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2019 DIGILAW 1380 (ALL)

Sundu v. State of U. P.

2019-05-20

AJIT SINGH

body2019
JUDGMENT : Ajit Singh, J. 1. Heard learned Counsel for the appellants and learned AGA for the State. 2. This criminal appeal has been filed against the judgment and order dated 27.2.1989 passed by IVth Additional Sessions Judge, Bijnor passed in Session Trial No. 311 of 1987, by which the appellants have been convicted to undergo one year R.I. under section 452 I.P.C. And Rs. 1,000/- fine each under section 323/34 I.P.C. and in default of payment of fine shall undergo R.I. for six months and it was further ordered to pay this amount of fine to complainant as compensation. 3. The present appeal, as per report of Chief Judicial Magistrate, Bijnor the appellant No. 3, namely, Lokendra has expired. The present appeal with regard to appellant No. 3, Lokendra is concerned was abated vide order dated 19.11.2018 passed by Coordinate Bench of this Court. The present appeal is confined to appellant Nos. 1 Sundu and appellant No. 2 Jagga only. The appellant No. 2, Jagga is presently lodged in jail. Since the non-bailable warrants were also issued against the appellant No. 1 but it could not be served upon the appellant No. 1 so the appellant No. 1 was not arrested but now the learned Counsel for the appellants is arguing the appeal on behalf of the appellant Nos. 1 and 2. 4. Brief facts of the case are that on 22.7.1987 at about 4.00 p.m. the appellant No. 3, Lokendra, appellant No. 2 Jagga and appellant No. 1 Sundu armed with dandas and the other accused armed with stones entered into the house of the complainant. The husband of the complainant was lying down inside the house and beaten the husband of the complainant by dandas and stones. The husband of the complainant raised alarm, which attracted the attention of the witnesses Jasrath and Pappu, who saved the husband of the complainant from the accused persons. The husband of the complainant received injuries and he was medically examined on the same day at about 8.45 p.m. by Dr. S.K. Rastogi, Medical Office In-charge, Meerut. It was further mentioned in the complaint that the first information report could not be lodged at the police station because the police has not noted down the report of the complainant. The husband of the complainant received injuries and he was medically examined on the same day at about 8.45 p.m. by Dr. S.K. Rastogi, Medical Office In-charge, Meerut. It was further mentioned in the complaint that the first information report could not be lodged at the police station because the police has not noted down the report of the complainant. The husband of the complainant sent a telegram to the Superintendent of Police, Bijnor and copy of the same has been exhibited as Ka-1 was filed by the prosecution. The house of the complainant later-on succumbed to the injuries in Delhi where an inquest was prepared and post mortem was conducted by Dr. D.N. Bhardwaj on 14.3.1986. After the death of her husband, the complainant moved an application to Superintendent of Police, Bijnor alleging the entire incident and on the basis of that application, a case was ordered to be registered and investigated. 5. The first information report Ext. Ka-3 and G.D. Report Ext. Ka-4 were prepared on the basis of the application of the complainant to Superintendent of Police, Bijnor Ext.Ka-2. The first information report and the G.D. Report were duly proved by the PW-2, Investigating Officer of the case. 6. PW-5, Dr. S.K. Rastogi, who has medically examined the injured, Gyun Singh at about 8.45 p.m. has found seven injuries, contusion, two abraded contusion, Linear abrasion, contusion and complaint of pain on back of lower part of neck and back of chest on both sides. 7. PW-6, Dr. D.N. Bhardwaj, Medical Officer, Lady Harding Medical College, Delhi, who conducted the postmortem was also examined, who proved the post-mortem report Ext. Ka-9. 8. The prosecution in order to prove its case has examined PW-1, Smt. Kishan Dai, wife of the deceased, eyewitnesses of the case, PW-2, Pappu and PW-3, Jasrath, PW-4, K.M. Mishra, the Investigating Officer of the case, PW-5, Dr. S.K. Rastogi, Medical Officer, District Hospital, Bijnor, PW-6, Dr. D.N. Bhardwaj, Medical Officer, Lady Harding Medical College, Delhi. The accused persons did not produce any witness in their defence. 9. PW-2 Pappu and PW-3 Jasrath are the eye-witnesses of the occurrence. They narrated the entire prosecution version in their statements on oath. Thus, the statement of the complainant is fully corroborated by the evidence of PW-2 and PW-3. D.N. Bhardwaj, Medical Officer, Lady Harding Medical College, Delhi. The accused persons did not produce any witness in their defence. 9. PW-2 Pappu and PW-3 Jasrath are the eye-witnesses of the occurrence. They narrated the entire prosecution version in their statements on oath. Thus, the statement of the complainant is fully corroborated by the evidence of PW-2 and PW-3. PW-2, is the real brother of the deceased as per his own admission in the cross-examination but the PW-3 is an independent eye-witness of the incident. Both the witnesses are residing in the same locality as is clear by their unrebutted statement on this point and, therefore, they are natural witnesses. No enmity of any kind of the accused with these witnesses is established or proved by any evidence on record. 