Court No. - 41
Reserved on 27.09.2018 Delivered on 27.10.2018
Case :- CRIMINAL REVISION No. - 1101 of 1990 Revisionist :- Ram Saran & Others Opposite Party :- State Of U.P. Counsel for Revisionist :- V.B. Rao Counsel for Opposite Party :- A.G.A.
Hon'ble Aniruddha Singh,J.
Present revision in respect of revisionist Nos. 1, 2 and 3 namely Ram Saran, Sheo Mohan and Gaya has already been abated vide order dated 18.01.2018.
Heard Sri Ramesh Prasad, learned counsel for the revisionist nos. 4 and 5 and Sri Mayank Mishra, learned brief holder appearing for the State and perused the record.
This criminal revision has been preferred under Section 397/401 Cr.P.C. by Ram Saran, Sheo Mohan, Gaya, Jhanda and Paragi, against the judgment and order dated 06.04.1990 passed by 3rd Additional Chief Judicial Magistrate, Banda, in Criminal Case No. 22/IX/90, convicting the revisionists under Section 147 IPC and sentencing them to undergo rigorous imprisonment for six months each and under Section 325/34 IPC convicting the revisionists and sentencing them to undergo rigorous imprisonment of two years and half months each, and against the judgment and order dated 09.07.1990 passed by the Session Judge, Banda, in Criminal Appeal No. 31 of 1990 confirming conviction and sentence awarded by the trial court, subject to modification that each of the accused-revisionists will be deemed to have been convicted U/s 325/149 IPC instead of 325/34 IPC.
The prosecution story in brief is that on 25.07.87 at about 11.00 a.m. Sri Chhitani son of Ram Sanehi resident of village Chhilolar, P.S. Kamasin District Banda was returning from fields to his village. When he reached near the Khalihan of Bhagwat, five accused met him. They were armed with lathis. Accused Ram Saran complained that Chhitani has taken possession of the land of the house of Ram Saran and threatened to kill Chhitani. All the five accused persons began to inflict lathi blows to Sri Chhitani who raised alarm. Witnesses Munnu Lal and Shiv Prasad arrived and the accused ran away. On information being given, Sri Ram Sanehi father of the injured went to the place of occurrence, brought Sri Ram Sanehi to the village, dictated F.I.R. to witness Munnu Lal and took the injured to Kamasin where F.I.R. was lodged and case registered at 5.00 p.m. the same day. The injured was sent for medical examination which was conducted at 5.25 p.m. Injury report was prepared. On X-ray examination Dr. M.C. Mittal found fracture of 4th metacorpal bone of left hand, of 5th Metalorsal and proxymal phalanx of left foot, fracture of upper third of right radius and fracture of lower third of right ulna bone. Case was, therefore, converted and charge-sheet submitted U/s 147 and 325 IPC. The accused pleaded not guilty. The prosecution examined complainant P.W.-1 Ram Sanehi, injured P.W.-2 Sri Chhitani, eye witness, Munnu Lal as P.W.-3 besides I.O. Prem Lal(P.W.-4), Dr. Y.S. Sachan(P.W.-5), who conducted medical examination and Dr. M.C. Mittal (P.W.-6), who conducted X-ray examination of the injured. Learned Magistrate was satisfied with the correctness of the prosecution story and sentenced the accused- appellant as above.
From the perusal of record it transpires that incident was taken place on 25.07.1897 at 11.00 a.m. and FIR was lodged on the same day at 5.00 p.m. alleging that all the revisionist have assaulted the son of complainant namely Chhitani, and case was registered under Section 147 and 323 IPC and after investigation the investigating officer has submitted charge sheet under Sections 147, and 325 IPC.
From the perusal of record it also transpires that on the body of injured namely Chhitani, as many as 13 injuries were found (Four lacerated wound, six swellings and three contusions). Fracture was found on the leg and hand of the injured. Metacarpal, radius and ulna bone was found fracture.
