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2017 DIGILAW 140 (ALL)

KAPIL DEO TIWARI v. STATE OF U. P.

2017-01-11

PRAMOD KUMAR SRIVASTAVA

body2017
JUDGMENT : Hon'ble Pramod Kumar Srivastava, J. 1. Heard learned counsel for the revisionists, learned AGA and perused the records. 2. The court of ACJM (II), Varanasi had passed judgment dated 9.9.1994 in criminal case no. 2456 of 1991 (State Vs. Kapil Deo Tiwari & others), by which four accused were acquitted from the charges under section 504, 506 IPC. But the accused Kapil Deo and Jaiprakash Tiwari were convicted for charges under section 325/34, 324 and 323/34 IPC. Accused Sita Ram and Jagat Narain were convicted for offence under section 325/34, 324/34 and 323/34 IPC. Each accused were convicted for charge relating to section 325 IPC with rigorous imprisonment of one year and fine of Rs. 100/-, for charge relating to section 324/34 IPC with rigorous imprisonment of one year and for charge relating to section 323 IPC with rigorous imprisonment of six months. 3. Against said judgment dated 9.9.1994 of trial court, the four convicted accused persons had preferred criminal appeal no. 91 of 1994 (Kapil Deo Tiwary & others Vs. State of U.P.). one Criminal Revision no. 99 of 1995 (Ramayan Tiwari Vs. State of U.P. & others) was preferred by complainant of the case. Appellants-accused prayed for quashing the conviction and sentence, whereas revisionist requested for enhancement of punishment and sentence. After affording opportunity of hearing in both the cases, common judgment dated 5.10.1998 was passed by 1st Additional Sessions Judge, Varanasi, by which the said appeal as well as revision were dismissed. Against the judgment of conviction by the two lower courts, present revision has been preferred by the four convicted accused persons of the original case. 4. Learned counsel for the revisionist had not placed argument on point of conviction, but made submissions only on point of modification of sentence. He pleaded mercy on behalf of revisionist and submitted that before or after the incident in question relating to this matter, no criminal or other wrongful act was committed by any of the accused and they had no other criminal history. He submitted that the age of four revisionist, namely Jagat Narain, Kapil Deo Tiwari, Sita Ram and Jaiprakash Tiwari are 71 years, 63 years, 56 years and 53 years respectively. He pointed out that incident relates to year 1988 and from that time till present, these accused are being harassed during investigation, prosecution, appeal and in present revision. He submitted that the age of four revisionist, namely Jagat Narain, Kapil Deo Tiwari, Sita Ram and Jaiprakash Tiwari are 71 years, 63 years, 56 years and 53 years respectively. He pointed out that incident relates to year 1988 and from that time till present, these accused are being harassed during investigation, prosecution, appeal and in present revision. He submitted that these persons are villagers whose profession is agriculture and have no criminal mentality; so they may be given benefit of probation or at least their punishment may be mitigated in fine. 5. From perusal of record, it is found that although trial court had afforded opportunity of hearing to accused persons on point of sentence, but at the time of passing order only considered the alleged acts relating to charges and not considered other circumstances and antecedent of these people. Such consideration is mandatory under section 248(2) CrPC. This point was also not properly considered in appeal. It is always appropriate that in interest of justice, that trial courts should consider all relevant factors, which may have effect on quantum of sentence. These points are being considered at this stage. 6. From perusal of record, it is found that judgment on point of conviction of four revisionists by trial court and lower appellate court is not erroneous, therefore it is confirmed, but quantum of their sentence need consideration. 7. As pointed out by learned counsel for the revisionists two of the revisionists-accused had attained age of senior citizenship and other are nearing it. They have no criminal antecedent and had involved in the incident in question because of election in the village. The incident in question had occurred during altercation due to heat of moment. Except the incident in question, they appear to have not committed any other criminal act. Considering these points and their involvement and harassment in legal proceedings for about 28 years, and also considering that after dismissal of appeal, they were taken into custody and were incarceration for some time, it appears appropriate that their punishment should be modified and mitigated. 8. On the basis of above discussion, this revision is partly allowed. The conviction of four revisionists-accused by trial court is confirmed, but the punishment of above mentioned each of the four accused-revisionists for charge under section 325/34 is modified to period of imprisonment already undergone and fine of Rs. 8. On the basis of above discussion, this revision is partly allowed. The conviction of four revisionists-accused by trial court is confirmed, but the punishment of above mentioned each of the four accused-revisionists for charge under section 325/34 is modified to period of imprisonment already undergone and fine of Rs. 10,000/-, the conviction of accused relating to charges under section 324/34 and 323 IPC is modified to period already undergone. In default of payment of fine, accused-revisionists will undergo imprisonment of four months. Revisionists are directed to appear before trial court immediately. 9. Half of the amount of fine realized from the accused-revisionists will be paid to victim of this case by trial court. 10. The copy of this order be communicated to trial court for ensuring compliance.