Jugunoo Singh And Ors.2 vs State Of U.P.
2023 Latest Caselaw 9087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 298 of 2002
 

 
Appellant :- Jugunoo Singh And Ors.2
 
Respondent :- State of U.P.
 
Counsel for Appellant :- K.K.Tewari
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Mr. Amit Kumar Awasthi, Advocate has filed Vakalatnama on behalf of the appellant today in Court is taken on record.

2. Heard Mr. Amit Kumar Awasthi, learned counsel for appellant, learned A.G.A. for the State and perused the material available on record.

3. This Criminal appeal has been preferred by the appellants against the judgment and order dated 26.2.2002 passed by learned Additional Sessions Judge, (Fast Track Court No. 3), Lakhimpur Kheri in Sessions Trial No. 208 of 1997 arising out of Case Crime No. 26 of 1988,whereby the accused appellants were convicted and sentenced under section 147 IPC for a period of six months rigorous imprisonment. The appellants were convicted and sentenced under Section 323 IPC for six months rigorous imprisonment and further under Section 308 IPC they were convicted and sentenced for four years rigorous imprisonment. All the sentences were directed to run concurrently.

4. In short the prosecution story is that FIR of this case was lodged by complainant Chhotkan with the allegation that on 11.4.1988 at about 7:00 p.m. he (complainant) and Liyakat Khan, Village Pradhan Majgai and Mangu Lal was going from his village Chhabba Purwa towards Nighasan Palia Road. When they reached near the house of Sunder Lal Gupta then Jugnu Singh, Amrik Singh, Rampal Singh, Kallu alias Sarvjeet Singh and Mahesh armed with lathi and danda came near the complainant side and on the exhortation of Jugnu Singh with the intention to kill Liyakat assault lathi and danda upon him. When the complainant tried to save Liyakat intervened, he was also beaten. Consequently, Liyakat Khan received injuries on his head and blood was oozing out. On the noise of complainant, Liyakat Khan and Mangu Lal, immediately Abdul Rahman, Kallu and other persons came then the accused persons ran away towards north side. On receiving this information, younger brother of Liyakat Khan, namely, Riyasat Khan reached the spot and rushed towards Majhgai Hospital. After giving first aid at Majhgai Hospital, he was referred to District Hospital. Injured Liyakat Khan was admitted in the hospital and application was moved by the complainant before S.S.P. Lakhimpur Kheri. On the order of S.S.P. Lakhimpur Kheri the FIR of this case was lodged on 12.4.1988 against the accused persons, namely, Jugnu Singh, Kallu alias Sarvjeet Singh, Mahesh, Rampal Singh and Amrik Singh as Case Crime No. 26 of 1988 under Sections 147, 323 & 308 IPC and Section 10 of the Goonda Act at Police Station Palia, District Kheri.

5. Investigation of this case was entrusted to Investigating Officer. During course of investigation, Investigating Officer recorded the statement of complainant, injured Liyakat Khan and other persons. After investigation charge sheet was filed on 31.12.1988 against accused Ram Pal Singh, and Mahesh and other accused persons namely Jugnu Singh, Amrik Singh and Kallu on 20.7.1988 under Sections 147, 308 & 323 IPC and Section 10 of the Goonda Act. Thereafter learned Magistrate took cognizance. During pendency of trial accused Ram Pal Singh and Amrik Singh died and the cas was committed only against accused Mahesh, Kallu and Jugnu Singh and charges were framed against them under Sections 147, 307/149, 323/149 on 25.8.1988. The charges were read-over to them in hindi. They denied all the charges and claimed to be tried.

6. In order to prove its case the prosecution has examined PW-1 Chhotkan, who was complainant of the case, has proved written report as Ex. Ka-1. In his testimony, he has fully supported the case of the prosecution.

7. PW-2 Liyakat Khan, injured witness, has also fully supported the entire version of prosecution case.

8. PW-3 Dr. R.C. Singh, who medically examined injured Liyakat Khan and has proved injury report and deposed before the trial court that on 12.4.1988 he was the Senior Surgeon in District Hospital Lucknow, who medically examined Liyakat Khan and following injuries were found on his body:-

(i) Lacerated wound 3 cm x 0.5 c.m. x 0.5 c.m. on the top of head over the right parietal region, 12 cm from ear, injury was fresh and kept under observation, which was caused by hard and blunt object with irregular margin.

(ii) Abraided contusion 12 c.m. x 1.5 c.m. on back of right shoulder.

