Allahabad High Court

Chandra Pal Singh And Others vs State on 11 December, 2023





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:238566
 
In Chamber
 

 
Case :- CRIMINAL APPEAL No. 1192 of 1990
 

 
Appellant :- Chandra Pal Singh And Others
 

 
Respondent:- State
 

 
Counsel for Appellant :- Braham Singh, Narendra Kumar
 

 
Counsel for Respondent:- A.G.A.
 

 
Hon'ble Mohd. Azhar Husain Idrisi,J.

1- Present criminal appeal has been instituted by the appellants u/s 374(2) Cr.P.C., assailing the legality and validity of the judgment and order passed by Villth- Additional Sessions Judge, Moradabad on 28.05.1990, in Sessions Trial No. 253 of 1989, wherein the appellants were convicted under sections 147 and 323/149 I.P.C. and sentenced for six months imprisonment for the offence under each of these sections. Both of the sentences were ordered to run concurrently.

2- At the outset, it is pertinent to mention that initially there were ten appellants in toto in this appeal, namely 1- Chandra Pal Singh, 2- Awadhesh, 3- Ganga Singh, 4- Suresh, 5- Munish, 6- Hawaldar Singh, 7- Naubat, S- Nekpal, 9- Vimal, and 10-Atraj Singh. As per office report dated 28.03.2022 appellant nos. 1- Chandra Pal, 2- Awadhesh, 3-Ganga Singh, 6- Hawaldar Singh, 7- Naubat, 8- Nekpal and 10-Atraj Singh have died during the pendency of the appeal. The Learned CJM Moradabad has verified the factum of their death, on the basis of recorded statements of relevant witnesses. Therefore, Appeal against these dead appellants stand abated. Appellant Nos. 4 Suresh, 5 Munish and 9 Vimal are the surviving and contesting appellants.

3- Heard Sri. Narendra Kumar, learned counsel for the above stated surviving appellants and the learned A.G.A. for the State extenso. Perused the record.

4- In a nutshell, prosecution story is that on 10.08.1988 at about 2 pm, when complainant Banwari Lal was talking with Ganga Singh and Vimal near the school, situated in the village Behtari, accused Chandra Pal came besides them and started hurling, filthy abuses to the complainant on the pretext that he is a stumbling block in arriving at compromise in his disputes with people. The complainant protested and asked him not to abuse. At this Chandra Pal Singh stating that he will see him just now, went to the village. After a short while, he came back alongwith his brothers Rajveer, Udai Bhan, Avdhesh, Ganga Singh, Suresh, Munish, Hawaldar, Megh Singh, Naubat, Nek Pal, Vimal and Atraj Singh. Megh Singh possess a gun. Ramveer and Udai Bhan equipped with tamanchas and rest of the accused persons were having lathis in their hands, started beating the complainant. When Amar Singh, Kuddey, Dharam Pal, Javitri and Rama Devi etc came to rescue him, they beaten them too. At shrill and shriek many villagers assembled there. Udai Bhan fired from his tamancha and others used lathies and caused injuries to the complainant. Appreciating the pressure of the villagers gathered there, all the assailants fled away for the place of occurrence. The complainant Banwari Lal got written the tehrir from Horam, divulging the above stated incident and submitted it to the police station Baniyather, Moradabad on the same day, at about 3.35 P.M. On the basis of this tehrir, a criminal case was registered against 14 accused persons under Sections 147, 148, 323/149, 324/149, 307/149 IPC. S.I., Z.P. Ansari, was entrusted with the investigation of the case.

5- The prosecution set the investigation into motion. Letter for medical examination and treatment of the injured Amar Singh, Maharam, Kuddey, Mahendra Pal Singh, Smt Ram Devi and Smt Javitri Devi, was prepared and handed over to Constable Balraj singh, who brought the injured to the Civil Hospital Chandausi, where medico legal examination of the injured was conducted by Dr. M.P. Gupta. Thereafter I.O. reached on the spot, prepared the site plan and recorded the statements of the witnesses. After due Investigation, he submitted charge sheet against 13 accused persons only, in the court of Chief Judicial Magistrate, Moradabad, u/s 147, 148, 323/ 149, 324/149, 307/149, I.P.C. Accused Megh Singh was not charge sheeted by the I.O.

6- The Chief Judicial Magistrate, Moradabad took the cognizance of the case and committed the same to the court of Sessions for trial, where it was registered as Session Trial No. 253 of 1989.

7- Learned Sessions Judge framed charges against the accused under Sections 147, 148, 323/ 149, 324/149, 307/149, LPC. The accused abjured the changes, pleaded not guilty and claimed to be tried.

8- In order to establish the charges against the accused, prosecution has examined PW 1 Banwari Lal, PW2 Amar Singh, PW3 Ganga Singh, PW 4 De M. P Gupta and PW-5 I.O. Z.P. Ansari.

9- After recording of the prosecution evidence, accused were examined U/S 313 Cr.P.C. wherein they denied the veracity of the statements of the prosecution witnesses. They further stated that they are falsely implicated due to enmity in the village. They refused to adduce any defence evidence.

