Court No. - 78
Case :- CRIMINAL APPEAL No. - 28 of 1986 Appellant :- Khushiyal And Others Respondent :- State of U.P.
Counsel for Appellant :- V.Singh,Ashish Bajpayee,Sanjeev Kumar Bajpai,V. Singh Counsel for Respondent :- AGA
Hon'ble Ajit Singh,J.
Heard Sri Ashish Bajpayee,learned counsel for the appellant, Sri S.N. Mishra, learned A.G.A. appearing for State and perused the record.
This criminal appeal has been preferred against the judgment and order dated 21.12.1985 passed by II Additional Sessions Judge, Mirzapur in Sessions Trial No. 101 of 1985 (State of U.P. Vs. Khushiyal and others and appellants were sentenced under section 324/34, 323/34 IPC and they were sentenced three years rigorous imprisonment and fine of Rs.1000/- each under section 324/34 IPC and six months rigorous imprisonment under section 323/34 IPC each and the appellants were acquitted under section 307 IPC.
The FIR of this incident was lodged by the complainant Salikram against the accused persons. It was alleged in the FIR that 10-12 years ago a quarrel had taken place between the complainant and the accused persons and since then both the complainant and accused persons were having enmity between them and on 27.11.1984 at about 5.30 P.M. when Paliram, brother of the complainant, was going to the field for grazing his horse and when he reached near the field of accused persons then accused Munnar abused and assaulted him with his weapon. The injured received incised wound and contusions on their person.
The trial court after recording evidence convicted the accused persons under the aforesaid sections vide judgment and order dated 21.12.1985.
Feeling aggrieved from the judgment and order dated 21.12.1985 passed by II Additional Sessions Judge, Mirzapur, this criminal appeal has been filed.
Learned counsel for the appellants submits that the incident has happened in the year 1985 and more than 35 years have passed and since then they are living peacefully. He has further submitted that the appellant no.1 Khushiyal and appellant no. 2 Shitla have died and the appeal in respect of appellant no. 1 Khushiyal and appellant no. 2 Shitla has been abated. The appellant no. 3 Lallu and appellant no. 4 Munner alias Mundar are aged about more than 70 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 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 this juncture. 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 t rial court has properly awarded sentence to the accused persons and no interference in their sentence is called for.
There is no criminal history of the appellants. It is also found that the appellants are more than 70 years of age 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 1985 and more than 35 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 and since the appellants have not challenged the finding of the conviction, hence the finding of conviction is affirmed and the sentence of the accused persons/appellants are modified to the period already undergone by them in prison and the fine Rs.2000/- is imposed. 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.
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 :- 21.9.2021 AU