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2018 DIGILAW 405 (ALL)

BALLA v. STATE OF U. P.

2018-02-15

ARVIND KUMAR MISHRA I

body2018
JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. Heard Sri R.L. Verma, learned counsel appearing for the sole surviving appellant, namely, Tilak Ram and learned AGA for the State and perused the record. 2. Vide letter dated 17th January, 2018, it has been intimated that appellant no.1 Balla expired 20 years back. Therefore, this appeal qua appellant no.1 Balla stands abated. This appeal is now confined to the sole surviving appellant no.2 Tilak Ram. 3. The present appeal has been preferred against judgment and order of conviction dated 05.12.1986 passed by II Additional Sessions Judge, Shahjananpur in S.T. No.305 of 1986 arising out of Case Crime No.45 of 1985, under Section 307/34 IPC, Police Station- Sehramau North, District-Shahjahanpur, whereby the appellant-Tilk Ram was convicted under Section 307/34 IPC and was sentenced to five years R.I. 4. Learned counsel for the appellant has urged that the appellant has no objection in so far as conviction of the appellant under Section 307/34 IPC is concerned and this appeal may be confined to the point of quantum of sentence, imposed by the trial court and that aspect need be considered at this juncture. 5. In view of fact that this appeal is now confined only to the consideration of the point of quantum of sentence imposed on the accused, therefore, it would be out of use to describe the entire facts in this case. However, brief sketch of relevant facts of this case need be referred at this stage for proper appraisal of the facts and evaluation of evidence vis a vis circumstances of this case. 6. The factual matrix as discernible from the description of the incident in the certified copy of the judgment appears to be that the incident took place on 31.05.1985 at about 12.30 P.M. when the bullock of Rahmat Ullah got untied and caused scratch to the chapper of Balla thus causing some damage to it. Balla along with Tilak Ram went to the house of Rahmat Ullah and scolded him. During the course of altercation, Rahmat Ullah asked him to desist, which infuriated Balla and his brother Tilak Ram, due to which, Balla who possessed sword and Tilak Ram, who possessed lathi caused injury to Rahmat Ullah by giving him a number of blows with the sword. Accused Tilak Ram stood guard during the incident. During the course of altercation, Rahmat Ullah asked him to desist, which infuriated Balla and his brother Tilak Ram, due to which, Balla who possessed sword and Tilak Ram, who possessed lathi caused injury to Rahmat Ullah by giving him a number of blows with the sword. Accused Tilak Ram stood guard during the incident. On alarm being raised by the injured Rahmat Ullah, witnesses Kallu and Jamil arrived on the spot challenged the assailants, whereupon, they fled away from the scene. 7. Report was lodged and investigation ensued, pursuant thereto Rahmat Ullah was examined by medical examination. Doctor S.P. Pant (Medical Officer Incharge P.H.C. Khutar) medically examined Rahmat Ullah at 11. P.M. on 31.5.1985 and prepared the wound report Exhibit Ka-2. It has been proved by him that he found "an incised wound 5.5 cm x 1 cm x bone deep with bleeding present, on the upper part of left chest, just at the collar in which he suspected fracture of underlying bone and for ascertaining the same advised X-ray. He also found an incised wound 6 cm x 1.5 cm x bone deep on the back of the left forearm 11 cm above the wist joint with blood clots present and on cleaning the injury he found bleeding and also found fracture of the underlying bone. The third and last injury found by him was also an incised wound 3 cm x 1 cm x bone deep on the back of the right forearm 14 cm above the wrist joint having bleeding. The doctor confirmed that the injuries could be caused by sword at the time of incident and the injury no.2 was grievous. Since no X-ray was presented before him, he could not characterize injury no.1 which he kept under observation as grievous. 8. During the course of Investigation, Investigating Officer performed the relevant formalities and after completing the investigation submitted the charge- sheet against the accused. 9. As a sequel to that, proceeding of the case was committed to the court of Sessions from where, this case was made over for conduction and disposal of the trial to the court of II Additional Sessions Judge, Shahjahanpur. In turns, appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case against the accused- appellant. Therefore, it framed charge against the appellant under Section 307/34 IPC. In turns, appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case against the accused- appellant. Therefore, it framed charge against the appellant under Section 307/34 IPC. Charge was read over and explained to the accused, who abjured charge and opted for trial. 10. The prosecution, in order to prove guilt of the accused, examined as many as four witnesses:- Rahmat Ullah P.W.1 is the injured- informant of this case. He has lodged the FIR, Exhibit Ka-1, orally and put the signature on it. He also stated that about a month after the incident the Sub- Inspector collected from him the blood stained 'Tehmat' and shirt and added that he was wearing these clothes at the time of the incident. Doctor B.P. Pant P.W.2 has medically examined the injured Rahmat Ullah and prepared the wound report, and has proved the process as Exhibit Ka-2. Kallu P.W.3 is a witness of fact. Constable Brij Bhushan Singh P.W.4 is the scribe of the FIR (Exhibit Ka-1) and in his presence thumb impression has been affixed by the informant- Rahmat Ullah. He also registered the case by making entry in the G.D., Exhibit Ka-3 and prepared the Chitthi Majroobi, Exhibit Ka-4. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C, wherein accused-appellant Tilak Ram stated that when the 'chhaper' was damaged he and Balla felt embarrassed and both of them out of anguish abused Rahmat Ullah and then ran back to their house on being chased by Rahmat Ullah etc. who trespassed into their house. He denied having beaten or caused any injuries to Rahmat Ullah. He claimed to have been falsely implicated in this case on account of parti bandi and Panchyat election rivalry. The defence did not lead any evidence whatsoever. Consequently, case was posted for arguemnt pros and cons between the parties and the trial Jude after considering the entire matter on its merit and on marshaling of facts and evaluating evidence returned aforesaid finding of conviction and passed sentence against the appellant. Consequently, this appeal. 