Ram Sajeevan And 3 Ors. vs The State Of U.P.
2023 Latest Caselaw 11164 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on  07.04.2023
 
Delivered on 17.04.2023
 
Court No. - 28
 
Case :- CRIMINAL APPEAL No. - 501 of 2003
 
Appellant :- Ram Sajeevan and 3 others
 
Respondent :- The State of U.P.
 
Counsel for Appellant :- Shishir Pradhan, Sheo Prakash Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Sheo Prakash Singh, learned counsel for the appellants, Sri Aniruddh Kumar Singh, learned A.G.A.-I for the State, and perused the material placed on record.

2. By means of instant criminal appeal, Judgement and order dated 27.3.2003 passed by the Additional Sessions Judge, Fast Track Court No.2, Raebareli in Sessions Trial No.208 of 1995, State of U.P. Vs. Ram Sajeevan and others, arising out of Case Crime No.59 of 1994 Police Station Mill Area, District Raebareli has been assailed whereby the appellants were convicted and sentenced under Section 147 of I.P.C. for six months each; under Section 323 read with Section 149 of I.P.C. for six months each; under Section 325 read with Section 149 of I.P. for three years rigorous imprisonment and fine of Rs.500 each and in case default of fine one month additional imprisonment each; under Section 304 read with 149 of I.P.C. for five years rigorous imprisonment each and fine for Rs.1,000/- each and in case of default of payment of fine, additional imprisonment for three months each. All the punishment were run concurrently. The period for which the appellants had already been in jail has to be adjusted in the sentence awarded.

3. As per the version of the F.I.R., on 1.6.1994, the cousin of informant, namely, Kamlesh Kumar was grazing his cattle in the meadow of Hari Shankar Singh located on the eastern side of village of one Awadhesh Kumar who showed knife with an intent to threat Kamlesh Kumar. When this came into knowledge of the informant, he along with his family members, namely, Samar Bahadur, Brij Mohan, Ram Harsh, Shivpal, Amar Bahadur went to the meadow at about 5.00 pm. At that very moment, accused-appellants Ram Sajeevan, Ram Kumar, Ram Sevak and Lavkesh Kumar along with their relatives, namely, Kallu, all armed with lathis, came and surrounded them and also beaten them. It was further alleged that Awadhesh Kumar, who was already present there, had also beaten them and as a result of injuries sustained, Brij Mohan and Ram Harsh were lying unconscious. This incident was witnessed by Lallan and Deen Dayal and others.

4. Injured Brij Mohan, Amar Bahadur, Ram Sumiran, Shiv Pal, Ram Harakh and Samar Bahadur were taken to the hospital on the same day and they were examined by the doctor.

5. Injuries sustained by the injured persons as per their medical reports are as under:-

(A) Injuries sustained by injured Brij Mohan:-

1. L.W. 2 cm x 0.5 cm x scalp deep (shaped) in left side of head, 7 cm above left ear. Tr. Swelling. 10 cm x 9 cm around the wound present.

2. Tr. Swelling 6 cm x 2 cm on the Rt. Side of head, 2 cm about Rt ear.

Opinion:-All injuries caused by blunt object. Kept U.O. Advised Xray

Skull AP/LAT view. Duration fresh.

Pt. is unconscious, Pulse 90/mt. Resp 10/Mt. Pupil semi dilated & reacting slowly. Pt. admitted in wd for further managment.

(B) Injuries sustained by injured Amar Bahadur

1. LW 2 cm x 0.3 cm x scalp deep in the head, 10 cm above the top of left ear fresh blood present.

2. Contused swelling 7 cm x 2 cm in the ant. Side of Rt. Forearm, 10 cm above the wrist. Color red. Tenderness present.

3. Contused swelling 5 cm x 3 cm on the inferior medial side of Rt. Knee.

Opinion:- All injuries caused by blunt object. Inuj No.2 kept U.O. Advised X ray. Rt. Forearm AP/Lat view. Other are simple. Duration fresh.

