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Judgment reserved on 28.7.2021. Judgment delivered on 05.08.2021.
Court No. - 77
Case :- CRIMINAL APPEAL No. - 194 of 1988 Appellant :- Lallu And Others Respondent :- State Counsel for Appellant :- Prabodh Gaur,Lal Behari Yadav Counsel for Respondent :- A.G.A.
Hon'ble Anil Kumar Ojha,J.
Heard Sri Probodh Gaur, learned counsel for the appellants, learned A.G.A. for the State and perused the records.
2. Challenge in this criminal appeal is the judgment and order dated 25.1.1988 passed by VI Additional Sessions Judge, Azamgarh in S.T. No. 152 of 1987 (State Vs. Laalu and others) under Section 307, 323/34, 307/34 and 323 I.P.C., P.S.- Kopaganj, District- Azamgarh, whereby the learned VI Additional Sessions Judge, Azamgarh has convicted appellant no.1 Laalu and sentenced him to undergo 5 years R.I. under Section 307 I.P.C. and 1 year R.I. under Section 323 I.P.C. read with Section 34 I.P.C. and convicted appellant no.2 Baadu and appellant no.3 Laldhar and sentenced them to undergo 5 years R.I. under Section 307 I.P.C. read with Section 34 I.P.C. and to one year R.I. under Section 323 I.P.C. Above sentences were ordered to run concurrently.
3. Tersely put the prosecution case is that complainant Dinesh lodged an F.I.R. on 12/13.12.1985 at about 05:45 AM at P.S.- Kopaganj, District- Azamgarh stating therein that on 12/13.12.1985 at about 1:00 AM, in the night, complainant Dinesh along with his uncle Badri Chauhan went to see dance at Kali Ji place outside his village. When complainant did not return to his house late in the night, his mother went there to call him. While, complainant along with his mother and uncle was returning to his house, when they reached in front of house of Baadu Chauhan at about 1:00 A.M., accused Laalu Chauhan armed with spears (Ballam) and accused Baadu and Laldhar armed with Lathi came there and abused the complainant and threatened to kill him. Accused persons started beating the complainant by Ballam and Lathi. Laalu Chauhan beaten the complainant in his stomach by Ballam and co-accused Baadu and Laldhar beaten the complainant by sticks. Complainant Dinesh sustained grievous injury and fell down there. Complainant’s mother and uncle started crying. Hearing the noise, witnesses Ravindra and Dashrath Yadav came there and saw accused-persons in the light of torch. Complainant and witnesses were having torch in their hand. Complainant submitted a written report at P.S. Kopaganj.
4. On the basis of written report submitted by the complainant, a case was registered against accused persons Laalu Chauhan, Baadu and Laldhar in Case Crime No. 199/1985 under Section 307 I.P.C., P.S.-Kopaganj, District- Azamgarh.
Police started the investigation and got done medical examination of the injured. Statement of witnesses was also recorded.
5. After completion of the investigation, Police submitted charge sheet against Lallu Chauhan, Laldhar and Badhu Chauhan in Case Crime No. 199/1985 under Section 307 I.P.C., P.S.-Kansganj, District-Azamgarh. On 21.5.1987, The then learned Additional Sessions Judge, Azamgarh charged appellant Laalu under Section 307 I.P.C. and 323 I.P.C. read with Section 34 I.P.C., appellant no.2 Baadu and appellant no.3 Laldhar were also charged under Section 323 I.P.C. and 307 I.P.C. read with Section 34 I.P.C. Appellants denied the charges and claimed trial.
6. Prosecution was directed to adduce evidence. Prosecution examined. P.W.-1 Dinesh, who is the complainant of the case, P.W.-2 Uttami mother of the complainant injured Dinesh, was also examined and P.W.-3 Badri, who is the Uncle of complainant injured Dinesh. All three witnesses have supported the prosecution case.
7. P.W.-4 Girja Shankar Dwivedi, who is the Sub-Inspector at P.S.- Kopaganj, District- Azamgarh, investigated the case and submitted charge sheet. P.W.-4 the Sub-Inspector Girja Shankar Dwivedi proved the chik report Ext. Ka-2, carbon copy of the GD Ext. Ka-3, Mazroobi Chitti Ext. Ka-4, site plan Ext. Ka-5 and charge sheet Ext. Ka-6.
8. P.W.-5 Dr. B.N. Prasad examined the injured Dinesh on 13.12.1985 at 6:30 A:M and found following injuries on his body:-
(i) Lacerated wound 2 cm X 0.5 cm X skin deep on the middle of the head margin irregular placed vertically.
(ii) A traumatic swelling 8 cm X 6 cm on the interior aspect of the left hand advised X-ray AD Lateral view of the right hand including wrist joint.
(iii) A penetrating wound 3 cm X 15 cm on the left side of the abdomen 5cm from the iliac crest placed horizontally oval in shape margins regular and sharp edge on touch a visceral matter come out from the wound.
(iv) An incised wound 1.5 cm X 0.2 cm on the left side of the abdomen just 2 cm lateral to the injury no.3.
(v) Complaint of pain on the back.
All injuries are simple in nature caused by hard and blunt object except injury no. 3 and 4 caused by penetrating and sharp weapon and all of injuries are within six hours of duration.
9. After conclusion of the evidence, statement of the appellants was recorded under Section 313 Cr.P.C., appellants denied the evidence and stated that they have been falsely implicated owing to enmity.
