Allahabad High Court
Mohd. Amin And Others vs State Of U.P. on 16 December, 2022
Bench: Ali Zamin
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- CRIMINAL APPEAL No. - 238 of 1997
Appellant :- Mohd. Amin And Others
Respondent :- State of U.P.
Counsel for Appellant :- K.K.Misra,Amit Kumar Asthana,Mahtab Alam
Counsel for Respondent :- Govt. Advocate
Hon'ble Ali Zamin,J.
Heard learned counsel for the parties.
As per office report and report of C.J.M. Azamgarh, appellant no.3 Abdul Salam also died, therefore, appeal against the appellant no.3 stands abated. Appeal against appellant nos.1 and 4 have already been abated vide order dated 28.09.2022. Now, this appeal is confined for appellant no.2 Shafiuzzama only.
This is the appeal challenging the order dated 15.2.1997, passed in S.T. No.96 of 1991, under Section 307/34 I.P.C. arising out of Case Crime No.141 of 1988, police station Mubarakpur District Azamgarh by which learned Additional Sessions Judge has convicted the appellant under Section 307 I.P.C. convicted for a period of 3 years R.I.
Learned counsel for the appellant submitted that incident had occurred in the year 1988 since then near about 34 years has passed. At present appellant is aged about 65 years old and also medically examined. He also served out custody period of 13 days, during conviction order and appeal and during trial also he remained in custody. He further submits that his past conduct is not bad and no any subsequent offence was committed by him. As per case law Ramdas Harijan and others vs State of U.P. 2020 1 Crimes (HC) 187, appellant convicted for offence under Sections 323, 325 I.P.C. instead of sending him to jail benefit of Section 4 Probation of Offenders Act was given and in Brijendra vs State of U.P. 2019 Supreme (All) 1805, the sentence u/s 324, 506, 504 IPC was converted into fine, therefore, in the light of the aforesaid judgments appellant should be given benefit under Section 4 of Probation of Offenders Act.
Learned A.G.A. has vehemently opposed by submitting that the appellant and 3 others who had died caused knife injury on the vital part and they have been rightly convicted and sentenced under Section 307 I.P.C. however he has not disputed the fact that 34 years from the incident has passed and there is no any other offence committed by the appellant.
As per prosecution version, informant-Mohiuddin gave Rs. 10/- to his grandson Sharif Ahmad for bringing spices from the market, while going to the market said money was dropped behind the mosque meanwhile Moinuzzama son of the accused Mohammad Amin came over and picked up the money, the grandson of the informant raised an alarm upon which Shakil Ahmad son of informant and Anwar Ahmad reached over there. Meanwhile, Abdul Kalam, Abdul Salam, Shafi Uzzama also arrived and exchange of hot talk took place between them. Accused Amin also reached the spot and joined the altercation, subsequently, upon exhortation of the accused Amin, Abdul Salam and appellant Shafi Uzzama took out knife and Abdul Kalam and Amin caught hold of Shakil Ahmad and Anwar Ahmad, thereafter appellant Shafi Uzzama and Abdul Salam caused injuries to Shakil Ahmad and Anwar Ahmad by their knives. Informant tried to save his sons upon which Shafi Uzzama assaulted to him by his knife due to which he received injuries. On the basis of written report (Ext-ka-1), FIR (Ext-ka-2) was registered injured Mohiuddin, Anwar Ahmad and Shakil Ahmad were medically examined and injury report (Ext-ka-3) to (Ext-ka-5) were prepared. Case was investigated charge-sheet (Ext-ka 8) under Section 324 I.P.C. was submitted by the investigating officer Sri S.B. Singh which was cancelled by the SSP concerned and matter was re-investigated and charge-sheet was submitted under Section 307 I.P.C. against the appellants before the court concerned, who took cognizance. Since, offence u/s 307 IPC is exclusively triable by Sessions Judge, therefore, case was committed to the court of Session, where S.T. No.96/91 was registered and transferred to the court of Additional Sessions Judge, who framed charged for the same offence. Accused denied the charge and claimed the trial.
To prove its case prosecution produced P.W.1 Mohiuddin and P.W.2 Shakil Ahmad. Again the case was transferred to the court of Additional Session Judge-II, who passed the impugned judgment and order. Defence admitted the genuineness of the documents produced by the prosecution, therefore, formal witnesses were not examined. Statement of accused persons u/s 313 Cr.P.C. were recorded in which they stated that they have been implicated due to enmity. Defence has produced D.W.1 Dr. O.P. Singh who stated that injury to the injured persons were not fatal.
Learned trial court by giving opportunity of hearing to the parties, passed the impugned judgment and order as disclosed in para 2 of the judgement.
Considering the submission, happening of the incident in the year 1988 since then 34 years and he has been convicted in the year 1997 since then 25 years have been passed. Appellant has also passed a custody period of 13 days and in view of the finding of referred cases and since 1997 no any criminal act was committed by the appellant, he should be given benefit of Section 4 of the Probation of Offenders Act. Consequently, the appellant shall file two sureties to the tune of Rs.25,000/- coupled with personal bonds to the effect that he shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, he will subject to undergo sentence before the court below. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the judgment as per law and rules.
Accordingly, appeal is allowed.
Let a copy of this order along with record be sent to the court concerned for compliance.
Order Date :- 16.12.2022 m.a.
