Court No. - 78
Case :- CRIMINAL APPEAL No. - 3066 of 1982
Appellant :- Rama Shanker Alias Rama And Others
Respondent :- State
Counsel for Appellant :- S.P.Singh,Anil Kumar Shukla,H.K.Mishra,Rajeev Shukla
Counsel for Respondent :- A.G.A.
Hon'ble Ajit Singh,J.
Heard learned Counsel for the appellants and learned AGA for the State.
This criminal appeal has been filed by the appellants against the judgment and order dated 23.11.1982 passed by Additional Sessions Judge, Mirzapur in Session Trial No. 185 of 1981 convicting and sentencing the appellants under Section 399/402 I.P.C. for a terms of three years R.I. in each sections.
The case of the prosecution is that on 9.8.1981 at 9:10 am information was received at police station Robertsganj through a Mukhbir that some armed dacoits would assemble in village Udhaita in that night making preparations for committing dacoity in the house of Janardan Pandey and on getting that information, Inspector Pashupati Nath Pandey of Police station Robertsganj collected armed police force and left the police station in the same night at 09:25 p.m. along with armed police force and reached police outpost Shahganj at about 11 p.m. and there the public witnesses Ram Bihari, Amarnath Mishra and others were collected and Constables Bashishtha Narain Singh and Shitla Nand Yadav were sent to the house of Janaradan Pandey in village Udhaita for its protection. Thereafter the police party and the public witnesses went to Shahganj Govt. hospital and there the Inspector divided all the persons in three parties; first party under his leadership, the second party under the leadership of S.I. Kalpnath Rai and the third party under the leadership of S.I. Ram Lakhan Singh and some police men and some public men were kept in each party and the Inspector gave them instructions to the effect that they will all sit silently and would not smoke biris or cigarettes and on his challenge and firing of V.L.A., they would all rush towards the dacoits to arrest them and then the men of the three parties took their respective positions. At about 12:30 O'clock in the night, on the spot in village Udhaita, police station Robertsganj, district Mirzapur six or seven dacoits came one by one and collected beneath tamarind tree and started talking with each other that they would get good money at the house of Janardan Pandey and at about 1:30 a.m. one dacoit came from Western side and seeing him, the other dacotis started saying that the Mukhbir had informed so they should go and commit dacotiy and saying that they got up to move and then Inspector Pandey, believing them to be the gang of the dacotis about whom the information had been received from the Mukhbir, intervened and asked, S.I. Om Prakash Singh to fire V.L.P. and the fire of V.L.P. gave sufficient light and the dacotis started running towards west and then the men of the three parties rushed towards the dacoits and arrested three of them and the remaining including Lootan @ Lutaun and Brijbhan accused ran away.
Learned counsel for the appellants submits that all the accused- appellants at present are aged about more than 70 years and they were convicted in the year 1982. They have already undergone more than one year in imprisonment during trial and after their conviction. They are suffering from various old age ailments. Learned counsel for the appellants submits that he does not want to press the appeal on merit and prays that the Hon'ble Court be pleased to take a lenient view in the matter as all the accused-appellants are about more than 70 years old and at this fag end of life, it would not be appropriate to send to them to jail. He next submitted that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and their age related ailments.
Learned A.G.A. on the other hand has opposed the argument of learned counsel for the appellant and submitted that the conviction of the appellant is fully justified and no interference is required in his conviction, hence the appeal be dismissed and accused be directed to suffer the sentence.
After considering the evidence on record and considering that the learned counsel for the accused has not pressed their appeal on merits, this Court dismisses the appeal on merits and considers appropriate quantum of sentence to be awarded to the appellants.
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 rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1981, about 40 years ago and now appellant are more than 70 years of age, at this stage, this Court feels that it would not be proper to sent the accused-appellant to jail at the fag end of their life and the accused were on bail since 09.12.1982 and the accused-appellants have suffered the agony of conviction for more than 40 years and no criminal antecedents have been shown to their credit after passing of so much long period out of jail, at this stage it does not appear appropriate to send the accused-appellants to jail now to serve the remaining sentence. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be enhanced.
Considering all the facts and circumstances of the case, the accused-appellants are sentenced to the period already undergone by them in jail during trial and an amount of fine of Rs. 1000/- each be imposed instead of sending them to jail.
Accused-appellants are directed to deposit the fine of Rs. 1000/- each before learned lower court within four months from the date of passing of the judgement in default of payment of fine accused-appellant shall further undergo 15 days imprisonment.
Appeal is partly allowed in the above terms.
Copy of this order be transmitted to the concerned lower court forthwith for compliance.
Order Date :- 20.9.2021 Shiraz