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Allahabad High Court · body

2019 DIGILAW 2520 (ALL)

Shree Pal v. State of U. P.

2019-11-11

AJIT SINGH

body2019
JUDGMENT : 1. Heard Shri Hemendra Pratap Singh, learned counsel for appellants, Shri S.B. Maurya, learned AGA and perused the record of the case. 2. This criminal appeal has been filed against judgment and order dated 18.01.2005 passed by the Additional District and Sessions Judge (Fast Track Court No. 3), Aligarh in S.T. No. 574 of 2003 (State vs. Shree Pal and others), Under Sections 395, 397, 353, 333, 336, 504 I.P.C., P.S. Khair, District-Aligarh, by which the appellants have been convicted and sentenced under Section 332 read with Section 149 IPC to undergo two years rigorous imprisonment and one year rigorous imprisonment under Section 147 IPC and they have been acquitted from the offences punishable under Sections 395, 397, 353, 333, 336, 504 of I.P.C. 3. The prosecution story in brief is that On 23.05.2002 at about 1:30 a.m. aFirst Information Report was lodged at Case Crime No. 308 of 2002 under Sections 395, 397, 353, 333, 336, 504 of I.P.C. against six named persons i.e. accused appellants and 60-70 unknown persons on the allegation that the accused persons have assaulted the police personnel with intention to kill them. It is further alleged in the First Information Report that there was a dispute between the residents of village Rustamgarh and Bakner over the construction of a road and the villagers of Bakner had obtained a stay order from the Court. On 22.05.2002 both the parties agreed that no one would go against the stay order and status quo would be maintained on the spot. Satya Pal Singh, SHO of the concerned police station was informed that against the stay order the residents of village Rustamgarh were constructing road in night by machine. He along with his accomplishes reached there and tried to stop them but they did not stop the illegal construction work. He called for additional police force and there reached First Informant S.I. Bhupal Singh, Constable Kishalpal Singh and Constable Girraj Kishore Dubey. They saw the residents of village Rustamgarh standing laced with Lathi, country made pistols as well as bricks and stones. They asked them to maintain law and order but they continued with their illegal construction of road and attacked on the police party with intention to kill them. They saw the residents of village Rustamgarh standing laced with Lathi, country made pistols as well as bricks and stones. They asked them to maintain law and order but they continued with their illegal construction of road and attacked on the police party with intention to kill them. They created problem to the police officials in discharge of their duty and caused serious injuries to Constable Kushal Pal Singh with Lathi-Danda, bricks and stones and service rifle No. 22722 W and Magazine with five cartridges were also taken away by Shri Pal and Dalbir with intention to fire back at the police party. 4. It is further narrated in the First Information Report that in the light of the burnt Jeep as well as in torch light the accused appellants were identified. The Station House Officer and other policemen made fires in air to save themselves and anyhow the crowd was disrupted from the spot. The injured Kushal Pal Singh was carried to the police station and was sent for medical examination at PHC Khair, District Aligarh. 5. After registering the case, the matter was investigated and the Investigating Officer submitted the charge sheet against the accused and the cognizance was taken by the Magistrate and considering that the case was triable by the Session Judge, it was committed to the Court of Session and the Session Court charged the accused with the offences punishable under Sections 395, 397, 353, 333, 336, 504 of I.P.C. 6. Thereafter, the prosecution side was asked to lead the evidence against the accused and the evidence available with the prosecution as well as the evidence collected by them during the investigation was led before the Trial Court. The Trial Court examined the accused under section 313 Cr.P.C. and were given opportunity to lead defence evidence if any. The accused denied the charges and claimed trial. They did not lead any evidence in their defence. The Trial Court examined the accused under section 313 Cr.P.C. and were given opportunity to lead defence evidence if any. The accused denied the charges and claimed trial. They did not lead any evidence in their defence. However, their submission was that there was no public witness of the incident in question, but this submission was not taken into account by the court on the reasoning that since the dispute was with the police officials and a large number of villagers were involved, therefore, it was not possible for any witness from the village to come forward in support of the police and the Trial Court rightly inferred the commission of offences by the accused appellants on the basis of other evidence available on record. 