Court No. - 78
Case :- CRIMINAL APPEAL No. - 2805 of 1982 Appellant :- Katwaru And Others Respondent :- State Counsel for Appellant :- V.Sahai,Ashok Malviya,B.Dayal Counsel for Respondent :- A.G.A.
Hon'ble Ajit Singh,J.
The Court has been informed that appellant no.1, Katwaru and appellant no.3, Hiralal Yadav have already died and in this regard C.J.M., Sonbhadra has submitted a report dated 10.09.2021. Considering the report of the C.J.M., Sonbhadra, the appeal in respect of appellant no.1 Katwaru and appellant no.3 Hiralal Yadav stands abated.
Heard Sri Ashok Malviya, learned counsel appearing on behalf of surviving appellant nos. 2 and 4, learned A.G.A. appearing for State and perused the record.
This criminal appeal has been preferred against the judgment and order dated 06.11.1982 passed by Vth Additional Sessions Judge, Mirzapur in Sessions Trial No. 274 of 1981 (State of U.P. Vs. Katwaru and others), whereby the appellants were convicted and sentenced to undergo four years rigorous imprisonment under Section 308 IPC and three years rigorous imprisonment under Section 325 IPC read with Section 34 IPC.
The brief facts of the prosecution case are that complainant Sobhath Pandey had given an information to the police on 07.03.1981 at about 08:00 am that accused persons, namely, Katwaru, Sumaroo @ Sardar, Hiralal Yadav and Phool Chand Yadav were placing paddy and hay in the land of Sobhnath Pandey beneath the bamboo clump and when the complainant Sobhnath Pandey checked the accused persons from keeping the paddy and hay beneath the bamboo clump, accused Katwaru exhorted his sons and brother to kill Sobhnath Pandey to death. On exhortation of Katwaru, accused Hiralal, Phool Chand and Sumaroo @ Sardar armed with lathi came there and started assaulting Sobhnath Pandey. When Sobhnath Pandey raised alarm, then witnesses came at the spot and saw the incident and the complainant Sobhnath Pandey became unconscious by the attack of accused persons and thereafter the accused ran away. Sobhnath Pandey was sent to Primary Health Centre, Ghorawal and his examination was conducted by Dr. Ramji Singh and the doctor advised for x-Ray of injury no.6 of Sobhnath Pandey. In the x-Ray, IIIrd metacarpal bone of left hand was found fractured. The matter was investigated and after investigation police submitted charge-sheet against accused persons.
The trial court after examining the prosecution witnesses and hearing the accused persons under Section 313 Cr.P.C., convicted and sentenced the accused persons to undergo four years rigorous imprisonment under Section 308 I.P.C. and three years rigorous imprisonment under Section 325 I.P.C. read with Section 34 I.P.C.
Feeling aggrieved from the judgment and order dated 06.11.1982 passed by Vth Additional Sessions Judge, Mirzapur, this criminal appeal has been filed.
Learned counsel for the appellants has submitted that the injured had received only simple injuries which is evident from the medical report of the injured and the incident had taken place at the spur of moment over a pity issue and there was no premeditation or intention to assault the injured. Learned counsel for the appellants has further submitted that the offence under Section 308 I.P.C. is not made out as the injuries sustained by the injured were simple in nature and the doctor has not opined that the injuries were fatal to the life of the injured. So the conviction under Section 308 I.P.C. is not proper and the accused-appellant could be convicted under Sections 324 and 325 I.P.C.
Learned counsel for the appellants further submits that the incident has happened in the year 1981 and more than 40 years have passed and since then they are living peacefully. The surviving appellant no.2 Sumaroo @ Sardar is aged about 73 years and appellant no.4 Phool Chand Yadav is aged about 55 years. Learned counsel for the appellants has further submitted that he does not want to argue the appeal on merit and he has further submitted that during trial after conviction the surviving appellants had served the prison term of about four months. Learned counsel for the appellant has further prayed that since the accused persons are old, they should not be sent to jail at the fag-end of their life. He has further submitted that the appellants are suffering from age related ailments and prays to the Court that they may be leniently dealt with in terms of the sentence.
Learned A.G.A. has opposed the appeal and has submitted that the trial court has properly awarded sentence to the accused persons and no interference in their sentence is called for, but he could not dispute that the doctor has not opined that injuries sustained by the injured were fatal to the life of injured and he has received simple injuries except injury no.6 in which fracture was found.
There is no criminal history of the appellants. It is also found that the appellants are old persons and they are also not young men and they have a family to maintain. These points should be considered for mitigating their sentence.
In the case of Bankat and another Vs. State of Maharashtra, reported in (2005) 1 SCC, 343; accused were convicted under Section 326 I.P.C. and sentenced for one year imprisonment with fine. Hon'ble Apex Court reduced the sentence to the period already undergone on the ground that the parties have settled the dispute outside the Court and 10 years have elapsed from the date of incident.
In the case of Sattan Sahani Vs. State of Bihar and others, reported in (2002) 7 SCC, 604; accused were sentenced to three years' rigorous imprisonment under Section 326 I.P.C. In appeal, Hon'ble Supreme Court reduced the sentence to the period already undergone on the ground that the incident took place two decades back and parties have also compromised.
In the case of Uthem Rqajanna Vs. State of A.P., reported in 2005 (11) SCC, 531, accused was convicted and sentenced for six months under Section 304-A I.P.C. along with fine and for three months under Section 338 I.P.C. In appeal Hon'ble Supreme Court has reduced the sentence to the period already undergone.
In the case of Neelam Bahal and another Vs. State of Uttarakhand, reported in (2010) 2 SCC, 229; accused was convicted under Section 307 I.P.C. and was sentenced to undergo seven years' rigorous imprisonment. Hon'ble Supreme Court has convicted accused under Section 326 I.P.C. and reduced the sentence to period already undergone, i.e. almost one year, on the ground that the incident happened in the year 1987 when the accused was of young age of 25 years.
After considering the submissions of learned counsel for the parties and the facts and circumstances of the case and considering the age of the accused/appellants and considering that the incident has taken place in the year 1981 and more than 40 years have elapsed after the incident and the accused persons have suffered the mental and physical agony of criminal trial and conviction for a long period and now it would not be in the interest of justice that the accused/appellants be sent to jail to serve their remaining sentences.
Considering the arguments of learned counsel for the appellants and the evidence on record, the conviction from Section 308 I.P.C. is modified to Section 324 I.P.C. and the appellants are convicted under Sections 324 and 325 I.P.C. and they are sentenced in both the sections for the period already undergone by them in prison with a fine of Rs. 1,000/- each under Section 324 I.P.C. The fine amount will be given to the injured and in case the injured has died, the fine amount will be given to the legal heirs of the injured and the fine amount will be deposited by the accused persons within three months from the date of the order in appeal. Since the appellants have not challenged the finding of the conviction, hence the finding of conviction is affirmed subject to the condition that conviction under Section 308 I.P.C. is modified to Section 324 I.P.C. and they are convicted as aforesaid.
Accordingly, this appeal is partly allowed and the conviction of the accused/appellants in the aforesaid case is confirmed but the sentence is reduced to the period already undergone and fine as imposed. The bail bonds of the appellants are cancelled.
Office is directed to certify the judgment to the learned trial court for compliance and the lower court of the case be transmitted forthwith.
Order Date :- 30.9.2021 Vikas