11. The defence did not lead any evidence whatsoever. Consequently, case was posted for arguemnt pros and cons between the parties and the trial Jude after considering the entire matter on its merit and on marshaling of facts and evaluating evidence returned aforesaid finding of conviction and passed sentence against the appellant. Consequently, this appeal. 11. Learned counsel for the appellant urged that the sentencing part of the judgment and order impugned dated 05.12.1986 passed by II Additional Sessions Judge, Shahjananpur is being questioned and assailed on the strength of the merit of this case qua facts and circumstances of the case appearing against the surviving appellant and he persuaded the Court for imposition of mild sentence instead of the sentence of imprisonment awarded by the trial court. He went on to add that this case relates back to the year 1985-86 and more than 32 years have elapsed since then. The accused has grown old and older and during this period, no complaint of any sort pertaining to involvement of the appellant in any criminal act or offence has been heard and the role of the present appellant in the very incident even if admitted then the same is confined to his mere presence on the spot and no overt act done by him. He neither committed any over act nor did he cause any sort of injury, whatsoever, on the injured Rahmat Ullah in the incident on 31.05.1985 around 12.30 P.M. in village Basoopur, Police Station- Sehramu North, District Shahjahanpur. 12. In this peculiar and particular fact situation, how was it justified that the surviving appellant- Tilak Ram, who did not make any overt jesture in the causing of any lethal blow on the person of injured- Rahmat Ullah- can be punished at par with the other co-accused (Balla), who was possessed of sword and who alone caused all the three incised wounds on the person of the injured. That way, sentence imposed is too harsh against the appellant, therefore, his case need be considered sympathetically in the light of the merit of the case and the particular role played by the appellant. 13. That way, sentence imposed is too harsh against the appellant, therefore, his case need be considered sympathetically in the light of the merit of the case and the particular role played by the appellant. 13. Learned counsel summed up by submitting that it is apparent that the appellant was taken into custody on the date of the judgment i.e. 5.12.1986 and remained in custody till the bail was granted by this Court, vide order dated 2.1.1987, when the appeal was presented. The appellant must have been confined to the imprisonment upto 3rd January, 1987. That way, the appellant suffered detention in this case for at least 30 days, which period should be considered sufficient period of imprisonment and he may be punished with the sentence of period suffered/undergone by him in detention in this case. 14. Learned AGA vehemently opposed the prayer so made and supported the sentencing done in this case. He has justified the sentencing part of the judgment and has submitted that just sentence has been awarded against the appellant because he also participated in the incident. However, he has not disputed the factual aspect of this case that any lathi blow, whatsoever, was given by the present appellant and his role is confined to that of guarding on the spot, and he he did not indulge in causing injury and he has not disputed the injury report, Exhibit Ka-2, wherein all the injuries noted are incised wounds, which could have been caused by sword as opined by P.W.2 Dr. B.P. Pant. 15. Considered the submission so raised and also considered the entirety of the case. Bare perusal of the testimony on record and particularly the testimony of the injured Rahmat Ullah (P.W.1) and the eye-witness Kallu (P.W.3), when considered in its detail, is found to be consistent, clinching; and their creditworthiness cannot be doubted and inspires confidence, therefore, the same was acted upon and was found to be consistent one against the appellant, and conviction recorded by the trial court under Section 307/34 IPC. 16. After considering the aforesaid factual aspect of participation of accused and keeping guarding on the spot, it is admitted fact that the appellant did not cause any injury on the injured- Rahmat Ullah. 16. After considering the aforesaid factual aspect of participation of accused and keeping guarding on the spot, it is admitted fact that the appellant did not cause any injury on the injured- Rahmat Ullah. That way, sentencing him for five years R.I. under Section 307/34 IPC, keeping the sentence at par with the main accused- Balla, who was possessed of sword and causded three incised wounds, would not be just and proper; and in the fitness of things a mild view of appellant's case ought to have been taken and acted upon by the trial court. 17. The sentence of five years R.I. under Section 307/34 IPC appears to be a bit harsh, under the facts and circumstances of the case. 18. Considering the particular fact that no injury was caused by use of lathi and all the injuries were found to be incised injury caused by sword, which was caused by another co-accused- Balla, the sentencing part of the judgment ought to have been varied and contemplated lenient in favour of the appellant and lesser punishment ought to have been awarded. Considering from that angle, the sentencing to the magnitude of five years R.I. awarded by the trial court against the present surviving appellant under Section 307/34 IPC is hereby modified to the extent of the period already undergone and suffered by him in detention (30 days) coupled with fine Rs.3000/-, and in case of default, the appellant would have to suffer additional simple imprisonment for one month period. The amount of fine shall be deposited within a period of one month from today. Accordingly, sentencing part of the judgment and order impugned stands modified. 19. In view of above, this appeal succeeds in part and the sentencing made by the trial court vie order impugned dated 05.12.1986 passed by II Additional Sessions Judge, Shahjananpur in S.T. No.305 of 1986 arising out of Case Crime No.45 of 1985, under Section 307/34 IPC, Police Station- Sehramau North, District- Shahjahanpur is hereby modified to the magnitude as above. 20. Consequently, this appeal is allowed partly in terms aforesaid. 21. Let a copy of this order be forwarded to the lower court for its intimation and follow-up action.