7. After completing the trial proceeding and taking into consideration the evidence available on record as well as the arguments made by the counsel for the parties, the Trial Court did not come to the conclusion that the accused appellants were guilty of the offences under which sections the charge sheet was submitted but they were found guilty of the offences punishable under Section 332 read with Section 149 IPC as well as under Section 147 IPC and accordingly, convicted and sentenced them as aforesaid and being aggrieved with the said order, the accused appellants have come up before this Court in appeal. 8. At the very outset, the learned counsel for accused appellants submits before this Court that he does not want to press the appeal on legality of conviction but wants only to press this appeal on the quantum of sentence. He requests this Court to take a lenient view in the matter. In that regard, the learned counsel submits that the incident is alleged to have taken place in the 2002 and at present one of the accused namely Shri Pal son of Ram Lal is about more than 70 years of age; accused Shri Chand son of Ram Lal is more than 67 years of age; Balveer son of Nidda Singh is about 59 years of age; Bhoop Singh son of Chokhe Lal is 75 years of age; Sanjay son of Hakim Sigh is more than 46 years of age and Anil Kumar is about 35 years of age. 9. 9. It is also submitted by the learned counsel for the appellants that initially the First Information Report was lodged against accused appellants under Sections 395, 397, 353, 333, 336, 504 of I.P.C. and the charge were also framed against them under the same Sections, but they were convicted under Section 332 of IPC read with Section 149 of IPC. He only wants to press this appeal on the quantum of sentence and also submits that in several such matters, the Hon'ble Apex Court has taken a lenient view and accused were set free of the remaining sentence only on the basis of the sentence already undergone and on deposit of some fine in lieu of the imprisonment. Therefore, in the present case also it would be justifiable and proper and also the ends of justice would be served if this Court takes a lenient view and does not send them to jail. He further submits that some fine may be imposed by this Hon'ble Court upon them to reduce the sentence to the sentence already undergone. 10. Learned A.G.A. on the other hand has opposed the argument of learned counsel for the appellants but he has not disputed the submission of the learned counsel for appellants made before this Court for imposing fine reducing the sentence to the sentence already undergone by the accused appellants. 11. Since the learned counsel for accused appellants does not challenge their conviction, the same is hereby upheld by this Court. 12. So far as the quantum of sentence is concerned, the learned counsel for appellants submits that no useful purpose would be served by sending the accused persons to the prison after a lapse of about fifteen years and in the interest of justice it would be better if their sentence is reduced to the sentence already served out by them during trial subject to the deposit of some fine to be assessed and imposed by this Court. 13. To arrive at a conclusion as to whether sentence awarded to the appellants can be reduced as argued by their learned counsel or not, this Court thinks it necessary to go through the record of the case as well as the judgment and order passed by the Trial Court challenged in this appeal. 13. To arrive at a conclusion as to whether sentence awarded to the appellants can be reduced as argued by their learned counsel or not, this Court thinks it necessary to go through the record of the case as well as the judgment and order passed by the Trial Court challenged in this appeal. Having gone through the same, it reveals that the prosecution in order to prove its case examined seven witnesses -PW1 SI Sunder Lal Verma, PW2 Constable Kushal Pal Singh, PW3 HCP Amar Singh, PW-4 Dr. S.K. Rana, PW-5 SI Virendra Kumar, PW-6 P.L. Prabhakar Inspector, PW-7 Prem Prakash. Besides it, the prosecution has led before trial court documentary evidence like Ext. K-1 (written Tahreer of FIR), Ext. K-2 (Chik FIR), Ext. K-3 (Nakal Rapat G.D No. 2 1:30 A.M. dated 23.05.2002, PS Khair), Ext. K-4 Medical Examination Report of injured Kushalpal Singh, Ext. K-5 (Site Plan), Ext. 6 (Charge Sheet), Ext. -7 (Site Plan), Ext. K-8 (Empty Cartridge) and Ext.