10. After taking the prosecution evidence, the statement of the accused under section 313 Cr.P.C. was recorded and the accused had not led any evidence in their defence. The accused in their statements recorded under section 313 Cr.P.C. alleged that they have been falsely implicated in the present case due to village partybandi. 11. Learned Counsel for the appellant submitted that the appellant No. 2 was earlier in jail got for some time and now the appellant No. 2 is in jail for the last about eight months and the appellant No. 1 has was also in jail for some time. He next submitted that it was the first offence of the accused/appellants and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and their age related ailments. 12. Learned A.G.A. on the other hand has opposed the argument of learned Counsel for the appellant and has submitted that the conviction of the appellant Nos. 1 and 2 are fully justified and no interference is required in their conviction, hence the appeal against the appellant Nos. 1 and 2 be dismissed and accused be directed to suffer the sentence. 13. In the case of Bankat and another v. State of Maharashtra 2004 (50) ACC 953 (SC) : 2004 (24) AIC 58 , accused were convicted under section 326 I.P.C. and sentenced for one year imprisonment with fine. 1 and 2 be dismissed and accused be directed to suffer the sentence. 13. In the case of Bankat and another v. State of Maharashtra 2004 (50) ACC 953 (SC) : 2004 (24) AIC 58 , accused were convicted under section 326 I.P.C. and sentenced for one year imprisonment with fine. Hon'ble Apex Court reduced the sentence to the period already undergone on the ground that the parties have settled the dispute outside the Court and 10 years have elapsed from the date of incident. 14. In the case of Sattan Sahani v. State of Bihar and others 2002 (45) ACC 1134 (SC), accused were sentenced to three years' rigorous imprisonment under section 326, I.P.C. In appeal, Hon'ble Supreme Court reduced the sentence to the period already undergone on the ground that the incident took place two decades back and parties have also compromised. 15. In the case of Uthem Rqajanna v. State of A.P. 2005 (11) SCC 531 , accused was convicted and sentenced for six months under section 304-A I.P.C. alongwith fine and for three months under section 338 I.P.C. In appeal Hon'ble Supreme Court has reduced the sentence to the period already undergone. 16. In the case of Neelam Bahal and another v. State of Uttarakhand 2010 (69) ACC 454 (SC), accused was convicted under section 307 I.P.C. and was sentenced to undergo seven years' rigorous imprisonment. Hon'ble Supreme Court has convicted accused under section 326 I.P.C. and reduced the sentence to period already undergone, i.e. almost one year, on the ground that the incident happened in the year 1987 when the accused was of young age of 25 years. 17. After considering the rival submissions made by learned Counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1987 about 32 years ago and now appellant Nos. 1 and 2 are more than 60 years of age and considering that the accused/appellant Nos. 1 and 2 had suffered the agony of conviction for more than 32 years and no criminal antecedents have been shown to their credit after passing of so much long period out of jail, at this stage it does not appear appropriate to send the accused-appellant to jail. It has been pointed out by learned Counsel for the accused-appellant that the accused-appellant had remained in jail for sometime during trial. It has been pointed out by learned Counsel for the accused-appellant that the accused-appellant had remained in jail for sometime during trial. 18. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be enhanced. 19. Considering all the facts and circumstances of the case, the accused-appellant Nos. 1 and 2 are sentenced to the period already undergone by them in jail during trial and an amount of fine of Rs. 5,000/- be imposed instead of sending them to jail. 20. Accused-appellant Nos. 1 Sundu and appellant No. 2, Jagga are both being directed to deposit the fine of Rs. 5,000/- before learned Lower Court within two month from the date of issuance of certified copy of this order, out of which Rs. 2,500/- shall be paid to the complainant, if she is alive and in case she is dead then it would be paid to her legal heirs and in default of payment of fine as directed above, accused shall undergo simple imprisonment for a period of fifteen days. If the said amount is deposited by the appellant No. 2, Jagga he shall be released forthwith, if not wanted in any other case and the appellant No. 1, Sundu who was not arrested in compliance of the order of this Court need not to surrender. The appellant No. 1, Sundu will also deposit the fine of Rs. 5,000/- within two months from the date of issue of certified copy of this order. 21. Appeal is partly allowed against the appellant Nos. Sundu and appellant No. 2, Jagga in the above terms. Copy of this order be transmitted to the concerned Lower Court forthwith for compliance.