Injured was examined as P.W.-2 and in his statement he assigned general role of assaulting against all the accused persons and specifically stated that the first stick (lathi) was used by the accused Ram Saran and later on all the accused persons have assaulted him by stick (lathi), but he could not ascertained that who caused the grievous injuries and hit on his leg and hand.
From the perusal of record it further transpires that it is not clear that who is the author of the injuries caused in the hand and leg of the injured, which was found fracture, but it is very clear that all the accused persons have caused injuries to the injured and therefore, he received several injuries.
In the case of Jarnail Singh vs. State of Punjab, 2009(6) Supreme, 526 it was held that deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies for the reason that his presence on the scene stands established in the case and it is proved that he suffered the injuries during the said incident.
Further in the case of Maqsoodan vs. State of U.P., (1983) 1 SCC 218(three Judges Bench) it was held that presence of the injured witnesses at the time and place of the occurrence cannot be doubted as they had received injuries during the course of the incident and they should normally be not disbelieved.
Hence evidence of P.W.-2 Chhitani has value and this Court finds no material contradictions and discrepancies on which ground statement of P.W.-2 may be disbelieved.
On the point of conviction this Court founds that finding and conclusion given by the both courts below is according to evidence on record and both the court has given concurrent findings on facts, hence no interference is called for on the finding of facts on the point of conviction.
Learned counsel for the revisionist further submitted that three accused namely Ram Saran, Sheo Mohan and Gaya, revisionist nos. 1, 2 and 3 are died. The first stick was used at the time of assaulting the injured by accused Ram Saran and the Ram Saran was also died.
Out of five accused-persons only two accused persons namely Jhanda and Paragi are surviving at this time and they are aged about 62 years and 53 years, respectively. They are languishing in jail since 28.08.2018 at present time and at the time of incident and at the time disposal of appeal they have also been languishing in jail some time.
In these circumstances, when the specific role of assaulting the injured has not been assigned to these two accused namely Jhanda and Paragi, no fruitful purpose will be served to sentenced these two revisionists of two and half years rigorous imprisonment, as both the courts below have awarded. Incident is of year 1987 and thereafter 31 years have been elapsed. The revisionist nos. 4 and 5 are old and poor persons and they are languishing in jail at this age. They belongs to rural area and their social and economic status are also very poor. It is further submitted that revisionists are ready to deposit fine before trial Court/appellate Court, hence lenient view may be taken against revisionists and they may be sentenced to imprisonment already undergone with fine.
Learned AGA opposed the prayer but on this point he did not raise any argument that the case is very old and the revisionists are also old persons, hence a lenient view may be taken.
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.
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.
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."
Both the Courts have given concurrent finding of facts. Hence no interference is called for in the conviction of revisionist nos. 4 and 5, namely Jhanda and Paragi, who are still survive.
Considering the age, social & economic status of revisionists and family background, no fruitful purpose would be served to punish with imprisonment and purpose would be served if they are convicted and sentenced to imprisonment already undergone with fine of Rs.500/- each U/s 147 IPC and Rs.5,000/-. Each U/s 325/149 IPC.
The revision is partly allowed. Revisionist nos. 4 and 5, namely Jhanda and Paragi, who are convicted under Sections 147 and 325/149 IPC, sentenced to imprisonment already undergone with fine of Rs.500/- each U/s 147 IPC and sentenced to imprisonment already undergone with fine of Rs.5,000/- each U/s 325/149 IPC, and in default to deposit fine, they shall undergo additional simple imprisonment for six months each U/s 147 IPC and U/s 325/149 IPC respectively. Fine may be deposited within one months from today.
The Chief Judicial Magistrate, Banda is directed to ensure that the revisionist nos. 4 and 5, namely Jhanda and Paragi, shall be released on deposit of fine as directed above.
Copy of this judgment and order be transmitted to the Court concerned immediately for necessary compliance. Compliance report be submitted to this Court within three months, which shall be kept on record.
Order Date :- 27.10.2018/VKG