Heard Sri Girish Kumar Gupta, learned counsel for the appellant and Sri. Om Narain Tripathi, learned A.G.A. for the State and perused the material brought on record.
By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 30.07.1991 passed by Special Judge/Additional Sessions Judge, Allahabad in Sessions Trial No.238 of 1987 (State Vs. Dasrath and another), Police Station- Kokhraj, District- Allahabad, whereby the appellant- Dasrath- has been convicted and sentenced to undergo 6 months R.I., under Section 323 IPC.
It is relevant to mention that in this case, appellant no.2-Narain Pasi expired during the pendency of this appeal, therefore, this appeal stood abated qua appellant no.2-Narain Pasi vide order of this Court dated 6.4.2018.
Record reflects that in this case an FIR was lodged on 5.12.1985 at Police Station- Kokhraj at 10:40 a.m. by Informant- Lalloo s/o Bakridi Farmood regarding the incident having been caused by appellants- Dasrath Pasi and Narain Pasi by causing injuries on the head of the injured- Farmood Ahmad by assaulting with kudal (spade attached with iron rod) like weapons. The incident was stated to have taken place at 9:00 a.m. in the morning at Government Tubewell in Village- Bhiknapur within Police Station- Kokhraj. This contents of the report was noted in the relevant Check FIR at Case Crime No.265 of 1985, under Section-308/323 I.P.C. and case was registered in the concerned General Diary entry of aforesaid date and time at Police Station-Kokhraj. Medical examination of the injured was done at the Primary Health Care, Mooratganj, the very same day on 5.12.1985 by Dr. K.N. Singh - PW-6 at 12:45 p.m., wherein the following four injuries were noted on examination:-
(i) Contusion 2 x 1/2" x 2" on left temporopercital region with 1/4" x 1/4" lacerated would in the middle of the continued swelling wound bleeding.
(ii) Lacerated wound 1" x 1/4" skin deep on left side of forehead horizontally situated.
(iii) Bleeding per ear left present. C/o Bleeding Per nose.
(iv) Traumatic swelling 1" x 1" on left zygomatic bone.
Injury no.1 was found simple, whereas the other three injuries 1, 2 and 3 were kept under observation and x-ray of skull was advised, however, on x-ray examination of the skull, no abnormality was detected.
The matter was investigated into by S.I. Raj Bahadur Singh. He reached to the spot and recorded statements of the witnesses under Section-161 Cr.P.C. and prepared the site plan and after completing the entire investigation submitted the charge-sheet Ext. Ka-3. As a sequel to that Magistrate concerned committed the case to the court of sessions. When the record was received in the court of sessions Judge, Allahabad he got it numbered as S.T. NO.238 of 1987 State vs. Dasrath and others under Section-308/323 I.P.C. Then the sessions trial was transferred to the court of Special Judge (Economic Offences) Allahabad. The then Special Judge/Additional Sessions Judge Allahabad framed charge against accused- Dasrath Pasi under Sections-308 and 323 I.P.C. Simpliciter and again he framed charge against both the accused-Dasrath Pasi and Narain Pasi under Section- 308 I.P.C. read with Section-34 I.P.C. and 323 read with Section-34 I.P.C. The accused pleaded not guilty and claimed to be tried.
In support of the case prosecution examined Farmood Ahmad as PW-1, Lalloo s/o Bakridi as PW-2, Police Sub-Inspector Rajesh Bahadur Singh, the Investigating Officer as PW-3, Dr. Satish Chandra Shukla as PW-4, Constable Ram Gulab Mishra as PW-5 and Dr. K.N. Singh, Radiologist as PW-6.
After closure of the evidence for the prosecution, the statement of the accused was recorded under Section-313 Cr.P.C. The accused claimed his implication false due to enmity.
No evidence was adduced on behalf of the accused in their defence.
The court below after considering the merit of the case recorded conviction for the charge under the aforesaid section 323 I.P.C. and passed the sentence for six months rigorous imprisonment.
Resultantly, this appeal.
At the outset, learned counsel for the appellant has laid stress on the point that he would not assail the merit of the case, but he would like to extend argument on quantum of sentence only because the conviction was made around 26 years ago and the appellant has grown old in the meanwhile. There was no motive for committing any offence and the dispute arose only on trifling issue of taking water from the tubewell, resulting into, heated altercation between both the parties, which led to sudden outburst resulting in injuries being caused to the injured- Farmood Ahmad.
He next contended that in this case, initially an FIR was lodged, interalia, under Section 308 I.P.C. at Police Station- Kokhraj, Allahabad and the appellant stood suffered detention during the trial also. The appellant is already in jail in this case by order of this Court from 11.7.2018 and has suffered more than two months of imprisonment as such, he has undergone over three months of imprisonment. Therefore, sentence imposed by the trial court may be modified and should be reduced to the period of detention undergone and the injured may be compensated in terms of fine.