(iii) Red contusion 2 c.m. x 4 c.m. on the back of shoulder.

(iv) Contusion 3.5 c.m. x 2.5 c.m. on the outer aspect of right arm, 16 c.m. from elbow joint.

(v) Abraided contusion 6 c.m .x 4 c.m. present on forearm 9 c.m. above elbow joint. X-ray advised.

Clotting was fresh in duration. Injury no. (i) and (v) was kept under observation and x-ray was advised.

All the injuries were caused by hard and blunt object. The injury report was proved by doctor as Ex. Ka-4

9. PW-4 S.I. K.P. Gautam, is the Investigating Officer of this case and proved all the relevant papers.

10. Apart from these witnesses, no other witness was examined.

11. The prosecution relied upon on the oral statements of PW-1 to PW-4 convicted the appellants as above.

12. During pendency of this appeal, appellant no. 1 Juganoo Singh and Kalloo alias Sarvejeet Singh died and appeal on their behalf already been abated vide order dated 17.1.2023.

13. Being aggrieved with judgment and order dated 26.2.2002 passed by learned Additional Sessions Judge, (Fast Track Court No. 3), Lakhimpur Kheri in Sessions Trial No. 208 of 1997, the appellants preferred the instant criminal appeal.

14. Learned counsel for appellant has submitted that in this appeal main accused, who had been assigned the role of causing injuries, died either during trial or during pendency of this appeal. It is further submitted that though the injuries, which were kept under observation were found on vital part but no supplementary report was obtained by the Investigation Officer. Further submission is that no fracture was found on the body of injured Liyakat Khan or Chhotkan. All the injuries, which were caused to the injured persons were caused by hard and blunt object. It is further submitted that if the case of prosecution is admitted in toto, then the offence does not travel beyond Section 323/34 IPC. It is further submitted that perusal of statement of DW-1 shows that injury was caused due to sudden provocation on the spur of moment by pelting bricks. The appellants have wrongly been convicted and sentenced under Section 308 IPC.

15. Lastly it is submitted that during investigation appellant no. 3 Mahesh was in jail about 15 days. After conviction he was sent to jail on 26.2.2002 and bail was granted to him on 6.3.2002. The appellant was in jail about ten days after conviction. Now in pursuance of non-bailable warrants the appellant was arrested and was sent to jail on 22.03.2023. Presently the appellant Mahesh is in jail since 22.3.2023.It is further submitted that the incident took place in the year 1988 about 35 years ago. All the accused persons except appellant no. 3 Mahesh have died and he is in jail.

16. Learned A.G.A. for the State has opposed this appeal and has submitted that the judgment of the trial court is well reasoned and accused appellants have rightly been convicted and sentenced by the trial court.

17. This Court also agree with the argument of learned counsel for appellant that this case does not travel beyond the purview of Section 323/34 IPC. Therefore, the conviction of appellant under Section 308 IPC is converted into Section 323/34 IPC. Thus the conviction of the appellant is hereby affirmed under Section 323/34 IPC.

18. Further keeping in view the nature of offence and the fact that the occurrence of this case has taken place on 11.4.1988 and no previous conviction has been proved against the appellant Mahesh and that the appellant has a fixed place of abode this Court is of the considered view that the appellant no. 3 Mahesh is entitled to the benefit of Section 4 of the Probation of Offenders Act, 1958.

19. Hence this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant Mahesh under Section 147, 323/34 IPC is hereby confirmed but instead of maintaining the sentence awarded by the trial keeping in view the fact that the appellant in jail to serve out the sentence it is hereby directed the authority concerned to release the appellant no. 3 Mahesh from jail immediately. The appellant no. 3 Mahesh is hereby directed to file personal bond with two sureties each in the like amount to the effect that for a period of six months, he shall maintain peace and good behaviour. These bonds have to be filed within a period of one month from the date when copy of this order is certified to the court concerned or the appellant file the same, whichever is earlier. During this period, the appellant shall remain under the supervision of the concerned District Probation Officer. In case, the bonds are not filed within the stipulated period or after filing the bonds its conditions are violated then the appellant Mahesh shall be called upon by the court concerned and appropriate sentence shall be passed by the trial court against him. During the period granted by this Court for filing the bail bonds, the appellant Mahesh shall remain on the same bail.

20. Office is directed to communicate this order forthwith to the court concerned as well as Jail Superintendent, District Jail Lakhimpur Kheri, for necessary compliance.

21. The trial court record be sent back.

Order Date :- 28.3.2023

Virendra