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2018 DIGILAW 2131 (ALL)

Anwar Ali v. State of U. P.

2018-10-05

SANJAY HARKAULI

body2018
JUDGMENT : SANJAY HARKAULI, J. 1. This criminal appeal has been filed by the accused-appellants Anwar Ali alias Anwar, Mahfooz alias Mahfooz Ali and Riaz Ahmad alias Riaz. The said three accused were convicted in Sessions Trial No.554 of 1998 vide judgment and order dated 03.04.2003 under Section 304 (II) read with Section 34 I.P.C. and Section 323 read with Section 34 I.P.C. For conviction under Section 304(II) read with Section 34 I.P.C., the accused-appellants have been directed to undergo rigorous imprisonment for a term of four years and under Section 323 read with Section 34 I.P.C. to undergo a sentence of three months each. 2. Aggrieved by the aforesaid judgment and order, the present criminal appeal has been filed. 3. Learned counsel for the appellants, learned A.G.A. for the State and learned counsel appearing for the complainant have been heard and record has been perused. 4. Briefly stated, the prosecution case is that the complainant side had planted gram crop in their field. On 23.02.1997, when the complainant Nihal Ahmad went to the said field along with his father Rahmat Ali and brother Riyaz Ahmad, they found that the accused along with accused Munaf (who died during pendency of trial) were plucking the crop. The complainant party tried to restrain the accused persons. In turn, the accused persons assaulted the complainant side with lathi, danda and kanta (a sharp edged weapon affixed to a wooden stick). Three persons on the complainant side received injuries. Rahmat Ali, the father of the complainant, being seriously injured, was immediately sent to Balrampur Hospital for treatment while the complainant and his brother went to the police station and lodged the first information report at 6:15 p.m. These two were also referred to the hospital for medical examination. Rahmat Ali while on the way to the hospital died as a consequence of injuries received by him and a postmortem was conducted on 24.02.1997. 5. After investigation, charge sheet was filed against the accused persons. Learned court below framed charges under Sections 302/34 and 307/34 I.P.C. The accused denied charges and claimed to be tried. 6. The prosecution, in support of its contention, examined Nihal Ahmad as PW-1, Riyaz Ahmad as PW-2 as being injured persons. Sharif Ahmad was examined as an independent witness of fact as PW-3. Dr. I.S.N. Karla PW-4 and Dr. Learned court below framed charges under Sections 302/34 and 307/34 I.P.C. The accused denied charges and claimed to be tried. 6. The prosecution, in support of its contention, examined Nihal Ahmad as PW-1, Riyaz Ahmad as PW-2 as being injured persons. Sharif Ahmad was examined as an independent witness of fact as PW-3. Dr. I.S.N. Karla PW-4 and Dr. R.S. Topwal PW-5 are the doctors, who had conducted the postmortem and medical examination. S.I. D.S. Bisen was examined as PW-6. Head Moharrir was examined as PW-7 while S.I. Dhannu Yadav PW-8, Naseem Ahmad PW-9 and Ishpal Singh PW-10 have been recorded as formal witnesses. The first information report has been exhibited as Exhibit Ka-1. The injury reports of the two injured are Exhibit Ka-2, Exhibit Ka-3 and Exhibit Ka-4. Exhibit Ka-5 is the postmortem report, Exhibit Ka-6 is the charge sheet, Exhibit Ka-7 is Chik F.I.R., Exhibit Ka-8 is copy of G.D., Exhibit Ka-8A is site plan, Exhibit Ka-9 and Exhibit Ka-10 are fard, Exhibit Ka-11 is panchnama, Exhibit Ka-12 is photo nash and Exhibit Ka-13 is the police report. 7. The statements of accused persons were recorded under Section 313 Cr.P.C. In these statements, the accused are said to have acted in self defence while the aggressors were the complainant party. 8. Riaz Ahmad alias Riaz has denied having participated in the act. Accused Anwar Ali alias Anwar while on the one hand states that he had tried to stop the complainant party from plucking the crop and when he along with other co-accused were being beaten, Munaf used lathi in their defence and thereafter, he takes a stand of not being present at the spot. 9. Learned court below examined the evidence on record thoroughly. It also took notice of the fact that a cross F.I.R. was lodged by the accused side at 5:10 p.m. on the same day on which, the F.I.R. by the complainant was lodged at 6:15 p.m. It also took notice of the fact that two accused persons were also injured and their injuries were proved by the medical examination report, which included two head injuries on one accused being lacerated wound. Learned court below also noticed that there was a civil dispute between the parties regarding the land in question and that the complainant side when examined as witnesses, admitted that the case was won by the accused side in the revenue court. Learned court below also noticed that there was a civil dispute between the parties regarding the land in question and that the complainant side when examined as witnesses, admitted that the case was won by the accused side in the revenue court. 