Court No. - 50
Case :- CRIMINAL APPEAL No. - 364 of 1983 Appellant :- Bhika & Others Respondent :- State Of U.P.
Counsel for Appellant :- Tej Pal,V K Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Harsh Kumar,J.
1. The present criminal appeal has been filed against the impugned judgment and order dated 31.1.1983 passed by IVth Additional Sessions Judge, Agra in S.T. No.458 of 1978, convicting the accused appellants under Section 147 and 323/149 I.P.C. and sentencing them with maximum imprisonment for a period of 3 months under Section 147 I.P.C.
2. Heard learned counsel for appellants, learned A.G.A. for the State and perused the record as well as the lower court record summoned in appeal.
3. Learned counsel for the appellants contended that the appellants have been falsely implicated and wrongly convicted; that the appellants belonged to the same family that of injured Raj Hans, Amar Singh as well as first informant Rameshwar; that entire prosecution story is false and incorrect; that in F.I.R. or in the evidence no specific role of causing any specific injury has been assigned to any of the appellants; that injured Raj Hans has died during the pendency of appeal; that appellants remained in custody during trial till grant of bail for a period of about 10 days and further remained in custody for similar period of about 10 days till grant of bail in this appeal vide order dated 17.2.1983 after conviction on 31.1.1983; that the appellant nos.4, 5 & 6 Ram Nath, Ram Het and Mahavir have attained the age of about 65, 65 & 59 years respectively; that maintaining the conviction the sentence of appellants may be reduced.
4. Per contra, learned A.G.A. supported the impugned judgment and order of conviction.
5. Upon hearing the parties' counsel and perusal of original record of court below summoned in the appeal, I find that during the pendency of appeal, appellant no.1, 2 & 3 Bhika, Betal and Defedar have died and appeal in respect of them has been abated vide order dated 21.2.2017. The perusal of record shows that all the accused persons six in number formed an unlawful assembly and in prosecution of common object of such unlawful assembly committed mar-pit with Amar Singh and Raj Hans resulting in multiple injuries to both of them. The argument of learned counsel for the appellants is correct that no appellant has been assigned with any specific role of causing any specific injury but since all the accused persons have committed the incident in prosecution of common object of the unlawful assembly, it becomes immaterial. However, in view of the facts and evidence on record and considering that the incident in question did take place on 8.6.1977 around 40 years back and no further criminal antecedent of the appellants, who are said to be family members is reported as well as looking to the ages of surviving appellants, who are around 60 years, maintaining the conviction of appellants if the sentence is reduced to the period of imprisonment already undergone, the same will meet the ends of justice.
6. The appeal is accordingly partly allowed and partly dismissed. It is partly dismissed and the impugned judgment and order with regard to conviction of accused appellants under Sections 147 and 323/149 I.P.C. is affirmed. The appeal is partly allowed and the sentence is reduced to the period of imprisonment already undergone.
7. The accused appellants are in custody. They will be released forthwith unless wanted in some other case.
8. The material exhibits, if any, shall be disposed off after statutory period in accordance with rules.
9. Let a copy of this order be sent to court below by Fax & E-mail forthwith.
10. Let lower court record be sent back to court below along with a copy of this order for necessary compliance forthwith.
Order Date :- 23.8.2018 Kpy