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2010 DIGILAW 1132 (ALL)

Sri Motilal and Another v. State of U. P.

2010-04-06

SHRI KANT TRIPATHI

body2010
Shri Kant Tripathi, J.; - 1. Heard Sri Vindyachal Singh learned Amicus Curie for the appellant no. 2 Mahavir, the learned AGA for the State and also perused the record. 2. The appellants Moti Lal and Mahavir have preferred this appeal against the common judgement and order dated 01.02.1982 passed by the VII Additional Sessions Judge, Agra in Sessions Trial No. 52 of 1980 (State v Moti Lal & another) whereby the learned Additional Sessions Judge has convicted the appellants under section 308 IPC sentencing each of them to undergo four years rigorous imprisonment. 3. It may be mentioned that the appellant no. 1, Moti Lal has died during the pendency of this appeal and the appeal is abated against him. Consequently, the present appeal has been pressed for the appellant no. 2, Mahavir. 4. According to the prosecution story, on 05.10.1978 at about 12.30 P.M. when the informant, Dinesh Kumar, was supervising construction of boundary wall on his plot no. 13/208, Budhan Saiyad in front of Takroo Agency and at that time his cousin Govind Saran S/o Radhey Shyam Sharma was also present there. The appellant no. 1, Moti Lal, accompanied by two unknown persons came there and restrained Dinesh Kumar from constructing the boundary wall and claimed the aforesaid piece of land as their own land. The informant Dinesh Kumar demanded a proof from the appellant no. 1, Moti Lal about the ownership. The demand enraged appellant no. 1, Moti Lal, who attacked Dinesh Kumar with knife but fortunately he escaped unhurt. Then appellant no. 1, Moti Lal inflicted several knife blows to Govind Sharma, who sustained several incised wounds. The informant Dinesh Kumar raised hue and cry, attracted by which the witnesses Kedar Chaudhary, Rajendra Kumar and Ram Kumar arrived there and saved the injured Govind Sharma from the clutches of the appellants, otherwise he would have been killed. Injured Govind Sharma was taken to S.N. Hospital, Agra by Dinesh Kumar, where he was medically examined and admitted for his treatment. After getting the injured Govind Sharma admitted in the Hospital, the informant Dinesh Kumar rushed to the Police Station Hari Parvat and submitted the written report, Exhibit Ka.1 to the Station Officer. On the basis of this report FIR, exhibit Ka-2 was drawn at 3.40 P.M. and a case under sections 325 and 324 IPC was registered against the appellant. After getting the injured Govind Sharma admitted in the Hospital, the informant Dinesh Kumar rushed to the Police Station Hari Parvat and submitted the written report, Exhibit Ka.1 to the Station Officer. On the basis of this report FIR, exhibit Ka-2 was drawn at 3.40 P.M. and a case under sections 325 and 324 IPC was registered against the appellant. The investigation of this case was entrusted to S.I. S.N. Singh, who on receiving the injury report on 6.10.1978, converted the crime from section 324 IPC to section 308 IPC and made a relevant entry in this respect in G.D. at 7.20 A.M. On 6.10.1978 itself, the Investigating Officer, after the case was registered, examined Dinesh Kumar, prepared site plan Exhibit Ka-3 and thereafter examined Govind Sharma in the Hospital. He arrested the appellants Moti Lal and Mahavir on the same day at 10.45 P.M. and soon after the arrest of the appellant no. 2, Mahavir, he made him Baparda and was brought to the Police Station and there also he was kept Baparda. In an identification parade held on 28.10.1978, the appellant no. 2, Mahavir was identified as one of the co-assailants of this case by the informant Dinesh Kumar and the injured Govind Sharma. After investigation, charge sheet Exhibit Ka-4 was submitted. 5. The appellant pleaded not guilty and claimed to be tried. 6. The prosecution has examined as many as twelve witnesses. 7. The appellants examined two witnesses in defence; D.W. 1, Dr. S.P. Mishra, proved the injuries sustained by the appellant no. 2, Mahavir and his injury report exhibit Kha-1 and D.W.-2. Chhotey Lal, stated that on the date of the occurrence about 20 persons entered into the house of the appellant no. 1, Moti Lal and started throwing out his luggage and one of them gave a knife blow to appellant no. 2, Mahavir and the appellant no. 2 in exercise of self defence gave few rampi blows to the injured Govind Sharma. 8. The learned counsel for the appellants submitted that the main assailant Moti Lal (appellant no. 1) has died. The role assigned to the appellant no. 2 Mahavir is of catching hold. Moreover, the appellant no. 2 Mahavir had also sustained injuries during the incident. None of the injuries sustained by the injured Govind Sharma was dangerous to life rather they were simple in nature. 1) has died. The role assigned to the appellant no. 2 Mahavir is of catching hold. Moreover, the appellant no. 2 Mahavir had also sustained injuries during the incident. None of the injuries sustained by the injured Govind Sharma was dangerous to life rather they were simple in nature. It was also submitted that from the facts and circumstances only the offence under section 324 IPC was made out and the learned trial court has committed error of law in holding that the charge under section 308 IPC was proved. Virtually, no offence under section 308 IPC was made out. 9. Learned counsel for the appellants, however, conceded that the finding of guilt recorded by the trial court is correct and requires no interference but vehemently pressed that from the proved facts only the offence under section 324 read with 34 IPC is made out against the appellant no. 2. 10. Keeping in view the facts and circumstances of the case, it appears to be a case of simple maar-peet without any intention or knowledge to cause such injuries to the injured Govind Sharma which could be said to be fatal to cause his death. The appellant no. 2, Mahavir had also sustained injuries. Moreover, the injuries of Govind Sharma were simple in nature and not dangerous to life. 11. In view of the facts and circumstances discussed herein before, I am of the view that the offence under section 308 IPC is not made out. The appellant no. 2, who had played merely a role of catching hold and the main assailant was the appellant no. 1, Moti Lal is guilty of the charge under section 324/34 IPC only. 12. In regard to the quantum of sentence, it may be stated that the occurrence is of the year 1978 and since then more than 32 years have elapsed and as such it is not proper to record the sentence of imprisonment on appellant no. 2. The ends of justice would be met if the appellant no. 2, Mahavir is sentenced to pay fine only. 13. Accordingly, the appeal is partly allowed. The conviction and sentence recorded by the learned trial court under section 308 IPC against the appellant no. 2 Mahavir, are set aside. He is convicted and sentenced under section 324 read with section 34 IPC to pay a fine of Rs. 2, Mahavir is sentenced to pay fine only. 13. Accordingly, the appeal is partly allowed. The conviction and sentence recorded by the learned trial court under section 308 IPC against the appellant no. 2 Mahavir, are set aside. He is convicted and sentenced under section 324 read with section 34 IPC to pay a fine of Rs. 10, 000/- and in default of payment of fine, to undergo rigorous imprisonment of six months. The amount of fine shall be paid within three months from today. After the recovery of fine, an amount of Rs. 5, 000/- shall be paid to the injured Govind Sharma as compensation. 14. Let a certified copy of this order along with the lower court record be transmitted to the Sessions Judge, Agra for compliance. 15. A sum of Rs. 7000/- (Rs. Seven Thousand only) shall be paid as fee to Sri Vindyachal Singh, the learned Amicus Curie from the State Exchequer.