Court No. - 41
Case :- CRIMINAL APPEAL No. - 2629 of 1983 Appellant :- Mishri Lal(died), Dina Nath(died), Munnoo Lal(died) and Subhash Respondent :- State Counsel for Appellant :- R.P. Mishra,Ashish Dwivedi Counsel for Respondent :- A.G.A.
Hon'ble Aniruddha Singh,J.
1. Appeal in respect of appellant Nos. 1 to 3 namely Misri Lal, Dina Nath and Munnoo Lal has been abated vide order dated 20.11.2017.
2. Heard Sri Ashish Dwivedi, learned counsel for the appellnt No. 4 Subhash only and learned AGA. Perused the record.
3. This criminal appeal has been filed against judgment and order dated 7.10.1983 passed by Additional Sessions Judge VIIIth, Bareilly in Sessions Trial No. 4 of 1982 convicting appellant under section 308 read with section 34 IPC and sentencing him to undergo rigorous imprisonment for three years.
4. In brief, facts of the case are that on 21.3.1979 at about 7 P.M. in the evening complainant Budh Sen was sitting at his Gher alongwith Noni Ram, Madan Lal, Mohan Lal, Jai Lal and Hori Lal. They were sitting around the fire and were smoking chillam. At the same time some Dhelas were thrown at the house of Budh Sen and one Dhela hit the head of Hori Lal. Dhela was thrown by Lekhraj son of Dina Lal. The complainant Budh Sen enquired from him as to why he had thrown the Dhela, at which Lekhraj became angry and started abusing Budh Sen. When they asked the boy not to do so, accused Misri Lal, Dina Lal, Bhanu and Subhash came there armed with lathis and then there was exchange of abuses from both sides. When Hori Lal abused, all the four accused started beating him. When Budh Sen rebuked them, the accused ran away towards their houses. Complainant did not follow them due to fear. His brother Hori Lal sustained several injuries, on account of which he could not speak. Budh Sen took him to the police station in a bullock cart and lodged a report.
5. Prosecution examined three witnesses of the occurrence in support of its case. They are P.W.-1 Budh Sen, P.W.-2 Hori Lal and P.W.-3 Jai Lal After recording statement of accused under section 313 Cr.P.C. and hearing learned counsel for the parties, Trial Court convicted appellant under Section 308 read with section 34 IPC and sentenced him to undergo rigorous imprisonment for three years.
6. Learned counsel for the appellant submitted that this accused Subhash is poor person belonging to another village. He is 60 years' old. According to statement of witnesses, general role was assigned to this accused and specific role was assigned to co-accused Dina Nath who caused injury on the chest of the deceased.
7. On the point of facts and conviction, the lower Appellate Court has given concurrent finding and view taken by that Court is plausible view. Hence no interference is called for on the point of conviction.
8. On the point of sentence learned counsel for the appellant submitted that the incident is of year 1979, about 38 years have elapsed; appellant Subhash belongs to poor family of rural area; He has spent about four months in jail. In the circumstances, no fruitful purpose would be served in sending him to jail and lenient view may be taken against appellant and he may be sentenced to imprisonment already undergone with fine.
9. Learned AGA opposed the prayer but on this point he did not raise any argument that the case is very old, hence a lenient view may be taken.
10. This Court in the case of Sukhbir and others vs. State of U.P. in Criminal Appeal No. 2905 of 1980 decided on 16.9.1999 and Supreme Court in Narayansingh Nathusingh vs. Natvarlal Hiralal Thakkar and another, (1981) 4 SCC 507 have reduced the sentence to the imprisonment already undergone with fine.
11. In the case of Ved Ram and others vs. State of U.P., 2010(68) ACC 182 wherein appellants have already remained in jail for almost eight months and on being satisfied with the period of incarceration, the Court imposed additional fine of Rs.1000/- and altered conviction from under Section 307 IPC to under section 324/149 IPC.
12. Hon'ble Apex Court in the case of State of Karnataka vs. Kaisarbaig and others, (2018) 4 SCC 403 sentenced the appellants to the period of imprisonment already undergone with fine of Rs.50,000/- in addition to what has already been paid to the victim under Section 148/324/149 IPC.
13. The Division Bench of Hon'ble Supreme Court in the case of Raman Kalia and another vs. State of Gujarat, AIR 1979 SC 1261 has held that "we would, therefore, while upholding the conviction of Raman Kalia under Section 323 I.P.C. reduce the sentence to the period already served, which we understand is about a month and a half."
14. Considering the age, social status, family background and gravity of offence against this accused, no fruitful purpose would be served in sending him to jail at this stage and it would be appropriate and justified to reduce sentence awarded by the appellate Court. Purpose would be served if he is convicted and sentenced to imprisonment already undergone with fine.
15. The appeal is partly allowed. Appellant No. 4 Subhash is convicted and sentenced to imprisonment already undergone with fine of Rs.10,000/- (Rupees ten thousand) under Section 308 IPC and in default to deposit fine, he shall undergo additional simple imprisonment for three months. Fine shall be deposited within two months from today before the CJM concerned which shall be paid to victim Hori Lal if he is alive within one month on deposit of the same.
16. Office is directed to transmit copy of this order and the record of lower Court, if any, to the Court below immediately. Compliance report be submitted within three months which shall be kept on record.
Order Date :- 26.10.2018 P.P.