injured as well as on left thumb. These injury were probable by use of some fire arm. Injuries were fresh and referred for X-ray. Dr. PW-5 Dr. A.K. Dubey proved X-ray report of injured Nepal as Ext. Ka-3 and Ext. Ka-1 was marked on X-ray plate dated 4.6.1990. He has stated that in X-ray of right wrist (A.P.) of Nepal, multiple small radio opaque shadows resembling led red pallet with fracture of lower part of the radius bone were found.

After arguing at some length, learned counsel for the appellants submits that appellant no. 2 Tan Chand has died during pendency of present appeal and present appeal is abated qua appellant no. 2 Tan Chand vide order dated 21.9.2022 passed in present appeal. Appellants' counsel is not inclined to assail the finding of conviction of the appellant for charge under Sections 148, 324/149 IPC for which he has been convicted by learned trial court, however, it is prayed that if this Court is not inclined to disturb finding of convict. Appellant may be released on probation of good conduct keeping in view the circumstances as the occurrence pertains to year June, 1990 and the maximum sentence awarded to him is two years rigorous imprisonment and all the sentences for charge under Section 147, 148, 324/149 IPC were directed to run concurrently.

Learned counsel for the appellants further submits that he has filed an affidavit of appellant Fatehchand with supplementary affidavit on 12.12.2022 wherein he has categorically stated that he is not having any criminal history. He is not a previous convict and in case he is released on probation of good conduct, he will not misuse the condition of probation.

No objection has been raised by learned A.G.A. on above prayer of learned counsel for the appellants as well as the prayer made in supplementary affidavit by the appellant.

Considering submissions of learned counsel for the parties, material on record, this Court is of considered opinion that there is no factual or legal infirmity in finding of guilt of the appellant recorded by learned trial court for charge under Section 147, 148, 324/149 IPC, however, the fact that incident had taken place on 1.6.1990 and period of more than 32 years elapsed since the incident, appellant was enlarged on bail during trial and after conviction, there is no allegation against him regarding misuse of liberty of bail on any stage and appellant has even filed supplementary affidavit to the effect that he is not having any criminal history and is not a previous convict, I am of the considered opinion that no useful purpose of law would be served if the appellant Fatehchand is sent to Jail again for serving the sentence of two years rigorous imprisonment awarded by learned trial court, hence he deserves to be released on probation of good conduct by giving benefit of Section 4 of Probation of Offenders Act.

Finding of conviction recorded by learned trial court against appellants for charge under Sections 147, 148, 324/149 IPC is affirmed and appeal regarding conviction is dismissed. However, substantive sentence awarded to appellant is quashed and accused-appellant Fatehchand is enlarged on probation of good conduct by giving benefit of provisions of Probation of Offenders Act, 1958.

The accused-appellant Fatehchand is directed to appear before the District Probation Officer and file a personal bond of Rs. 20,000/- with two sureties each in the like amount for a period of two years to maintain good behaviour. During period of probation, appellant will remain in supervision of District Probation Officer, Bulandshahar under monitoring of court concerned. Appellant is further directed to give undertaking before court concerned that during period of probation of two years, he will not indulged in any criminal activity and maintain peace and good behaviour and in fact, any adverse fact came to the knowledge of the District Probation officer, he will inform the court concerned and court concerned will be at liberty pass the appropriate sentence in case of misuse of conditions of probation. Personal and surety bonds will be filed before District Probation Officer within a week of communication and filing of certified copy of this order with the court concerned.

Let a copy of this order be communicated to court concerned for compliance.

Accordingly, appeal is partly allowed.

Order Date :- 16.12.2022

A.P. Pandey