Court No. - 50
Case :- CRIMINAL APPEAL No. - 4987 of 2018 Appellant :- Dhirendra Yadav And Another Respondent :- State Of U.P.
Counsel for Appellant :- Mithilesh Kumar Gupta Counsel for Respondent :- G.A.
Hon'ble Harsh Kumar,J.
The present appeal has been filed against the impugned judgment and order of conviction dated 4.8.2018 passed by Sessions Judge, Ghazipur in Criminal Misc. Case No.01 of 2017, State Vs. Dhirendra Yadav and 3 others, under section 344 Cr.P.C., P.S. Gahmar, District Ghazipur (arising out of S.T. No.336 of 2011, State Vs. Rajkumar Yadav and 3 others, Case Crime No.373 of 2011, under sections 498-A and 302 IPC, P.S. Gahmar, District Ghazipur) convicting and sentencing the appellants under section 344 Cr.P.C. for one month simple imprisonment.
Perusal of record shows that the impugned order of conviction has been passed under section 344 Cr.P.C. and the appeal under section 374(2) Cr.P.C. is not maintainable and can be filed only under section 351 Cr.P.C. Moreover, section 375 Cr.P.C. provides that in case the accused persons have pleaded guilty, no appeal shall lie except as to the extent or legality of sentence and so the appeal is admitted under section 351 read with section 375 Cr.P.C. only on the point of quantum/extent of the sentence.
Admit.
Lower court record need not be summoned.
Heard learned counsel for the appellants, learned AGA for the State and perused the record.
Learned counsel for the appellants submits that co-accused Smt. Malti and Smt. Dhanraji were also convicted and sentenced under section 344 Cr.P.C. on their confessional statements the same day vide order of same day dated 4.8.2018 at Annexure No.2 and were sentenced only with fine of Rs.500/-, while the appellants, who are brother and uncle of the deceased in same S.T. No.336 of 2011 have been sentenced with imprisonment for a period of one month; that the appellants were released on interim bail vide order dated 8.8.2018; that the sentence of appellants is also liable to be reduced to the period of imprisonment already undergone or is required to be converted to only fine of Rs.500/-, similar to co-accused Smt. Malti and Smt. Dhanraji.
Learned AGA supported the impugned order and contended that appellant no.1 Dhirendra Yadav is brother and first informant and appellant no.2 Kashinath Yadav is uncle of the deceased; that the first informant being male members, have been rightly sentenced with greater punishment of imprisonment for a period of one month and may not seek parity with Smt. Malti and Smt. Dhanraji, who are respectively Bhabhi (wife of appellant no.1 Dhirendra Yadav) and mother of deceased.
Upon hearing parties counsel and perusal of record, I find that the accused appellants Dhirendra Yadav and Kashinath Yadav as well as Smt. Malti Devi and Smt. Dhanraji were produced as P.W.1 to P.W.4 in S.T. No.336 of 2011, under sections 498-A and 302 IPC and 3/4 D.P. Act and turned hostile and acquitting the accused persons, learned Sessions Judge ordered to register criminal miscellaneous case against above witnesses under section 344 Cr.P.C. In above case, all the four accused who were summoned for giving false evidence in S.T. No. 336 of 2011 pleaded guilty, upon which all of them were convicted. Admittedly wife and mother of appellant no.1 Dhirendra Yadav have been sentenced with fine only and I find that the learned lower court failed to impose adequate sentence upon appellants by sentencing them with simple imprisonment for one month, while they also ought to have been sentenced similarly only with fine of Rs.500/- each.
In view of discussions made above, I find that the impugned order sentencing appellants with simple imprisonment for a period of one month is wrong and excessive and is liable to be set aside and each of the appellants is liable to be sentenced with fine of Rs.500/- only.
The appeal is allowed. The impugned order sentencing appellants with simple imprisonment for a period of one month is set aside and the sentence of each of the appellants is converted to fine of Rs.500/- only, to be deposited within one month and in case of default, each of the defaulter will have to undergo simple imprisonment for a period of one month.
Order Date :- 17.9.2018 Tamang