Raja Ram And 3 Ors. vs State Of U.P.
2023 Latest Caselaw 7449 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Court No. - 16
 

 
Case :- CRIMINAL APPEAL No. - 1519 of 2003
 

 
Appellant :- Raja Ram And 3 Ors.
 
Respondent :- State of U.P.

Counsel for Appellant :- Anil Srivastava,Vijayendra Prakash Tripathi

Counsel for Respondent :- Govt.Advocate

Hon'ble Subhash Vidyarthi J.

1. The instant appeal has been filed against the judgment and order dated 22.09.2003 passed by the Additional Sessions Judge, Court No. 5, Barabanki whereby four accused persons, namely (1) Raja Ram, (2) Heera Lal, (3) Piyarey Lal and (4) Devari, were convicted and sentenced. The instant appeal was filed by all the aforesaid four convicted persons but during pendency of the appeal, the appellant nos. 2, 3 & 3, namely, Heera Lal, Piyarey Lal and Devari have died and the appeal stands abated in so far as the aforesaid three appellants are concerned.

2. The appellant no. 1 had been convicted for committing an offence under Section 307 IPC and sentenced to undergo rigorous imprisonment for a period of four years and payment of fine amounting to Rs. 1000/- and in case of failure to pay the fine, he would undergo imprisonment for an additional period of one month. He has been convicted for an offence under Section 323 IPC read with Section 34 of the IPC and has been sentenced to undergo four months' imprisonment for the aforesaid offence.

3. Briefly stated, facts of the case are that on 02.05.1992, one Wali Mohammad had lodged a First Information Report stating that at about 07.00 a.m. on the aforesaid date, the informant's goat had wandered towards the house of the appellant; that his son Nisar Mohammad went to catch hold of the goat near the house of the Appellant no. 1 Raja Ram and upon seeing him, Raja Ram started abusing him; that when the informant's son asked Raja Ram not to abuse him, all the accused persons had beaten him up and Raja Ram assaulted the informant's son on his head with a Banka. The appellant no. 1 was charged for committing an offence under Section 307 I.P.C. and also for committing an offence under Section 323 IPC read with Section 34 IPC and the remaining accused persons were charged for committing offence under Section 307 IPC read with Section 34 IPC.

4. PW-1 examined before the trial court was the informant Wali Mohammad, who reiterated the F.I.R. version and he stated that he had seen the appellant no. 1 Raja Ram assaulting the informant's son. However, at a subsequent place in his statement, he stated that when he reached the spot of the incident, his son Nisar was laying in an injured condition. From the aforesaid statement, the trial court concluded that PW-1 did not see the appellant no. 1 assaulting the victim. The injured Nisar Ahmad also stated that on the date of the incident, his father had gone to the fields to reap the crop at about 06.00 a.m. and he came back upon hearing the hue and cry. He regained consciousness in Ram Nagar Hospital and for the first time he saw his father in the hospital. Thus PW-1 was not an eye witness of the incident.

5. PW-2, the injured Nisar Ahmad, who is son of the informant, had stated that all the accused persons had beaten him up and the appellant no. 1 had assaulted him with a Banka; that when he raised hue and cry, Kayum, Asraf Ali and his father Wali Mohammad came to the spot and saw the incident. He further stated that Raja Ram had hit with a Banka on his head, he did not fall down in front of the house of Raja Ram but he fell down in front of the house of Jaan Mohammad. The trial court found that there was no discrepancy in the statement of the injured witness which could make his statement doubtful.

6. PW-3 examined by the trial court was Dr. Madan Lal who had conducted medico legal examination of the injured person. PW-3 had stated that he had examined the injured Nisar Ahmad and had found six injuries on his person, all of which were simple in nature. The injuries no. 1, 2 & 3 could have been caused by a sharp edged weapon like Banka. The injury no. 3 could or could not have been grievous. He had advised x-ray of the injury and without examining the x-ray plate, he could not give an opinion regarding nature of the injury.

