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2018 DIGILAW 647 (ALL)

DAN BAHADUR v. STATE OF U. P.

2018-03-16

ARVIND KUMAR MISHRA I

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order of conviction dated 26.05.1986 passed by the III Additional Sessions Judge, Jaunpur, in Sessions Trial No. 251 of 1983 - State Vs. Dan Bahadur and 3 others, Police Station- Shahganj, District- Jaunpur, whereby, appellants- Dan Bahadur, Bikram and Jangdamba have been convicted under sections 323/34 IPC and sentenced them to 9 months R.I. 2. Pertinent to mention that appellant no.4, Shyam Pati @ Shyam Priti died during pendency of this appeal. Therefore, the appeal stood abated qua vide letter of C.J.M. Janunpur dated dated 10th November, 2017. Now, this appeal is being adjudicated upon in respect of the surviving appellants- Dan Bahadur, Bikram and Jagdamba. 3. Heard Dinesh Kumar Misra, learned counsel for the appellants and Sri B.D. Nishad, learned AGA for the State and perused the record of this appeal. 4. Facts of this case, as discernible from the record, appear to be that an NCR was initially lodged orally at the dictation of informant- Surya Nath Singh S/o Ram Naresh Singh at Police Station- Shahganj at 6.15 P.M. on 5.9.1982 against the appellants under Sections 323, 504, 427 IPC, wherein, it was alleged that some civil litigation was going on regarding bamboo clumps, which was decreed in favour of the informant, still the accused were cutting bamboo clumps and on being asked not to do so, assaulted the informant with 'lathi' and 'danda'. On alarm being raised, informant's brother- Sant Prasad also arrived on the spot, who too, was beaten. On joint alarm being raised, villagers intervened, and saved informant's life, otherwise, the accused would have killed the informant. Accused occasioned a loss of Rs.60/- to the informant and cut down his bamboos. NCR is Exhibit Ka-1 on record. 5. On the same day, informant got the injuries of his brother Sant Prasad besides himself medically examined at PHC Shahganj and thereafter he has come to lodge the report. 6. Since no action was taken by the police, a complaint was moved in the case on 14.10.1982 before the lower court, wherein, it was stated, inter alia, that correct report was not written in the NCR. 6. Since no action was taken by the police, a complaint was moved in the case on 14.10.1982 before the lower court, wherein, it was stated, inter alia, that correct report was not written in the NCR. Allegation was stated made that the wrist bone of the informant got fractured, but the same was not described in the body of NCR and the police did not take any action. Thereafter, the trial court recorded statement of the informant by recording statement of complainant and witness under Section 200 and 202 Cr.P.C. against the appellants. The complaint is Exhibit Ka-2. 7. Thereafter, the case of the appellant was committed to the court of Sessions Judge, who in turn heard both the sides on point of charge, and after being satisfied with the prima facie case against the appellants, he charged them under section 394/397 I.P.C. and the charge was read over and explained to the accused, who abjured the charge and claimed to be tried, whereupon, the complainant was asked to adduce its testimony. The prosecution produced in all 4 witnesses, namely, Suryanath P.W.1- informant/complainant and injured witness, Sant Prasad P.W.2- cousin brother of informant and injured witness, Sudhdhu P.W.3- eye-witness and Dr. J.P. Singh P.W.4- doctor witness, who medically examined the injured. 8. Evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein they have claimed to be not guilty and termed their implication false due to enmity. 9. No testimony, whatsoever, was adduced, therefore the evidence for the defence was closed and arguments heard and after considering the entire facts and circumstances of the case and evaluating the testimony on record, the trial court entered finding of conviction and sentenced the appellants under the aforesaid section of Indian Penal Code, which paved way for this appeal before this Court. 10. Learned counsel for the appellants has urged that the appellants have no objection in so far as conviction of the appellants under Section 323/34 IPC is concerned, but he submitted that 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. 11. 10. Learned counsel for the appellants has urged that the appellants have no objection in so far as conviction of the appellants under Section 323/34 IPC is concerned, but he submitted that 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. 