10. Learned court below after thorough discussion of the evidence on record came to the conclusion that it was a case of free fight, but even if it was a case of private defence on the part of the accused persons, they have exceeded this right by causing injuries to the father of the complainant, as a result of which, he succumbed to death on the very same day as also injuries to other two accused persons and that no explanation at all was given in respect of these injuries by the complainant side. 11. Learned court below after a thorough discussion, has found that utmost that can be said is that the injury, which was caused to the deceased, was caused with the knowledge that the accused are likely by such act to cause death as defined under Section 299 I.P.C. and, therefore, the case would fall under Section 304(II) I.P.C. and not under Section 302 or 307 I.P.C. 12. Learned court below accordingly convicted the accused appellants under Section 304(II) read with Section 34 I.P.C. and Section 323 read with Section 34 I.P.C. and awarded the punishment of four years and three months to each of the accused respectively for the aforesaid offences. 13. While arguments were being advanced, learned counsel for the appellants Sri Rishad Murtaza, Advocate, fairly conceded that the evidence brought on record clearly leads to the conclusion that a crime under Sections 304(II) and 323 I.P.C. having been committed beyond reasonable doubt. He also concedes that he does not want to challenge the impugned judgment on the ground of conviction and confines himself to the quantum of sentence awarded under the sections in which the accused have been convicted. 14. In view of the aforesaid, the conviction of the accused appellants under Section 304(II) read with Section 34 I.P.C. and Section 323 read with Section 34 I.P.C. is hereby maintained and judgment of the learned court below is accordingly affirmed to this extent. 15. 14. In view of the aforesaid, the conviction of the accused appellants under Section 304(II) read with Section 34 I.P.C. and Section 323 read with Section 34 I.P.C. is hereby maintained and judgment of the learned court below is accordingly affirmed to this extent. 15. Learned counsel for the appellants has argued that on 03.01.2003 when the statement of accused under Section 313 Cr.P.C. was recorded, accused Mahfooz alias Mahfooz Ali was aged 50 years and accused Anwar Ali alias Anwar was aged 55 years. Accordingly, he states that accused Mahfooz alias Mahfooz Ali as on date would be of 65 years of age while accused Anwar Ali alias Anwar would be 70 years of age. 16. Learned counsel for the appellants has argued that learned court below has held this to be a case of free fight without any intention to cause death on the part of the accused persons. He has also submitted that the accused persons have no previous criminal history. He states that this is a case of sudden fight without any premeditation and considering the injuries sustained by the accused persons, they cannot be said to have acted in a cruel, diabolic, brutal, depraved and gruesome manner. He also states that the victims have also caused lacerated wound on the head of one of the accused and, therefore, it cannot be said that victims were defenceless. He also states that since there was a long standing dispute regarding the land in question, in respect of which, civil litigation was going on, which according to admission of PW-1, was subsequently also won by the accused side and, therefore, the complainant side interfered in legal possession of the accused therein, hence, the act of the accused cannot be said to be unprovoked. 17. With the aforesaid argument, learned counsel for the appellants has sought a lesser punishment for the offence under which, the accused have been convicted. 18. As against this, learned A.G.A. for the State assisted by the learned counsel for the complainant, has at length read the statements of three witnesses of fact to show that serious injuries have been inflicted on the complainant side and accordingly, the accused have acted in a cruel manner and, therefore, the punishment awarded to them does not deserve to be made lesser in quantum. 