Court No. - 50
Case :- CRIMINAL APPEAL No. - 1126 of 2014 Appellant :- Trilok Respondent :- State Of U.P.
Counsel for Appellant :- Kamal Kishor Mishra,Manoj Srivastava,Rajesh Sharma Counsel for Respondent :- Govt. Advocate
Hon'ble Aniruddha Singh,J.
1- Heard Sri Rajesh Sharma, learned counsel for the appellant, Sri D.N. Tiwari, learned A.G.A. for the State and perused the record.
2- This criminal appeal has been preferred by the appellant- Trilok against the judgment and order dated 17.2.2014 passed by the learned Additional Sessions Judge, Court No. 12, Gorakhpur in S.T. No. 31 of 2007, arising out of Case Crime No. 20 of 2005, under Sections 308, 323, 504 and 506 I.P.C., Police Station Chaurichaura, District Gorakhpur whereby the appellant-Triloki was convicted and sentenced under Section 308 I.P.C. for seven years rigorous imprisonment with fine of Rs.5,000/- and in case of default of payment of fine, he was directed to undergo further three months additional imprisonment and under Section 323 I.P.C. for one year rigorous imprisonment with fine of 1,000/- and in case of default of payment of fine, he was directed to undergo further one month additional imprisonment. Both the sentences shall run concurrently and the amount of fine if deposited by the appellant, Rs. 3,000/- (three thousand) shall be paid to the injured.
3- In nutshell, according to prosecution case, one N.C.R. was lodged against the appellant under Sections 323, 504 and 506 I.P.C. on the basis of an application under Section 155 (2) of Cr.P.C. and an order was passed for investigation of the case by the Chief Judicial Magistrate, Gorakhpur vide dated 14.10.2005 alleging therein that on 10.10.2005 at 11:00 a.m. Trilok, who was the tenant of another house situated besides the informant house, had assaulted Lilawati by iron rod and abused her and Shambhoo Lal and Nand Kishore @ Raj Kishore had caught hold of Lilawati. She received eleven injuries. Injuries no. 1 to 10 are lacerated wounds caused on head and injury no. 11 is abraded contused swelling, out of which injury no. 1 was grievous in nature due to which fracture was found.
4- A case was registered. After investigation, charge-sheet was submitted against Trilok, Shambhoo Lal and Nand Kishore @ Raj Kishore under Sections 308, 323, 504 and 506 I.P.C. and charges were framed to which they pleaded not guilty and claimed to be tried.
5- In support of his case, the prosecution examined eight witnesses, namely, P.W.1-Lilawati-injurerd, P.W.2- Constable Rajendra Yadav, P.W.3 -Rajesh-informant, P.W.4 -Bebi @ Babita-daughter of the complainant, P.W.5 -Dr. T.N. Jha, P.W.6- Dr. U.N. Shahi-Radiologist, P.W. 7-Rajesh Kumar Yadav and P.W.8- S.I. Ajay Kumar Singh and they proved the relevant documents relating to this crime.
6- Statement of the accused/appellants were recorded under Section 313 Cr.P.C. They stated that they have been falsely implicated in this case.
7- After hearing learned counsel for the appellants as well as District Government Counsel (Criminal), impugned judgment and order dated 17.2.2014 was passed by the learned Additional Sessions Judge, Court No. 12, Gorakhpur convicting the apellant-Trilok and acquitting the other accused/appellants.
8- Learned counsel for the appellant submitted that the impugned judgment is against law and fact. Sentences awarded by the court below are excessive and harsh. No offence under Sections 308 I.P.C. is made out against the appellant. The appellant has already served out the sentence about eighteen months. The appellant belongs to the rural area; he is very poor person; there is no criminal antecedent/criminal history against the appellant; the appellant is a labourer and reformative theory is prevailed in India, hence ends of justice would be served if the appellant is sentenced to the period already undergone and fine only.