11. In view of fact that this appeal is now confined only to the point of consideration of quantum of the sentence imposed on the accused, therefore, it would be out of use to describe the entire facts in this case. 12. However, learned counsel for the appellants has raised contention that the sentencing part of the judgement need be modified and sentence reduced looking to the nature of the offence proved and in the fitness of things to extend benefit of provisions of U.P. First Offenders' Act, 1938 to all the appellants. Further added that, it is very much perceptible that the judgement in this case was delivered on 26.5.1986, whereas upto this period, when 31 years have already elapsed and 32nd year is in progress, nothing adverse has been heard of the appellants. That way, it is obvious that they (appellants) have maintained good behaviour through out these years and kept peace for the maximum time prescribed for probation, which is confined to three years period, therefore, more than 30 years have elapsed since the judgement was delivered in this case, which is a circumstance in favour of the appellants. A mild view of this situation may be taken and in case advantage of probation is extended to the appellants then the offence proved may be equated with the sentence of fine only as prescribed under Section 323 IPC that is either imprisonment for one year or with fine or with both. 13. Learned AGA has supported the conviction and sentence awarded against the appellant and has submitted that there is no specific reason to falsely implicate the appellant by the informant. 14. Also considered the rival submissions. 15. 13. Learned AGA has supported the conviction and sentence awarded against the appellant and has submitted that there is no specific reason to falsely implicate the appellant by the informant. 14. Also considered the rival submissions. 15. In view of fact that the learned counsel has not questioned the findings of conviction under Section 323/34 IPC, but he has claimed the benefit of probation or sentencing in the shape of fine only in place of 9 months R.I. awarded against each of the appellants, therefore, a brief sketch of the relevant facts and circumstances of the case, for envisaging and appreciating point of sentencing becomes proper at this juncture. Stream of events leading up to this stage, as discernible from record, appears to be that an NCR was lodged at 5.9.1982 at Shahganj, district Jaunpur against the present appellants, wherein it is reflected that there was existing old enmity between the complainant/informant and the accused regarding bamboo clumps. In this regard a case was also instituted, wherein ex parte decree was also passed, but the appellants were bent upon forcibly occupying the bamboo in question. On being questioned not to indulge in such act, the appellants assaulted the informant side with lathi and danda. On alarm being raised, the witnesses arrived on the spot and they anyhow saved the informant. It was stated that a loss of Rs.60/- was occasioned by the appellants. The NCR also contained fact that medical examination of brother of the informant Sant Prasad besides that of the informant has also been done at Government Hospital, Shahganj. This NCR was noted under Sections 323, 504 and 427 IPC at aforesaid date and time. The time of the incident was described as 1.30 P.M. on 5.9.1982. 16. In the backdrop of the above factual situation of this case, obviously, the conviction was recorded under Section 323/34 IPC and prevalence of common intention amongst the appellants was found existing, however, it is obvious that no criminal history has been imputed against the appellants and the genesis and the nature of the offence when taken in wholesome manner is indicative and suggestive of fact that some property dispute though on point of cutting of bamboo between the parties was the root cause of the crime in question, therefore, it cannot be said that the appellants are the haitual offenders. That way, the sentencing part ought to have been considered properly, vis-a-vis, attendant facts and circumstances of the case. 17. However, advantage of U.P. First Offenders' Act, 1938 could have been easily given to the appellants, but due to the reason that injury has been caused on the informant and another person by the appellants while committing the offence, advantage of probation can not be extended to the appellants. But the sentencing part when considered in the light of enormity of the offence proved becomes harsh because a sentence of fine would have served the cause of justice. Therefore, it can be conveniently observed that instead of sentence of imprisonment the sentence may be modified and confined to fine only, that way, the sentence of 9 months R.I. u/s 323/34 is modified to the ambit of fine Rs.5000/- for each of the appellant, as the proper sentence and in case of default in payment of fine, the concerned appellant would have to suffer additional imprisonment for two months R.I. Fine to be deposited within a month from the date of delivery of this judgement. 18. In case, amount of fine is realized, 1/3 of the same shall be distributed equally among both the injured, or their successor, as the came may be, as compensation amount. 19. In view of above, this appeal succeeds in part and the sentencing portion of the trial court passed vide order impugned dated 26.05.1986 in Sessions Trial No. 251 of 1983 - State Vs. Dan Bahadur and 3 others, Police Station- Shahganj, District- Jaunpur is hereby modified to the magnitude as indicated 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.