(C) Injuries sustained by injured Ram Sumiran

1. Tr. Swelling of 10 cm x 6 cm in the Rt side back, 9 cm below the inferior angle of Rt. Scapula. Tenderness present. Red in color.

2. C/o pass in Rt forearm.

Opinion:- Injury no. 1 cause by blunt object. Kept U.O. Adv. X ray. Rt. Side back of chest. Duration fresh.

(D) Injuries sustained by injured Shiv Pal

1. Tr. Swelling 3 cm x 1 cm on the head, 7 cm above the left eyebrow.

2. Abraded Tr. Swelling 4 cm x 2 cm on the middle of Rt. Clavicles. Tenderness and crepitus present.

3. Contusion 7 cm x 2 cm on the left side back at the inferior angle of left scapula colour red.

Opinion:- All injuries caused by blunt object. Inj. No.2 kept U.O. Adv. Xray. Rt Clavicle, others are simple. Duration fresh.

(E) Injuries sustained by injured Ram Harakh

1. L.W. 3.5 cm x 0.3 x scalp deep on the head placed vertically (middle of head)

Opinion:-Injury caused by blunt object. Simple in nature. Duration fresh.

(F) Injuries sustained by injured Samar Bahadur

1. L.W. 4 cm x 0.5 cm x scalp deep on the right side of head, 14 cm above the top of Rt ear fresh blood present.

2. Contused smelling 4 cm x 2 cm on the Rt. Side of back, 10 cm above the Lt. Iliac crest.

Opinion:- All injuries caused by blunt object. Simple in nature. Duration fresh.

6. After the aforesaid, the First Information Report was lodged on the very same day at about 6.50 pm, the matter was investigated and charge sheet was submitted by the Investigating Officer under Sections 147, 323, 325, 506, 308, 304 I.P.C.

7. Considering the aforesaid, the trial court framed charges against accused on 21.9.1996 under Sections 147, 323/34, 325/34, 308/34, 304/34 and 506 (2) I.P.C. All the accused persons denied the charges and claimed trial.

8. From the side of prosecution, the prosecution produced and get examined as many as nine witnesses, i.e., P.W. 1 Ram Sumiran, P.W.2 Ram Harakh, P.W.3 Amar Bahadur, P.W.4 Deen Dayal, P.W.5 Dr. D.K. Mishra, P.W. 6 Dr. B.D. Awasthi, P.W.7 Constable Surendra Prasad Jaiswal, P.W. 8 S.I. Kamruddin and P.W.9 S.I. Akhilesh Kumar Triapthi.

9. The statments of the accused persons were recorded under Section 313 Cr.P.C. and as per their statement, Ram Sajeevan and Ram Kesh had a land of grove, which was kept for grazing the cattles and, on the date of incident, Ram Kesh was grazing his animals at about 5 pm in the said grove and when the animals of Samar Bahadur started grazing the grass of his grove, he told Samar Bahadur to take his cattle away from the grove upon which Samar Bahadur called for his family members, who came there, armed with lathies and exhorted Samar Bahadur to beat Ram Kesh and then Samar Bahadur started beating Ram Kesh and when the accused went to intervene, they were also beaten Samar Bahadur and his family members, and then, in defence, the accused persons also assaulted the otherside with their lathies. Accused persons have also stated that a report in this regard was also submitted to the police station but that was not lodged and, thereafter, a complaint case was instituted by appellant no.1 Ram Sajeevan. In their statements under Section 313 Cr.P.C. all the appellants vehmently denied committal of offence and they stated that they are innocent and have been falsely implicated.