10. After hearing the prosecution and defence, the learned VI Additional Sessions Judge, Azamgarh, convicted the appellants on 25.1.1998 and sentenced as stated above.
11. Aggrieved by the aforesaid judgment and order dated 25.1.1988 passed by VI learned Additional Session Judge, Azamgarh, appellants preferred an appeal before this Hon’ble Court.
12. Appeal was admitted on 28.1.1988. Thus, this appeal is more than 33 years old.
13. The Chief Judicial Magistrate, Azamgarh submitted a report dated 31.1.2017 stating therein that appellant no.1 Laalu and appellant no.2 Badu have died. On 1.3.2017, The court passed order that appeal with respect to Laalu and Baadu stands abated. Thus, appeal of appellant no.3 has to be considered only.
14. Learned counsel for the appellant no.3 Laldhar submitted that appellant no.3 Laldhar is now 80 years old. Occurrence took place 35 years ago. Case against appellant no. 3 Laldhar utmost falls under Section 323 I.P.C. Sympathetic view be taken in the matter.
15. Learned A.G.A. countered the above submissions and contended that charge under Section 307 I.P.C. read with Section 34 along with Section 323 has been framed against appellant no.3 Laldhar. He further submitted that before the trial Court, a suggestion has been put to the witnesses that injured Dinesh sustained injuries in the dacoity on the date of alleged incident. Hence, case against appellant no.3 Laldhar under Section 307 I.P.C. read with Section 34 along with Section 323 I.P.C. is proved beyond reasonable doubt.
16. Alleged incident took place on 12/13.12.1985 at about 1:00 A.M. in the night. The distance of police station from the place of occurrence has not been mentioned in the chik F.I.R. The F.I.R. was lodged on 12/13.12.1985 at about 5:45 A.M.
Thus, F.I.R. has been lodged within 5 hours of the alleged incident as discernible from F.I.R. Ext. Ka-1.
It is, accordingly, held that F.I.R. of the case has been promptly lodged.
17. So far as motive is concerned, it is clear cut case of the prosecution that there is enmity between the prosecution and appellants regarding litigation pending in the Court. Motive has also been proved by prosecution witnesses.
P.W.-1 Dinesh is the complainant of the case. Appellant no.3 Laldhar belongs to the village of the complainant. P.W.-1 Dinesh has specifically stated in his statement, in the Court, that appellant no.3 Laldhar beaten him by sticks. He and his mother P.W.-2 Uttami and his Uncle P.W.-3 Badri saw and recognized appellant no.3 in the light of torch. Witnesses have said in their statement at page 20 of the paper book that it was moon light on the date of occurrence. Evidence of P.W.-1 Dinesh is probable and natural. There is nothing on record to discredit his evidence. P.W.-2 Uttami, who is the mother of injured complainant Dinesh, has also supported the prosecution case. Likewise, P.W.-3 Badri, who is the uncle of injured Dinesh, has also supported the prosecution case.
18. There is no contradiction between medical and oral evidence. P.W.-4 Dr. B.N. Prasad has opined that injury no.1 and 2 of injured Dinesh can be caused by lathi. The appellant no.3 Laldhar was armed with lathi. Prosecution witnesses have stated in their evidence/statement that appellant no.3 Laldhar beaten the injured Dinesh by lathi (Stick).
Thus, oral evidence of the witnesses is corroborated by medical evidence.
19. From the above discussion, it is manifest that evidence of P.W.-1 Dinesh, P.W.-2 Uttami and P.W.-3 Badri is probable and natural. F.I.R. has been lodged with promptitude. There is motive of litigation pending between the parties to commit the alleged incident. There is no contradiction between medical and oral evidence.
Accordingly, findings recorded by the learned VI Additional Sessions Judge, Azamgarh regarding guilt of the appellant no.3 Laldhar deserves confirmation.
20. Appellant Laldhar has been sentenced under Section 307 I.P.C. read with Section 34 I.P.C. with five years R.I. and under Section 323 I.P.C. one year R.I.
Learned Counsel for the appellant submitted that at the time of incident, appellant was nearly 50 years of age. Now, at the time of hearing of this appeal, he is more than 80 years old and is unable to walk independently. His case should be considered sympathetically and less sentence should be awarded to him.
21. In the statement recorded under Section 313 Cr.P.C., the age of the appellant no.3 Laldhar has been mentioned as 48 years. Appellant’s statement was recorded on 6.1.1988 and this is 2021. Thus, appellant, as of now, must be more than 80 years of age. Moreover, role of causing injury by Ballam has not been assigned to the appellant.
22. Looking to the facts and circumstances of the case, age of appellant, who is more than 80 years of age, sympathetic view should be taken while awarding sentence.
Accordingly, findings of guilt recorded by learned court below is upheld. However, sentence is being reduced.
Appeal is partly allowed.
23. Appellant no.3 Laldhar is convicted and sentenced to two years rigorous imprisonment and Rs. 10,000/- fine under Section 307 I.P.C. read with Section 34 I.P.C. and six months rigorous imprisonment under Section 323 I.P.C. In case of default in payment of fine, appellant no.3 Laldhar will have to undergo three months additional rigorous imprisonment.
Amount of fine, if deposited, shall be paid to the injured. In case of his death, the amount shall be paid to the legal heirs of the injured. Above sentences shall run concurrently.
The bail bonds of sole surviving appellant no.3 Laldhar is hereby cancelled. He shall be taken into custody and made to serve out the sentence awarded to him.
Let a copy of this judgment be sent to the lower court for compliance.
Order Date :- 28.7.2021 CS/-