10- PW 1- Banwari Lal is the injured/complainant witness. He deposed that on protesting the accused Chandra Pal Singh from abusing him, he went to the village and after a short while came back along with all the accused, who were armed with gun, tamanchas and lathies. On reaching on the spot, they started beating him. He received injuries on the various parts of his person. When Amar Singh, Maharam, Mahendra Pal Singh, Rama Devi and smt. Javitri Devi came to rescue him, they also inflicted several injuries on their persons in the nature of lacerated wounds, contusions, incised wounds. PW 2 Amar Singh and PW 3 Ganga Singh, all are Injured witnesses. They also corroborated the statement of PW 1 Banwari Lal. In respect of injuries caused by the accused persons. PW 4 Dr. M.P. Gupta has corroborated the statements of witnesses in this behalf. Thus, Medical evidence support the factual evidence in the prosecution case, FIR in the matter is promptly lodged. Therefore there was no occasion to add any thing afterthought, in prosecution case. There is no material contradiction in the statements of prosecution witnesses, which could cast any iota of doubt on their credibility. There is no shadow of doubt on the veracity, credibility and truthfulness of prosecution witnesses. Their presence on scene of occurrence is natural. In fact they are reliable witnesses. Amidst such a unblemished evidence and circumstances, learned Sessions Judge very rightly convicted the accused and sentenced as under :-

"Accused persons Chandra Pal Singh, Awadhesh, Ganga Singh, Suresh, Munish, Vimal, Hawaldar Singh, Naubat, Nekpal and Atraj Singh are guilty of the offence under sections 147 and 323/149 of the IPC and they are sentenced to under go six months imprisonment under section 147 IPC and six months imprisonment u/s 323/149 IPC. Both the sentences will run concurrently. They are not guilty under section 324/149 IPC and 307/149 IPC.

Similarly accused persons Ramveer, Udai Bhan and Rajveer are not guilty under Sections 147/148, 323/149 and 307/149 IPC and They are acquitted of these charges levelled against them. They need not surrender, their bail bond are cancelled, and sureties are discharged."

11- During Argument, learned Counsel for appellant fairly conceded the correctness of the conviction part of the impugned judgment, and acknowledged that accused were rightly convicted guilty under Sections 147/148, 333/149 and 307/149 IPC by the learned Sessions Judge. However the learned counsel for appellants very soberly argued that in view of the above circumstances, he do not want to challenge legality and validity of the conviction part of the impugned judgment, but sentence part of the Impugned judgemnt deserves to be reconsidered. He argued that the punishment awarded to the appellants is too a little harsh, in view of the nature and Intensity of the offence committed by the appellants, their age group and the nature of the injuries received by the injured persons. It appears to be case of common marpeet. Therefore the convicted accused may be dealt with some humane element and magnanimity, in awarding punishment. They may be awarded some moderate sentence. He suggested that convicts may be punished for the period already served in incarceration, and it will be better to substitute their term of Imprisonment by fine, in the interest of justice.

12- Learned AGA disputed the submissions made by the learned counsel for appellant regarding sentence of the convicts and argued that in totality of entire circumstances they deserve some stringent.

13- The surviving convicts /appellants namely Suresh, Munish and Vimal are old aged persons. All of them are about sixty years of age. The incident in the matter occurred on 10.08.1988, since then more than three decades has been elapsed. During this period they roved for the quest of justice and would have been under great mental and must have been remained

psychological stress, which in itself tantamounts punishment. Thus, keeping in view the longevity of pendency of the matter/ appeal since the date of the incident 10.08.1988 and the time taken in the final decision of this case, tells its own story and plight of the surviving appellants. in view of the nature and intensity of the offence committed by the appellants, their age group and the nature of the injuries received by the injured persons, their case is common marpeet. Verily convicts have suffered a lot of, mental and psychological stress, due to this litigation. It will add to their agony, and will be unjust and unfair to lodge them in jail by confirming the period of imprisonment awarded by the learned Trial Court. As a matter of course, the ends of justice would be effectively served if convicts/appellants are sentenced to the period already served in incarceration, if any or they may be fined instead of further lodging them in incarceration.

14- Resultantly, in view of the above appeal is partly allowed with modification on the point of sentence only as under:-

(i)- The conviction of surviving appellants namely Suresh, Munish and Vimal u/s 147 and 323/149 IPC Is upheld and confirmed.

(ii)- The sentence of all the three appellants are modified to the effect that each one of them is sentenced to the period already undergone in incarceration, if any, and a fine of Rs.2,000/- for the offence under section 147 IPC and Rs.1000/- for the offence under section 323 read with 149 IPC.

(iii)- All the three surviving appellants are on bail. They need not surrender. Their bonds and sureties are cancelled and discharged.

(iv)- Appellants are directed to deposit the amount of fine within one month time from the date of the judgment, in the trial court, who in turn will inform this court about the deposition of the fine amount by the appellants. In case of default to deposit the fine in stipulated time, each of the appellants shall under go one months additional imprisonment for default under each section.