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2006 DIGILAW 2848 (ALL)

ADYA PRASAD v. STATE OF UTTAR PRADESH

2006-11-27

VINOD PRASAD

body2006
VINOD PRASAD, J. ( 1 ) ON 4. 4. 1985 at 12 in noon informant Ram Dular was sitting on his door along with his wife Munsia and brother hira Lal when the revisionist Adya Prasad (armed with Gadasa), Onkar and Ishwari prasad (both armed with lathis) reached there vetuparising them because of enmity and belaboured them as a result of which Munsia and Hori Lal sustained injuries. Intervention of Hari Hari, Ghanshyam, and many others in the said marpeet saved their lives. Injured munsia and Hori Lal were medically examined on the same day at 2. 30 and 2. 50 p. m. at p. H. C. , Aurai. Informant Ram Dular lodged a report at 6. 20 that day itself at the police station aurai District Bhadhoi under sections 323, 324 and 504, I. P. C. The ensued investigation culminated into filing of charge sheet against the revisionists accused on 10. 7. 1985 in Court on the basis of which, State v. Adya Prasad and others, was registered in the Court of chief Judicial Magistrate, Bhadhoi, Gyanpur. The revisionists accused were charged for committing offences under sections 323, 324 and 504, I. P. C. on 26. 10. 1991, which they denied and claimed to be tried. ( 2 ) DURING the trial prosecution examined hori Lal (injured) P. W. 1, Ram Dular (informant)P. W. 2, Hari Har (eye witness) P. W. 3, as witnesses of fact. Dr. A. Pandey P. W. 4 and lalji Pathak Head Constable P. W. 5 were examined as formal witnesses to prove the case against the accused. The accused in their statement under section 313, Cr. P. C. denied the incriminating circumstances appearing against them in the evidences and in their defence they examined Balu Ram as D. W. 1. ( 3 ) THE Trial Court after examining the evidence led in the trial and critically appreciating the same came to the conclusion that the prosecution has proved its case to the hilt and the offences against the accused has been proved and hence it convicted and sentenced the accused vide its judgment and order dated 6. 5. 1997. Accused Adya Prasad, revisionist no. 1 was covicted under section 324, I. P. C. and was sentenced to undergo 6 months R. 1. and to pay a fine of Rs. 500/ -. 5. 1997. Accused Adya Prasad, revisionist no. 1 was covicted under section 324, I. P. C. and was sentenced to undergo 6 months R. 1. and to pay a fine of Rs. 500/ -. Rest of the two accused Onkar and Ishwari Narain were convicted for offence under section 323, I. P. C. and were sentenced to undergo 3 months R. I. and to pay a fine of Rs. 500/- each. Trial Court also ordered that in default of payment of fine the accused will undergo further imprisonment of two months R. I. It also ordered that out of the fine so realized Rs. 1,000/- shall be granted as compensation to the injured persons and rest of the amount will be deposited in Government treasury. ( 4 ) AGGRIEVED by their conviction and sentences mentioned above the three accused preferred Criminal Appeal No. 46 of 1997 before the Sessions Judge, Gyanpur which was heard and decided by Additional Sessions judge, Court No. 3 Bhadhoi, Gyanpur, vide its impugned judgment and order dated 16. 11. 2006. The Lower Appellate Court dismissed the appeal filed by the accused and confirmed their convictions and sentences. Hence this revision by the three accused revisionists. ( 5 ) I have heard Sri A. N. Mishra, learned counsel for the revisionists in support of revision No. 6359 of 2006 and Sri R. N. Upadhyay and A. K. Upadhyay in Criminal revision No. 6408 of 2006 and Sri R. C. Maurya and D. B. Yadav learned Counsels for the respondent informant and the learned a. G. A. in opposition. ( 6 ) LEARNED Counsels for the revisionist could not point out any illegality in the two impugned judgments inked by the two Courts below and fairly concede that the findings of fact recorded by them are in accordance with law and cannot be criticized. They therefore did not harangued much on the conviction recorded by the two Courts. Learned Counsels however stressed the argument on the question of sentence and submitted that the incident had taken place more than two decades ago and to send the revisionists to jail at this belated stage will not yield any fruitful result and will not be of any use. They further contended that the substantive sentence of imprisonment be altered into fine. They further contended that the substantive sentence of imprisonment be altered into fine. They contended that the Trial court took twelve years to decide the trial (1985 to 1997) and the appeal filed by the revisionist in the 1997 took nine years to be judgmented (1997-2006) and therefore the revisionists had been harassed enough. They further contended that this was the first offence committed by the revisionists and that too because of Pattidari