10. Learned counsel for the appellants submits that the case is of a sudden provocation as the prosecution has failed to substantiate that there was any motive or intention in committing the alleged offence by the appellants. There are cross-cases and during quarrel, the appellants have also received injuries and a complaint case was filed by the appellant no.1 Ram Sajeevan which was numbered as Sessions Trial No.321 of 1996 under Sections 147, 323, 325, 149 I.P.C. Police Station Mill Area, District Raebareli and the trial court convicted and sentenced Samar Bahadur, Ram Harsh, Shiv Pal, Ram Sumiran and Amar Bahadur for one day imprisonment with fine of Rs.500/-. He added that Kamlesh Kumar, who is said to be the initiator of the quarrel has not been examined. Further the deceased Brij Mohan died after four days of the incident but his statement was not recorded. He added that trial court has also failed to consider that injured persons have received simple injuries and no specific role has been assigned to any of the appellants. He next submits that the occurrence took place in the year 1994 and about 28 years have passed and now the appellant no.1 is aged about 53 years; appellant no. 2 is aged about 63 years and appellant nos. 3 and 4 are aged about 74 years and they are suffering from old age deseases.

11. He further argued that injuries on the non vital part of the body of the injured show that there was no intention of the appellants to kill or cause grievous hurt to the injured persons including the deceased who died after four days. There are certain discrepancies in the statements of the doctor who was examined as P.W. 5.

12. In support of his contention, he has placed reliance on a case reported in 1995 Supp (3) SCC 708, State of Punjab Versus Bira Singh and others and referred para 4 of that judgement, which is extracted as under:-

"4. So far as Bira Singh, Respondent 1 is concerned, as already noticed, he admitted in his statement under Section 313 CrPC to have caused the injury to the deceased. The manner in which the injury was caused has also not been denied by him. From the medical evidence on the record, we find that only one blow had been given by Bira Singh on the left flank of the deceased with the sella. The dimension of the injury, as noticed by Dr Jaspal Singh, PW 1 is "2 cm x 1/2 cm". Admittedly, Bira Singh did not repeat the injury after having caused the above-noted injury. No intention on the part of Bira Singh to cause the death of Amarjit Singh could be inferred in the peculiar facts and circumstances of the case. The trial court was, therefore, right in coming to the conclusion that the offence for which Bira Singh could be convicted could only be the one under Section 304 Part II IPC and not under Section 302 IPC. Good and sound reasons have been given by the trial court in support of its finding and nothing has been brought to our notice from which we may disagree with the findings recorded by the trial court. The finding of the trial court therefore convicting Respondent 1, Bira Singh for an offence under Section 304 Part II IPC does not call for any interference."

13. He has further placed reliance on judgment reported in 2016 (2) JIC page 715 (AII) Prem Singh & Ors. Versus State and referred paras 16 and 17 of the judgment are quoted herein:-

"16. Counsel for the appellant has lastly been submitted that the occurrence took place in the year 1979. More than 37 years have passed. At present the appellant Prem Singh is more than 56 years of age, hence, at this juncture of age, he should not be sent to jail but the sentence should be reduced. In support, he has placed reliance upon 2012 (77) ACC 483, (Kishori vs. State of U.P.) and 1995 Suppl. (3) SCC 708, (State of Punjab vs. Bira Singh and others), in which it has been laid down that since occurrence took place more than 10 years back, instead of sending the appellant to jail by imposing a sentence for imprisonment to appellant was let off by sentencing him to pay a fine of Rs. 5000/- and sentences was reduced to fine.

17. Imposition of adequate sentence is the cry of society, but keeping in view the fact that the occurrence took place 37 years before and at present, the appellant is above 57 years of age, I do not think it proper to send him to jail at this time."

14. While placing reliance on the aforesaid judgment, he submits that the adequacy of sentence is one of the important aspect which has to be looked into and balance in terms of the age of the accused as well as the time period of the incident.