9- Learned counsel for the appellant further submitted that F.I.R. was lodged against three persons only on the basis of the fact that first assault was committed by the appellant-Trilok and other accused/appellants were assigned the role of caught hold. Therefore, the appellant-Trilok was convicted and other co- accused was acquitted by the court below.
10- It is pertinent to mention here that no State appeal has been preferred against Shambhoo Lal and Nand Kishore @ Raj Kishore, who have been acquitted by the court below and in this situation, it will not be proper to give any finding about the role of co-accused-Shambhoo Lal and Nand Kishore @ Raj Kishore.
11- Learned counsel for the appellant further submitted that all the witnesses of fact have clearly stated that all accused had assaulted the injured and due to general role of causing injury to injured was assigned to all accused/appellants, it is not clear who is the author of injury no. 1 by which the fracture was found on head of the injured, hence the appellant is also liable to be convicted under under Section 308 read with Section 34 I.P.C. The appellant-Trilok was wrongly convicted under Section 308 I.P.C. Maximum offence under Section 323 I.P.C. was made out against the appellant, is one year R.I. with fine of Rs.1,000/-which has already been served out by the appellant and maximum sentence under Section 325/34 I.P.C. is made out.
12- Learned counsel for the appellant further submitted that for offence under Section 308 I.P.C. three years punishment is provided, or with fine, or with both, and, if hurt is caused to any person by such act shall be punished with imprisonment of either description for a term which may be extended to seven years, or with fine, or with both. This is the first offence against the appellant. There is no criminal history against the appellant. Therefore, he may be sentenced to the period already undergone by taking a lenient view on this issue.
13- On the point of conviction, the statement of the injured is very material and on this issue, the Hon'ble Supreme Court in the case of injured witness has observed as under:
"In the case of Jarnail Sing vs. State of Punjab, 2009 (6) Supreme 526, the Court has 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 of incident established in the case and it is proved that he suffered the injuries during the said incident.
In the case of Maqsoodan vs. State of U.P., (1983) 1 SCC 218, the Apex Court has 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 incident and they should normally be not disbelieved"
14- From perusal of the X-ray report, it is very clear that fracture was found on the head of injured, hence on the point of conviction, this Court finds no merit and the appeal is liable to be dismissed and the conviction of the appellant Trilok under Section 323 & 308 I.P.C. is confirmed.
15- On the other hand, learned A.G.A. has supported the impugned order and contended that the impugned order is just and legal and there is no illegality or infirmity in the order and the present appeal is liable to be dismissed.
16. On the point of sentence, learned counsel for the appellant submitted that the appellant has already served out the sentence for more than half years, ends of justice would be served if the appellant is sentence to the period already undergone with fine only.
17. Learned A.G.A. opposed the prayer but on this point he did not raise any objection and submitted that a lenient view may be taken.
18. 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.
18. 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.
19. 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.
20. 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.
21. Considering the circumstances of the case and looking to the facts that appellant belongs to rural areas and social and economic status of the appellant, This Court finds that end of justice would be served if the appellant is punished for the period already undergone with fine only.
23. In above backdrop, the appeal is partly allowed. The impugned judgment and order dated 17.2.2014 passed by the learned Additional Sessions Judge, Court No. 12, Gorakhpur is set aside and the appellant is sentenced to the period already undergone under Section 308 I.P.C. with fine of Rs.10,000/- (ten thousand). In case of default of payment of fine, he shall further undergo six months simple imprisonment. The sentence of the appellant under Section 323 I.P.C is confirmed to which the appellant has already served out the sentence awarded by the court below. The appellant shall be released forthwith if he is not wanted in any other case.
24. The appellant is directed to deposit the fine of Rs.10,000/- (ten thousand) within a period of two months from today.
25. Office is directed to send the copy of this order along with lower court record to the court concerned immediately for necessary compliance. Compliance report shall be submitted within three months, which shall be kept on record.
Order Date :- 22.1.2019 OP