Ibeney Abbas And Others vs State
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Allahabad High Court

Ibeney Abbas And Others vs State on 7 August, 2025

Author: Subhash Chandra Sharma

Bench: Subhash Chandra Sharma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:133937
 
Court No. - 84
 

 
Case :- CRIMINAL APPEAL No. - 40 of 1983
 

 
Appellant :- Ibeney Abbas And Others
 
Respondent :- State
 
Counsel for Appellant :- Jayant Prakash Singh,Laloo Yadav,Manoj Kumar,Manoj Yadav,Pankaj Sharma,Prashant Sharma
 
Counsel for Respondent :- A.G.A.,S.A.Ali
 

 
Hon'ble Subhash Chandra Sharma,J.
 

(Order on Recall Application)

1. Heard learned counsel for the appellants/applicants as well as learned A.G.A on the recall application.

2. Appellant no.2 Nazar Abbas and appellant no.3 Nisar Haider are present in person.

3. The recall application is allowed and N.B.W issued by this Court on 7.7.2025 is, hereby, recalled.

4. Appellant no.1 Ibeney Abbas has already died and the appeal has already been abated against him.

(Order on Appeal)

1. Heard learned counsel for the appellants as well as learned A.G.A. for the State and perused the material on record.

2. This criminal appeal has been filed against the judgment and order dated 16.12.1982 passed by learned IVth Additional Sessions Judge, Moradabad in Session Trial No. 443 of 1981 (State Vs. Ibeney Abbas and others) arising out of Crime No. 16 of 1981 under Sections 323, 325 read with Section 34 IPC, Police Station Naugaon Sadat, District Moradabad.

3. Prosecution case in brief is that on 4.3.1981 the complainant Gohar Abbas was coming from his field by Bullock Cart. In the way the appellants made assault on him with lathi. He sustained 22 injuries on his person.

4. The complainant lodged an FIR under Section 307 IPC on the same day at police station as Crime No.16 of 1981. The injured was medically examined on the same day by Dr. A.K. Agarwal.

5. After investigation charge-sheet was submitted by the Investigating Officer.

6. The learned court of Magistrate after compliance of Section 207 Cr.P.C. committed the case for trial.

7. The learned trial court framed charges under Section 307/34 IPC against the appellants, who pleaded not guilty and claimed for trial.

8. The prosecution examined PW-1 Gohar Abbas, PW-2 Nasir Husain, PW-3 Murli Manohar (Head Constable), PW-4 Dr. A.K. Agarwal, PW-5 Babu Lal (X-ray Technician), PW-6 Head Constable Om Prakash, PW-7 Head Constable Ved Prakash and PW-8 SI Chain Singh.

9. After conclusion of prosecution evidence, the statement of accused appellants under Section 313 Cr.P.C. were recorded in which they said the incident to be false and implicated falsely by the complainant. The appellants did not adduce any evidence in defence.

10. After hearing the prosecution as well as the defence, learned trial court passed the judgment and order dated 16.12.1982 convicting the appellants under Section 323 and 325 readwith Section 34 IPC and sentenced them for one year rigorous imprisonment under Section 323 IPC and two years rigorous imprisonment under Section 325 read with Section 34 IPC, against which this appeal has been preferred.

11. Learned counsel for the appellant argued that appellants did not make assault with lathi to the complainant but the Bullock Cart turned over, as a result he sustained injuries but on account of enmity he lodged the present FIR against the appellants. It is submitted that during the course of examination Dr. A.K. Agarwal (PW-4) has opined that such type of injuries were possible by turning over of Bullock Cart. In this way, the whole prosecution story is false, even though the learned trial court has convicted and sentenced the appellants illegally. He also submits that the incident is said to have taken place on 4.3.1981 till then 44 years have elapsed and the appellant no.2 Nazar Abbas has become 74 years of age and appellant no.3 Nisar Haider has also become 72 years of age. Both of them are suffering from old age infirmities and it will be of no use to send them to jail. They have remained in jail for a period of two and a half month during trial and now reasonable compensation may be imposed on them.

