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2018 DIGILAW 702 (ALL)

NATTHU v. STATE OF U. P.

2018-03-23

ARVIND KUMAR MISHRA

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JUDGMENT : Hon'ble Arvind Kumar Mishra-I, J. 1. By way of the instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 11.03.1986 passed by the Additional Sessions Judge, Lalitpur, in Session Trial No.1 of 1986 State Vs. Natthu and others, arising out of Case Crime No.27 of 1985 under Sections 325/34, 323/34, 324 IPC, Police Station- Jakhlaun, District- Lalitpur, whereby appellants Roshan and Natthu have been sentenced to two years rigorous imprisonment under Section 325/34 IPC, one year rigorous imprisonment under Section 323/34 IPC, whereas, appellant Puran has been sentenced to one year and six months rigorous imprisonment. Sentences to run concurrently. 2. Relevant to mention that the present appeal was preferred by three appellants, however, two of them namely Natthu and Puran expired during pendency of this appeal, therefore, this appeal qua appellants Natthu and Puran stands abated. 3. Heard Sri Jai Singh Yadav, learned counsel for the surviving appellant Roshan Lal, learned AGA for the State and perused the record. 4. Since learned counsel for the appellant has not assailed the conviction part of the impugned judgment and has relinquished his claim and wants to extend argument on the point of quantum of sentence, therefore, it would not be in the fitness of things that a detailed narration of the incident is sketched as that would serve no worthy purpose. Though the entire facts and circumstances of the case have been taken into consideration and described in the impugned judgment but for the proper understanding of the case, it would be feasible in the interest of justice that a mention of the relevant facts is made. 5. The factual matrix of this case as discernible from record appears to be that a written report Ext. Ka-2 was lodged 15.02.1985 at 5:05 p.m. by the informant Smt. Hazari wife of Nand Kishore at Police Station Jakhlaun, District Lalitpur whereby aspersions were made for assaulting the informant side and thereby committing offences under Sections 323, 324 IPC. 6. Crux contents raised in the written report is confined within the ambit that the appellant tried to destroy potato belonging to the informant which was sown in the field and on being asked not to indulge in such act, the informant side was beaten by the appellant. Two accused were possessing Lathi and Danda and one accused was possessing axe. Crux contents raised in the written report is confined within the ambit that the appellant tried to destroy potato belonging to the informant which was sown in the field and on being asked not to indulge in such act, the informant side was beaten by the appellant. Two accused were possessing Lathi and Danda and one accused was possessing axe. On the intervention of the villagers and the informant, the situation could be retrieved. The time of the incident was stated to be 1:00 p.m. 7. This report was taken down in the concerned Check FIR Ext. Ka-4 at Case Crime No.27 of 1985 under Sections 323, 324 IPC, Police Station Jakhlaun, District Lalitpur and on the basis of the same, a case was registered in the concerned general diary Ext. Ka-5 on the aforesaid date and time at aforesaid crime number under aforesaid sections of IPC at Police Station Jakhlaun, District Lalitpur. 8. Record further reflects that the injured Nand Kishore was sent to the district hospital Lalitpur for medical examination where he was examined by Dr. P.C. Saxena who noted as many as seven injuries during examination on 15.02.1985 at 6:45 p.m. Except injury no.1, which was on the scalp in the measurement of 4.5 cm x 1/2 cm, 6 cm above right ear, all other injuries were in the nature of contused swelling. Injury no.2 was directed to be kept under observation and was caused by some sharp edged weapon. On x-ray being done, fracture of skull was discovered by Dr. M.K. Basanati, Radiologist. 9. The investigation ensued. S.I. Vishram Singh, the Investigating Officer recorded statement of various persons apart from doing other formalities and particularly preparing spot map Ext. Ka-6 and after completing the investigation, filed charge sheet against the appellant as Ext. Ka-7. 10. Consequently, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Lalitpur who in turn heard both the sides on point of charge and was, prima-facie, satisfied with case against the appellant, accordingly, framed charge under Section 307/34 IPC. Charge was read over and explained to the appellant who abjured charge and opted for trial. 11. The prosecution, in order to prove guilt of the accused examined as many as seven witnesses namely Dr. Charge was read over and explained to the appellant who abjured charge and opted for trial. 11. The prosecution, in order to prove guilt of the accused examined as many as seven witnesses namely Dr. P.C. Saxena PW-1 has medically examined the injured. Nand Kishore PW-2 is the injured himself. Man Singh PW-3 is eyewitness of the occurrence. Dr. M.K. Basantani PW-4 is the radiologist who has proved x-ray plate as materials Ext.-2 and Ext.- 3. Genda Lal Gadariya PW-5 is witness of fact. Smt. Hazari PW-6 is the informant and witness of fact, she has proved the written report. S.I. Vishram Singh PW-7 is the Investigating Officer, he has detailed various aspects of the investigation before the trial court. Except as above, no other testimony was adduced by the prosecution. 12. Thereafter, evidence for the prosecution was closed and statement of the appellant was recorded u/s 313 Cr.P.C., wherein, he cited various reasons for false implication and counted enmity as motive behind the crime. No evidence, whatsoever, was led by the defence. 