19. I have carefully perused the materials available on record. 20. 19. I have carefully perused the materials available on record. 20. The discretion in the matter of sentence is to be exercised by a Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. In this regard certain guidelines have also been laid down by the Hon’ble Apex Court in the cases of Jagmohan Singh vs. The State of U.P. (1973) 1 SCC 20 , Bachan Singh vs. State of Punjab (1980) 2 SCC 684 , Sangeet and another vs. State of Haryana (2013) 2 SCC 452 and Shankar Kisanrao Khade vs. State of Maharashtra (2013) 5 SCC 546 . 21. The aforesaid case laws are watersheds in the search for jurisprudential principles in the matter of sentencing. The said decisions though rendered in the context of exercise of the power to award the death sentence, but the principles laid down thereunder with suitable adaptation and modification, can very well be treated to apply to all lesser situations so long the court is confronted with the vexed problem of unraveling the parameters for exercise of the sentencing power. 22. Hon’ble the Apex Court has also observed in one of the aforesaid cases that in fixing the degree of punishment, the court should not confine its consideration merely to the circumstances connected with the particular crime, but should also give due consideration to the circumstances of the criminal. Accordingly, if the accused has no previous criminal record and would not be likely to be a menace or threat or danger to society or the community and the crime is not premeditated and further the accused has not acted in a cruel, diabolic, brutal, depraved and gruesome manner, these factors are also to be taken note of. 23. It cannot also be ignored that the accused side was also made to suffer lacerated wound on the head area and, therefore, it cannot be said that the victims were defenceless. It has also not been said that the accused persons had come armed from before with a premeditated mind to cause serious injuries to the complainant side. As against this, it has been admitted by one of the prosecution witnesses that lathi, danda and kanta were picked up by the accused from nearby. 24. Bearing the aforesaid considerations in mind, when Section 304(II) I.P.C. is perused, it is seen that maximum sentence provided therein is ten years along with fine. As against this, it has been admitted by one of the prosecution witnesses that lathi, danda and kanta were picked up by the accused from nearby. 24. Bearing the aforesaid considerations in mind, when Section 304(II) I.P.C. is perused, it is seen that maximum sentence provided therein is ten years along with fine. Similarly, the maximum punishment provided under Section 323 I.P.C. is one year along with fine upto Rs.1000/-. 25. No fine has been imposed by the learned court below while awarding the sentence. Similarly, under Section 304(II) I.P.C., in place of maximum sentence of ten years with fine, a term of rigorous imprisonment for four years only has been awarded, while under Section 323 I.P.C., the sentence awarded is three months. 26. Where death of father of the complainant has been caused on account of blows by lathi and danda, sentence of less than four years would not be proportionate in any way to the crime and in turn, any lesser punishment than the punishment awarded may lead to cause shock to the judicial conscience of the society at large. 27. All the three accused persons were not of such tender age at the time of occurrence so as not to understand the consequences of their action. 28. Considering the totality of the circumstances present, I find that no scope for interference in the sentences awarded exists and that the punishment awarded by the learned court below under the relevant provisions of the Indian Penal Code is totally in correct proportion to the crime committed. 29. There is accordingly no merit in this appeal and the same is liable to be dismissed. 30. This criminal appeal is hereby dismissed. 31. Let this order be communicated to the learned court below for carrying out the sentence awarded to the accused. The accused are directed to surrender before the learned court below within one month from the date of the judgment to undergo the sentence awarded to them. In case the accused do not so appear, the learned court below shall ensure that they are duly apprehended and made to undergo the sentence awarded to them. 32. Let the summoned file of the learned court below be transmitted back to the learned court below forthwith.