dispute and the revisionists are not criminals and hence they should not be sentenced to jail. They submitted that seeing the nature of injuries of the two injured persons also the jail term awarded to the revisionists be altered into fine. ( 7 ) A. G. A. as well as learned Counsel for me respondents did not challenge the contentions of the revisionists Counsel. ( 8 ) AFTER hearing the Counsels for both the sides it transpires that the Incident occurred more than two decades ago. The revisionist had been harassed for the said period. They contested the case since 1985 to 1997 in the trial Court and then in appeal from 1997 to 2006. This, in my view, is enough harassment. The fundamental right of speedy trial seems to have yielded to the loathsome burden of the Courts below. More over this was the first offence committed by the revisionists. They do not have any criminal history nor they have any criminal psychology. During this period of two decades there has been no complaint against them from any corner. The time being a great heeler have ointment the coarseness of animosity between the rival parties. The injuries sustained by the two injured persons also did not show any revengeful attack. One of them had sustained only a simple injury on head and the other had sustained three injuries of insignificant magnitudes one on face (A contusion)and two on right arm (a lacerated wound and an abrasion ). Further the revisionist had remained in jail for five days. The incident had started all of a sudden on a petty matter of keeping Arahar and was preceded by an altercation. In these facts to send to the revisionist to jail when the other side did not challenge the alteration of jail sentence will not be in the interest of justice. Penology is a science. The incident had started all of a sudden on a petty matter of keeping Arahar and was preceded by an altercation. In these facts to send to the revisionist to jail when the other side did not challenge the alteration of jail sentence will not be in the interest of justice. Penology is a science. Its too excessivoness diminishes its glitteriness and too leniency results in failure of its purpose. There has to be a balancing approach acceptable to the rival sides where no side feels that injustice is meted out to it. Viewed from such an angle, in my opinion, the interest of justice will be well sewed by altering the sentences of jail term of the revisionists to the period of jail term already undergone by them and to substitute rest of it with a fine of Rs. 11, 000/- on revisionist No. 1 adya Prasad and Rs. 1,000/- on revisionist no. 2 Onkar and Ishwari Prasad and also to direct Ishwari Prasad to pay a compensation of Rs. 5,000/- in all to the two injured persons. Out of the said amount of fine realized from adya Prasad and Onkar a compensation of rs. 5,000/- each awarded to the two injured persons and further from the compensation realized from Ishwari Prasad Rs. 2,500/- each as compensation awarded to the two injured persons will meet the ends of justice as the total amount of compensation to the two injured will be Rs. 7,500/ -. ( 9 ) CONSEQUENTLY, this revision is partly allowed. While the conviction of two revisionists are maintained but their sentences are altered to the period of jail term already undergone by them with a fine of Rs. 11,000/- on Adya prasad, revisionist and a fine of Rs. 1,000/-on Onkar and Ishwari Prasad revisionists. Moreover Ishwari Prasad is also directed to pay rs. 2,500/- each to the two injured as compensation. Out of the said amount of fine, realized from Adya Prasad and Onkar an amount of Rs. 5,000/- each is awarded as compensation to the two injured persons namely Smt. Munsia and Hori Lal. The revisionists are allowed two weeks time to deposit the said amount of fine and compensation from the day they are released from jail. Out of the said amount of fine, realized from Adya Prasad and Onkar an amount of Rs. 5,000/- each is awarded as compensation to the two injured persons namely Smt. Munsia and Hori Lal. The revisionists are allowed two weeks time to deposit the said amount of fine and compensation from the day they are released from jail. For the purposes of realising the amount of fine and compensation the C. J. M. concerned is directed to release the revisionists on bail on their furnishing a personal bond of Rs. Ten thousand each with two sureties each in the like amount to its satisfaction. In the event of failure by the revisionists to deposit the amount of fine and compensation as has been ordered herein above within allowed period they shall be arrested and send to jail to serve out the sentences awarded to them by the Lower appellate Court vide its impugned judgment dated 16. 11. 2006. Both the above revisions are partly allowed with aforesaid modification in sentences. Appeal allowed partly. .