13. The learned trial Judge, Laltpur, after appraisal of facts and consideration of the merit of the case and evaluating the evidence on record, returned aforesaid finding of conviction and awarded sentence vide impugned judgment and order dated 11.03.1986. 14. Resultantly, this appeal. 15. At the very outset, learned counsel for the appellant has nothing to say on meritorial aspects of this case and he does not wish to press this appeal qua conviction recorded against the present appellant under the aforesaid Sections of IPC. However, he has questioned the point of quantum of sentence awarded and prayed that lenient view may be adopted looking to the fact that the role of the appellant was milder in comparison to the other two accused. 16. It has been urged by learned counsel for the appellant that in this case, there was no pre-plan to cause any such injury as would have been fatal or to cause serious damage to the informant side. The quarrel took place suddenly because the informant side abused the appellant and the occurrence took place in a fit of passion. Both the sides are relatives. The injured is real brother of the appellant Natthu and the other two appellants (since expired) are sons of the appellant Natthu. The quarrel took place suddenly because the informant side abused the appellant and the occurrence took place in a fit of passion. Both the sides are relatives. The injured is real brother of the appellant Natthu and the other two appellants (since expired) are sons of the appellant Natthu. That way, the other two appellants (since expired) except appellant Natthu are nephew of the injured Nand Kishore. 17. Now family peace has been restored and both the parties are living peacefully, therefore, it would not be in the fitness of thing that sentence of imprisonment to the magnitude as awarded by the trial court should be adhered to, instead it need be relaxed to the period already undergone or to the period of one month detention. However, learned counsel for the appellant has clarified that the present appellant has already suffered more than two months of detention in this case. 18. Lastly, it has been submitted that there is no criminal antecedent to the appellant. During pendency of this appeal, no illegal or criminal act was committed by the appellant. 19. Per contra, learned AGA has opposed the prayer for reducing the sentence imposed by the trial court and has submitted that the sentence imposed by the trial court is proportionate to the offence committed by the appellant. However, learned AGA has not disputed claim of the appellant that he does not carry any criminal antecedent to his name. 20. Learned AGA further added that the learned trial Judge while appreciating merit of the case was impressed by consistency of the aforesaid facts and proof of the same, therefore, rightly recorded conviction and awarded just sentence against the appellant. 21. Considered the rival submissions. 22. In this case, since the learned counsel for the appellant has no objection against the conviction recorded against the appellant and he seeks lenient view being taken of the appellant on point of the sentencing, it would be in the interest of justice that the plea so raised on point of sentencing be considered vis-a-vis facts and circumstances of the case. 23. Insofar as conviction part of the impugned judgment is concerned, there is no point in discussing the merit of the case. However, obviously the appellant has been sentenced to two years rigorous imprisonment under Section 325/34 IPC. 23. Insofar as conviction part of the impugned judgment is concerned, there is no point in discussing the merit of the case. However, obviously the appellant has been sentenced to two years rigorous imprisonment under Section 325/34 IPC. The appellant has no criminal antecedent and he was taken into custody in this case on 11.03.1986 and bail order was passed by the appellate court on 15.05.1986. It means that sentence of two months has already been suffered by the appellant as he was in jail for more than two months. 24. That way, when appellant has suffered imprisonment for more than two months and looking to the entirety of fact that there is no criminal history against the present appellant and two of the appellants have expired and both the informant and the accused side are near relatives, it would be in the fitness of things, if sentence awarded under Sections 325/34 and 323/34 IPC is modified to two months imprisonment coupled with fine Rs.1000/- under Section 325/34 IPC and one month imprisonment under Section 323/34 IPC. 25. In view of above, it is observed that the sentence imposed by the trial court to the magnitude of two years rigorous imprisonment is modified as above, that is to say, that the appellant is punished with the sentence of two months imprisonment coupled with fine Rs.1000/- under Section 325/34 IPC, in case of default in payment of fine, he will have to suffer additional imprisonment for one month and one month imprisonment under Section 323/34 IPC. 26. Accordingly, sentencing part of the impugnedjudgment and order of conviction dated 11.03.1986 passed by the Additional Sessions Judge, Lalitpur, in Session Trial No.1 of 1986 State Vs. Natthu and others, arising out of Case Crime No.27 of 1985 under Sections 325/34, 323/34, 324 IPC, Police Station- Jakhlaun, District- Lalitpur, is hereby modified to the aforesaid extent while conviction is maintained. 27. The instant appeal is allowed, partly in aforesaid terms. 28. However, it is directed that in case the amount of fine is realized then 50% of the amount of fine shall be given to the injured Nand Kishore or his successor, as the case may be. 29. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.