12. Learned A.G.A. opposed the prayer as aforesaid and contended that complainant himself is injured person, who clearly stated about the involvement of the appellants for having assaulted with lathi. Injuries sustained by him were also opined by PW-4 Dr. A.K. Agarwal to have been caused on the same day with lathi. PW-2 has also supported the prosecution version. In this way, the witness of fact has supported the statement of complainant. Dr. A.K. Agarwal has also proved the injuries on the person of complainant and also the injury report. X-ray Technician, PW-5 Babu Lal has also proved the X-ray report and X-ray Plates, likewise other prosecution witnesses have proved the chik FIR, GD and investigation of the case. In this way, the prosecution has proved its case beyond reasonable doubt and learned trial court has convicted and sentenced the appellants on the basis of material on record. There is no any illegality or error of fact or law. Though he could not dispute the fact that appellant no.2 has become 74 years of age and appellant no.3 Nisar Haider has also become 72 years of age and they have served in jail for a period of two and a half months during trial.

13. On considering the facts and circumstances of the case, submissions made by learned counsel for the appellants as well as learned A.G.A., perusal of record and the judgment and order passed by the learned trial court, it appears that the incident took place on 4.3.1981 in which the complainant Gohar Abbas sustained injuries in assault with lathi made by the appellants. He lodged the FIR on the same day, which was proved as Exhibit Ka-1 and the complainant was medically examined on the same day by Dr. A.K. Agarwal, who also stated about the injuries to have been caused on the same day with lathi. In X-ray, injuries, in the nature of fracture, were also found which were proved by the X-ray Technician PW-5 Babu Lal. The complainant has categorically stated during his examination before the learned trial court that appellants made assault with lathi and caused injuries to him. PW-2 Nasir Husain has also supported the prosecution version and the statement of complainant. There is no any enmity between the appellants and the PW-2, therefore, this witness cannot be said to be inimical to the appellants or interested witness. In the cross-examination, no any material contradiction was found to make his testimony unreliable. PW-3 Murli Manohar, Head Constable, has proved the chik FIR and and GD, likewise PW-8 SI Chain Singh has proved the investigation and the site plan as prepared by him as Exhibit Ka-10 and charge-sheet as Exhibit Ka-12. In this way, the investigation of the case is also proved. The testimony of PW-1 Gohar Abbas, the injured witness, and PW-2 Nasir Husain also gets corroborated with the testimony of PW-4 Dr. A.K. Agarwal, who conducted medical examination. In this way, the case against the appellants stands proved beyond reasonable doubt under Sections 323, 325 read with Section 34 IPC. The finding recorded by learned trial court in this regard is sound and there is no any error of fact or law, therefore, it does not require any interference.

14. So far as the quantum of sentence is concerned, it is notable that the appellant no.2 Nazar Abbas and appellant no.3 Nisar Haider are aged about 74 years and 72 years respectively and are suffering from old age infirmities. They have served two and a half month in jail during the trial as per record and now 44 years have elapsed from the date of incident till now. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s 307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and circumstances of the case, Hon'ble the Apex Court reduced the sentence to the period undergone by him. Likewise, in the case of Hussainbhai Asgarali Lokhandwala v. State of Gujarat dated 14 August 2024 in Criminal Appeal No. 1691 of 2023 Hon'ble Apex Court modified to the period of incarceration already undergone by him while maintaining the conviction where the entire incident had occurred in the heat of moment on 07.11.2000.

15. In considered opinion of this Court, it will serve no purpose to send them to jail for serving out the remaining period of sentence, but it will be just and proper and serve the purpose of justice to impose fine to be paid as compensation to the complainant/injured or his survivors.

16. Consequently, the appellant no.2 Nazar Abbas and appellant no.3 Nisar Haider are directed to make payment of Rs.24,000/- by each as fine within a period of 60 days from today, that will be paid to the complainant/injured or his survivors as compensation. In case of default, the appellant no.2 Nazar Abbas and appellant no.3 Nisar Haider will serve the sentence as awarded by the learned trial court.

17. Accordingly, this criminal appeal is partly allowed.

18. Copy of this judgment along-with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within two months. Office is directed to keep the compliance report on record.

Order Date :- 7.8.2025

Anil