Learned A.G.A. has also submitted that looking to the nature and circumstances of this case and the injury caused on the injured- Farmood Ahmad and looking to the ends of justice, the plea of modification may be considered but the injured must be compensated for the injuries and loss suffered by him-while he was injured by the act of the appellant.
In view of specific plea raised by the appellant for modification of sentence, it would be relevant to take note of fact that the point of conviction has not been questioned and challenged, it would not be of any use to narrate the entire facts and incidents of this case, which led to the conviction of the appellant. However, for the purpose of proper understanding of the case and the sentencing of the accused necessary and relevant facts are to be taken into consideration and reference of the same is being made here.
Upon careful perusal of the written report, Exhibit Ka-1, it is noticeable that on 5.12.1986 at about 9 a.m. one Lalloo s/o Bakridi Farmood s/o Gherau and Lalmian s/o Azruddin of village Midhwapur, Police Station Kokhraj and Dasrath and Narain were present at the tubewell for water and heated altercation ensued between Dasrath Pasi and Farmood on account of getting water. On the instigation of Narain, Dasrath caused blow with a spade from its back side on the head of Farmood. Farmood received lacerated injuries on his head and ear. On receiving the injuries, Farmood fell down and was rendered unconscious. Dasrath wanted to give another blow, but was caught by Lalloo and in this process the spade slipped from the hands of Dasrath and caused injury on the back of Lalloo. On alarm being raised, the accused ran away towards their house. As the condition of Farmood was serious, he was brought to the Mooratganj Primary health Centre for treatment.
Now, the question arises about the nature of the offence, committed by the accused. From the statements of Dr. K.N. Singh PW-6, it appears that when Farmood Ahmad was brought to the Civil Hospital for treatment, he was conscious and he could even walk and move. According to the statements of Dr. K.N. Singh injury no.4 of Farmood Ahmad was simple in nature and injury no.1, 2 and 3 were kept under observation and adviced x-ray of skull. X-ray of skull was done on 6.12.86, but no abnormality was detected. Therefore, it is clear that no grievous injury was caused on the head of the injured. From the nature of injuries caused on the head of injured, no offence under 308 IPC was made out, therefore, the trial court acquitted the accused- Dasrath of charge under Section-308 I.P.C., but convicted him under Section-323 I.P.C., which finding of conviction has not been assailed by the appellant at this juncture, however, a lenient view has been sought to be taken on the point of quantum of sentence and it has been specifically urged that it would in the fitness of things, if the sentence of six months of rigorous imprisonment may be diluted to the imprisonment already undergone and the injured be compensated in terms of imposition of sentence on the accused.
While, considering the sentencing part, it is incumbent upon the court to consider the facts and circumstances of the case, vis-a-vis, the nature of the offence committed. It is admitted fact that the dispute arose between the injured and the accused on the point of taking water from the tubewell and the heated altercation took place on the spot which developed to the extent that the accused caused injuries on Farmood Ahmad- the injured-which injuries as have been discussed herein above were considered by the trial court. It is obvious that there was no pre- meditation or specific motive for committing the offence and it is also admitted position that the incident took place around 26 years ago in December, 1985 and the appellant is stated to have been in detention during trial for about one month and he is currently detained by the order of this Court since 11.7.2018, this way, the appellant has already suffered half of the sentence imposed upon him by the trial court.
Now, considering the entirety of the case and looking to the nature of offence committed, it would be in the interest of justice that the prayer raised for modification of the sentencing order be given due consideration. It is correct that an accused should be punished with adequate sentence for the offence, which he has committed but sentencing part of the trial assumes much importance and it should be proportionate to the offence committed and a balance of facts and circumstances pros and cons should be maintained while awarding punishment.
As observed herein above that the appellant has suffered detention for about 3 months period and he may be fined in addition to the period of detention and half of the amount of fine should be given to the injured and in case of death of injured to his legal heir/successor, as the case may be.
Consequently, it is directed that the sentence of six months rigorous imprisonment imposed by the trial court is modified to the period of detention already suffered by the appellant, which is about three months in all in this case coupled with fine Rs.8,000/- and in case of default in payment of fine the appellant would have to suffer additional imprisonment for one month period. However, in case of deposition of fine, half of the amount shall be given to the injured or to his legal heir/ successor, as the case may be.
Accordingly, the sentence imposed by the trial court on the accused vide its judgment and order dated 30.7.1991 stands modified, while the conviction under Section-323 I.P.C. is maintained.
In view of above, this appeal is allowed partly as aforesaid.
The appellant is in jail. He shall be set free after deposition of fine and in case he does not deposit the fine as awarded by this Court, he shall remain under detention for serving out the additional one month imprisonment.
Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.
Order Date :- 20.9.2018 S Rawat