7. PW-4 Asraf Ali, who was named by the injured Nisar Ahmad as one of the persons who had reached on the spot of the incident after hearing hue and cry raised by him, was declared to be hostile. This witness also stated that he reached on the spot on hearing hue and cry and, therefore, there was no occasion to him to have seen the incident taking place. Thus except for the injured person himself, there was no other eye witness of the incident. The other person named by the injured Nisar Ahmad as having reached on the spot upon hearing his hue and cry, namely, Kayum, had died during the trial, before his evidence could be recorded.

8. The trial court had noted that x-ray plate or x-ray report had not been filed.

9. In his statement recorded under Section 313 Cr.P.C. the appellant no. 1 had denied the allegations and so was done by all the other accused persons.

10. The trial court found that the accused persons were guilty and the appellant no. 1 was found guilty of committing offences under Section 307 and 323 read with 34 I.P.C. and he was sentenced to undergo rigorous imprisonment for a period of four years for the offence under Section 307 IPC and imprisonment for four months for the offence under Section 323/34 I.P.C. He was granted bail by this Court by means of an order dated 20.10.2003 whereby it was provided that sentence of imprisonment awarded to the appellant shall remain suspended during the pendency of the appeal and he will deposit the fine within two months, failing which the trial court shall proceed to realize the same.

11. The learned counsel for the appellant no. 1 has submitted that even as per the prosecution case, it was a case of a sudden quarrel and the offence has not been committed with a pre-determined mind and in a planned manner. As per the statement of PW-3 Dr. Madan Lal, all the injuries were simple in nature. The appellant no. 1 has no previous criminal history and the learned counsel for the appellant has submitted that after the incident giving rise to the instant appeal, the appellant has not been involved in any other criminal incident. The learned Counsel for the Appellant No. 1 has submitted that keeping in view the aforesaid facts, coupled with the fact that three out of four appellants have already died during pendency of the appeal and the appellant is the sole surviving convicted person and presently he has attained the aged about 55 years whereas at the time of the incident, he was aged about 24 years only, the sentence awarded to the appellant no. 1 be reduced to the period of imprisonment already undergone by him.

12. In the case of V.K. Verma v. C.B.I., reported in (2014) 3 SCC 485, the Hon'ble Supreme Court was dealing with a criminal appeal filed in the year 2014, arising out of an incident alleged to have taken place on 21.12.1984. The Hon'ble Supreme Court held that the long delay before the courts in taking a final decision with regard to the guilt or otherwise of the accused is one of the mitigating factors for the superior courts to take into consideration while taking a decision on the quantum of sentence. The Hon'ble Supreme Court concluded that "Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence, but enhancing the fine, while maintaining the conviction."

13. In Diwakar Pandey v. State of U.P., Criminal Appeal No. 1370 of 2016, decided on 15.12.2022, relying upon the aforesaid decision of Hon'ble the Supreme Court in the case of V.K. Verma (supra), this court reduced the sentence to the period of sentence already undergone by the appellant and the fine imposed by the trial court was increased to Rs. 50,000.00.

14. Having considered the facts and circumstances of the case in the light of the law laid down by Hon'ble the Supreme Court in the case of V.K. Verma (supra), I am of the view that making the appellant no. 1 undergo the remaining period of incarceration, for the offence committed by him in the year 1992 while he was about 24 years of age, after expiry of more than three decades and after his appeal is pending in this Court for more than two decades and after the appellant no. 1 has attained the age of 55 years, will not serve any purpose, either of reforming the appellant or for deterring him from committing any other offence.

15. In view of the aforesaid discussion the instant appeal is allowed only so far as the quantum of punishment is concerned, while maintaining the conviction of the appellant no. 1 and the quantum of punishment is modified so as to make it imprisonment for the period already undergone by the appellant, and the fine of Rs. 1000.00 is enhanced by a further sum of Rs. 20,000.00 (Twenty thousand only), which will be deposited by the appellant within a period of four weeks in the Court.

16. In case, the appellant fails to make the requisite deposit, the prosecution shall be at liberty to move an appropriate application before this court.

Order Date :- 15.03.2023

Pradeep/-