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2018 DIGILAW 1853 (RAJ)

Kalyan Sahai v. State of Rajasthan

2018-09-06

PANKAJ BHANDARI

body2018
JUDGMENT Pankaj Bhandari, J. - Appellants have preferred this revision petition aggrieved by judgment and order dated 31.05.1988, passed by Additional Sessions Judge No.1, Alwar, whereby the appellants-Kalyan Sahai and Rameshwar have been convicted for offence under Section 326/34 IPC and have been sentenced three years rigorous imprisonment and fine of Rs.1,000/-, in default of payment of fine to further suffer four months rigorous imprisonment. Appellant Kalyan Sahai has also been convicted for offence under Section 324 IPC and has been sentenced to two years rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months rigorous imprisonment. Appellant No.2-Rameshwar has also been convicted for offence under Section 324/34 IPC and has been sentenced two years rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months rigorous imprisonment. 2. In brief, the facts of the case are that on 24.03.1986, a report Ex.P-1 was lodged at police station, Laxmangarh, District Alwar that on 23.03.1986 when Prabhati, Pyarelal, Sukku and Bafati were in their field, appellants alongwith Situ Ram, Murari, Ramesh and Kaptan Singh attacked them. Appellant No.l Kalyan Sahai gave blow of farsi to Sukku, Chhaju and Prabhati, appellant No.2-Rameshwar also caused injuries. Police after due investigation submitted charge-sheet against five accused- persons. Charges were framed against appellants and other coaccused. Accused denied the charges and sought trial, upon which as many as thirteen witnesses were examined on behalf of the prosecution. Accused were examined under section 313 Cr.P.C., they did not produce any evidence in defence. Court after hearing arguments, acquitted Rohitash, Murari and Mahesh but convicted present appellants for offence herein above mentioned, however, appellants Kalyan Sahai and Rameshwar were sentenced for offence under Section 326 in place of Section 307 IPC, aggrieved by which the present appeal has been preferred. 3. It is contended by counsel for the appellants that the matter is of March, 1986, there is a delay of twenty four hours in lodging of F.I.R. A cross F.I.R. Ex.D-8 was filed by the accused-party. It is also contended that appellant-Kalyan Sahai was a Government Teacher and he has now retired and is aged 80 years, no purpose would be served I n now sending him to jail at this age. It is also contended that appellant-Kalyan Sahai was a Government Teacher and he has now retired and is aged 80 years, no purpose would be served I n now sending him to jail at this age. It is also contended that from the accused side, Rohitash and Rameshwar have received thirteen injuries and five injuries respectively, which are simple and blunt but are not explained by the prosecution. It is also contended that six persons were named in the F.I.R. Charge-sheet was filed against five persons, out of which three persons have been acquitted. It is not established that the injuries sustained by Chhaju, Prabhati and Sukku has been caused by farsi. It is also contended that farsi has not been recovered. 4. It is further contended that there was a dispute between the complainant and the accused-party with regard to some amount and appellants have been falsely implicated. It is contended that appellants have good reputation, appellant No.l retired as a Head Master of the School and after retirement is now leading a retired life. Appellant No.2 was a student at the relevant time and is now aged fifty six years. It is also contended that during the entire period, appellants have not committed any crime. 5. Learned Public Prosecutor has opposed the appeal. His contention is that initially appellants were charged for offence under Section 307 IPC but the Court has convicted the appellants under Section 326/34 IPC. 6. It is contended that the offence under Section 326 IPC is punishable for imprisonment for life or with imprisonment of either description for a term which may extend to ten years. It is also contended that prosecution has produced six witnesses, five of whom are the injured witnesses. Chhaju-PW-1 has sustained seven injuries out of which one injury is sharp which is assigned to Kalyan Sahai, PW-2 Prabhati has sustained seven injuries out of which two injuries are sharp which are also assigned to Kalyan Sahai, PW-3 Sukku has sustained five injuries out of which two injuries are sharp which are also assigned to Kalyan Sahai and PW-4 and PW-5 have sustained five injuries each and they are simple and blunt. 7. 7. It is also contended that since injuries have been caused by sharp weapon, Section 326 IPC get attracted and as Court has awarded a sentence of only three years rigorous imprisonment, no ground is made out in an appeal. 8. It is also contended that in the cross F.I.R. filed by the accused-party, police has submitted negative final report which goes to show that appellants were the assailants and they attacked the complainant-party. It is also contended that the trial Court has considered the entire evidence and material and no interference is called for. 9. I have considered the contentions and have perused the record and the impugned judgment. 10. PW-1 Chhaju, PW-2 Prabhati, PW-3 Sukku and PW-4 Pyarelal are the injured witnesses who have specifically deposed against PW-5 Babli @ Babulal. PW-6 is an independent witness who has narrated the incident. PW-7 Laxman is also an independent witness who has also narrated the incident. PW-10 Dr. M.K. Singhal, Radiologist has deposed that Chhaju has received fracture on his right scapula bone. Prabhati had a linear fracture on her right fronto parietal region. PW-13 Dr.B.L. Sethi who had examined Chhaju, Sukku, Prabhati and Pyarelal has given evidence with regard to the injuries sustained by the injured. 11. The evidence of the injured persons is corroborated by the injuries sustained by the injured. PW-10 Dr. M.K. Singhal has also deposed that the injuries caused to the accused-persons have been caused by sharp weapon. Injuries caused to Prabhati as per Ex.P-15 was found to be dangerous to life. 12. Contention of counsel for the appellants that there is cross F.I.R. and the injured had come to their farm cannot be accepted as in the F.I.R. lodged by them, police has submitted negative final report. 13. As far as delay in lodging of F.I.R. is concerned, PW-1 Chhaju has given explanation for the delay. He has mentioned that villagers took them to Laxmangarh hospital but the hospital was closed, they were shifted to Kathumar, thereafter the report was lodged. 14. There is ample evidence on record to arrive at the conclusion that appellants have committed the offence for which they have been sentenced. The specific evidence against the appellants and the injuries sustained by the injured is corroborate by medical evidence, hence the impugned judgment does not call for any interference. 15. 14. There is ample evidence on record to arrive at the conclusion that appellants have committed the offence for which they have been sentenced. The specific evidence against the appellants and the injuries sustained by the injured is corroborate by medical evidence, hence the impugned judgment does not call for any interference. 15. As far as reducing of sentence is concerned, the Apex Court in para 16 of "State of M.P. vs. Babulal and Ors." (2013) 12 SCC 308 , has observed as under:- "In view of the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing misplaced sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The Punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing." 16. It is true that the matter is of the year, 1986 and the present appeal is pending since 1988 and appellant No.1 is already aged eighty years and has not committed any crime during the intervening period but the fact that the offence is punishable for imprisonment for life and Court below has already given a lesser sentence of three years only also considering the judgment of the Apex Court "State of M.P. vs. Babulal and Ors." (supra), I do not deem it proper to reduce the sentence. 17. In view of the above, the criminal appeal is, accordingly, dismissed and Judgment and order dated 31.05.1998 passed by the trial Court is affirmed. 18. Record of the Court below be returned forthwith. 19. Appellants are on bail, their bail bonds are cancelled. Trial Court is directed to take the appellants in custody and send them to jail to serve the remaining part of sentence.