15. Lastly, he has placed reliance on judgment in Criminal Appeal No. 2410 of 1981, Kishori Vs. State of U.P. decided on 18.1.2012 Relevant para of the said Judgment is quoted hereinunder:-

Coming to the sentence to be imposed on the appellant, since the inciden occured more than three decades ago and as now, appellant should be about 65 years of age, and during intervening period he had not indulged into any criminal activity nor he had any criminal back ground that his sentence deserves to be mollified. This opinion is further supplemented by the fact that the incident had occured in heat of temerity without any criminal proclivity and only a single blow was hurled on the deceased by club. Considering entire possible conspectus of circumstances, in my opinion, sending appellant back to penitentiary, to serve out remaining part of his sentence, after three decades, will not be in the interest of justice. Fear of being sending back to jail looming large for such long period must have tormented him enough for which he must have been penancing.

16. Concluding his arguments, he submits that the prosecution has also failed to prove its case beyond the reasonable doubts and thus, the appeal of the appellants may be allowed.

17. Learned A.G.A. appearing for the State contended that there are serious allegations against the appellants for beating the injured and one of the injured persons died after four days of the incident. After thorough investigation, it was found that the appellants were involved in committing the offence, and, therefore, the charge sheet was filed and charges were framed against them. The trial court, after considering the evidence thoroughly including the statements of the witnesses, has rightly passed the order. He next submits that the doctor, who was examined, has affirmed the injuries caused by the appellants and statements of the witnesses are intact and intention of the appellants were to cause grievous injuries and thus, one of the injured persons died, which is apparrent from the evidence adduced by the prosecution.

18. Having heard learned counsel for the parties and after perusal of the record, it transpires that the injuries are not grievous in nature. Further there is cross case as appellant no.1 has also instituted complaint wherein the other side were also convicted and, therefore, this seems to be a case of sudden provocation and motive or intention for committing the offence could not be substantiated. Further Kamlesh at the instance of whom initially dispute took place was neither produced nor examined before the trial court. The deceased after sustaining injuries died after four days of the incident but no statement of the deceased has been recorded. In this background, whether the act of the appellants whether falls within the ambit of Section 304 Part II of I.P.C., is doubtful.

19. When this Court examined the findings of the trial court, it is apparent that the appellants are stated to be armed with lathi and injured have received serious injuries over their bodies and there are four injured persons meaning thereby that it was not due to sudden provocation but with common intention and premeeting of minds, the offence was committed, which resulted into death of one of the injured persons, namely Brij Mohan, who died after four days of the incident. Further all the injured persons, namely Ram Sumiran, Ram Harsh, Amar Bahdur and Deen Dayal have been examined by the trial court and the defence has failed to show that why the injured would tell a lie. The doctors have also been examined, who have also supported the seriousness of the injuries caused by the appellants.

20. As per the submissions and discussions aforesaid, the trial court does not seem to have fallen into error while convicting and sentencing the appellants under Section 304 Part II I.P.C. and, consequently, the conviction of the appellants is hereby affirmed. Whereas coming to the sentence to be imposed on the appellants, the incident has taken place about 25 years ago and now the appellants are 50 to 78 years of age and, during this period, they were not found involved in any other criminal acitivity, further the weapon used in the offence is not a deadly weapon, and, therefore, the sentences awarded to them deserve to be modified.

21. Resultantly, the conviction of the appellants are upheld but their sentence is being reduced to the period of imprisonment already undergone by them with a fine of Rs.40,000/- out of which compensation of Rs.35,000/- will be given to the heirs of the deceased.

22. The appellants shall deposit fine within a period of two months from the date of this judgement failing which, appellants shall be taken into custody to serve out remaining sentence.

23. The appeal is allowed in the above said terms.

24. The appellants are said to be on bail so they need not surrender but their personal bonds are cancelled and the sureties are discharged subject to conditions that they deposit the fine.

25. Let a copy of this Judgment be communicated to the trial concerned for its compleance.

26. The office is directed to transmit the record to the trial court concerned.

Order Date :- 17.04.2023

Ram Murti