Court No. - 71
Case :- CRIMINAL APPEAL No. - 2999 of 1985 Appellant :- Hariya And Another Respondent :- State Of U.P.
Counsel for Appellant :- A.B.L. Gaur,Jai Shanker Audichya,K.K.Upadhyay Counsel for Respondent :- A.G.A.
Hon'ble Ajit Singh,J.
This criminal appeal has been filed against the judgment and order dated 17.10.1985 passed by the Second Addl. Sessions Judge, Bulandshahar in S.T. No. 410 of 1983 (State vs. Hariya and another), by which the appellants Hariya and Bishambhar alias Billu have been convicted and sentenced to 6 months Rigorous Imprisonment under Section 323 I.P.C.
The brief facts of this case are that on 4.12.1980 at about 5:30 P.M. Krishna Lal son of Chitar Singh Jatav resident of village- Shikoi had lodged a first information report against the accused-appellant at police station Anupshahar alleging therein that at about 3:30 P.M. he was going to 'Kolhu' (sugarcane crushing machine) of Niranjan Pradhan in the bullock cart of Niranjan, both the accused Hariya and Bishambhar alias Billu pulled him out from the bullock cart and after hurling abuses they started assaulting him with lathies with the intention to kill him. After hearing the alarm raised by the victim Kishan Lal, several villagers namely, Laxman son of Teja, Munni Bishnu, Ram Chandra son of Chitar and Chaudhariya son of Kirori rushed to the spot. The accused fled away from the spot after threatening the victim with dire consequences. The injured Kishan Lal went to the police station after getting his F.I.R. (Ext. Ka-1) scribed by Ram Kishor and submitted the same at police station, on which a case was registered as G.D. No. 26. Chik F.I.R. (Ext. Ka-3) was prepared by Clerk-constable Sohanpal. The investigation of the case was entrusted to S.I. Niwas Sharma who after completion of investigation submitted charge sheet against both the accused Hariya and Bishambhar alias Billu. Since the case was triable by the court of Session, learned Judicial Magistrate-I, Bulandshahar committed the case to the Court of Session on 28.6.1983 to face the trial. Charge was framed against the accused-appellants under Section 323 I.P.C., who pleaded not guilty and claimed to be tried.
The prosecution in order to prove its case, examined five witnesses. PW1 is the complainant/informant Kishan Lal, PW2 Chaudhariya and PW3 Ram Chandra are alleged the eye witnesses of the occurrence, PW4 Dr. Suresh Kumar who examined the injured Kishan Lal and PW5 S.I. Ram Niwas, the Investigation Officer of the case.
The accused persons have been examined under Section 313 Cr.P.C. and both of them denied the guilt. The accused in their statements have stated that complainant Kishan Lal is a Chaukidar of the village and there was no enmity between them. They also stated that they have not committed any offence and have been falsely implicated in the present case due to village factional politics.
PW1 injured/complainant has fully supported the prosecution case. He has deposed that he is a 'Chaukidar' in village Shikoi and on the date of incident, i.e. 4.12.1980 at about 3 P.M. he was going in a bullock cart of Niranjan Pradhan when both the accused Hariya and Billu came and after hurling abuses started beating him with lathies causing serious injuries to him. Upon hearing the alarm raised by the victim, Ram Chandra, Munni and Laxman reached the spot. The first information report was scribed by Ram Kishor, resident of the same village and accused put their signatures on it. The F.I.R. (Ext. Ka-1) was proved by him.
So far as PW2 Chaudhariya is concerned, he has been declared hostile by the prosecution. He deposed that neither he was present at the place of occurrence at the time of incident nor he was aware about the incident.
PW3 Ram Chandra has deposed that both the accused have committed maar-peet with Kishan Lal. He further deposed that he had not seen the incident. He has also been declared hostile. PW4 Suresh Kumar, the medical officer has deposed that on 4.12.1980 at about 6:15 p.m. he examined Kishan Lal who was brought by constable Abdul Hamid. He found following injuries on his person :-
1. Lacerated wound 5.5cm x .5cm x scalp deep right side head 5cm above middle of right eye brow. Clotted blood present around the wound, bleeding present.
2. Lacerated wound 5cm x 0.5cm x scalp deep 8cm above right ear. Clotted blood present around the wound. Bleeding present.
3. L/W 2cm x 0.5cm x skin deep 8.5cm above left ear.
Bleeding present.
4. Contusion 17cm x 2.5cm on the upper half of right back and upper arm and back of shoulder joint bright red.
5. Contusion 8cm x 2cm on the right side back lower side, bright red.
6. Abraded contusion 5cm x 1cm on the back of right forearm 8cm below elbow joint. Clotted blood present. Colour red.
7. Abraded contusion 3.5cm x 1cm on the back of left forearm 7.5 committee of management above wrist joint. Colour red.
8. Abrasion 15cm x 1cm on the outer part of ankle joint.
Oozing present.
9. Contusion 5cm x 1.5cm on the outer and middle of left leg. Colour red.
(10) Contusion 3cm x 1.2cm on the front of right shoulder joint. Red bright.
According to Doctor all the injuries sustained by the injured were caused by some blunt object like lathi-danda. The injuries are simple in nature. He proved the injury report as Ext. Ka-2.
After perusal of the entire evidence it is pointed out that the accused have got no concern with the alleged maar-peet. They have not committed any offence and have been falsely implicated in the present case due to village factional politics.
The only argument of the learned counsel for the appellants is that Kishan Pal PW1 is the only witness against the accused persons. The alleged independent witness of the occurrence have been declared hostile and have not supported the prosecution case. PW1 Kishan Pal is the only witness who is interested and partisan and his evidence is untrustworthy.
Learned counsel for the appellants submitted that at present both the accused are more than 60 years of age and they are suffering from age related ailments. He next submitted that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and their age related ailments.
Learned A.G.A. has submitted that the impugned order is valid and no interference is required in the impugned order, hence the appeal be dismissed and accused be directed to suffer the sentence.
After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering the statements of the independent witnesses who have been declared hostile and considering the age of the accused-appellants, this Court feels it would not be proper to sent the accused appellants to jail as the accused were on bail during trial and no criminal antecedents have been shown to their credit. At this stage, it does not appear appropriate to send the accused-appellants to jail. Considering all these facts it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be enhanced.
Considering all the facts and circumstances of the case, the accused-appellants are sentenced to the period already undergone by him in jail during trial and an amount of fine of Rs. 5000/- be imposed instead of sending him to jail.
Accused-appellants are directed to deposit the fine of Rs. 5000/- before learned lower court within three months from the date of passing of the judgement out of which Rs. 4000/- shall be paid to the injured, if he is alive and in case he is dead, then it would be paid to his legal heirs and in default of payment of fine accused-appellants shall further undergo 15 days imprisonment.
Appeal is partly allowed in the above terms.
Copy of this order be transmitted to the concerned lower court forthwith for compliance.
Order Date :- 26.4.2019 Faridul