-9 (bricks and pieces). 14. PW-3 HCP Amar Singh appeared before Court below and proved the Ext. Ka-2 as well as Ext. Ka-3. 15. PW-4 Dr. S.K. Rana was also examined by the Court below. He stated that he examined injured constable Kushal Pal Singh and found as many as eight injuries on his body which are being detailed below:- 1.Lacerated Wound 2x 1/2 cms, skull bone deep, existed on the right side of head and blood was oozing irregularly. 2.Contusion 2.5x1.00 cms on the right side of head and 2.5cm back side of injury No. 1 with redness and blood was oozing. 3.Contusion 2.00 x 1.5 cms on the head. 4. contusion with abrasion 4 x 1.5 cms on the right side of face with redness 2 cm away from right eye. 5. Many contusions in the area of 28x30 cms behind the chest with redness between the size of 6 x 3.5 cm to 15 x 3 cm. 6. Swelling contusion mark 15x6 cms behind right forearm and 3cm below the elbow with redness. 7.Ligature contusion mark 6x2.5cm sin side of the right fore arm 9cm above the wrist with redness. 8.Contusion size 7x3 cms behind the left fore arm and above the wrist with redness. 16. 6. Swelling contusion mark 15x6 cms behind right forearm and 3cm below the elbow with redness. 7.Ligature contusion mark 6x2.5cm sin side of the right fore arm 9cm above the wrist with redness. 8.Contusion size 7x3 cms behind the left fore arm and above the wrist with redness. 16. Besides above, the learned Trial Court has examined other witnesses mentioned in the impugned order and looked into the documentary evidences available on record as injury reports, site plan of the incident, the papers related to the burnt jeep, etc. to come to the conclusion that the incident in question was caused by the accused appellants. 17. In support of the appeal, the learned counsel also submits before this Court that it was the first offence of the accused-appellants and after conviction they had not indulged in any other criminal activity. Since, it has been submitted by the learned counsel on behalf of the appellants 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 a lenient view considering the age of the accused persons and their age related ailments, this Court does not want to go into a deeper analysis of the evidence available on record in view of the following decisions of the Apex Court:- 18. In the case of Bankat and another Vs. State of Maharashtra, reported in (2005) 1 SCC, 343; 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. 19. In the case of Sattan Sahani Vs. State of Bihar and others, reported in (2002) 7 SCC, 604; 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. 20. In the case of Uthem Rqajanna Vs. State of Bihar and others, reported in (2002) 7 SCC, 604; 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. 20. In the case of Uthem Rqajanna Vs. State of A.P., reported in 2005 (11) SCC, 531, accused was convicted and sentenced for six months under Section 304-A I.P.C. along with 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. 21. In the case of Neelam Bahal and another Vs. State of Uttarakhand, reported in (2010) 2 SCC, 229; 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. 22. After considering the rival submissions made by learned counsel for the appellants, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 2002 about 17 years ago and now, one appellant is 59 years of age, next one is 67 years of age and out of them one appellant has reached the age of 70 years. Not only this, even one appellant namely Chokhe Lal has crossed the 70 years of age and is now 75 years of age. The appellant No. 5 Sanjay is 46 years of age and appellant No. 6 Anil Kumar is 35 years of age and when the incident took place, both were young of 29 and 18 years of age. Not only this, even one appellant namely Chokhe Lal has crossed the 70 years of age and is now 75 years of age. The appellant No. 5 Sanjay is 46 years of age and appellant No. 6 Anil Kumar is 35 years of age and when the incident took place, both were young of 29 and 18 years of age. Both the parties are resident of the same village, at this stage, this Court feels that it would not be proper to send the accused-appellants to jail at the fag end of their life and they were on bail since 27th January, 2005 and the accused have suffered the agony of conviction for more than 17 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-appellants to jail. It has been pointed out by learned counsel for the accused-appellants that the accused-appellants had remained in jail for sometime during trial. Regard being had to the facts and circumstances of the case and the Apex Court’s decisions cited above, it would be appropriate and proper that the accused appellants be sentenced with the period already undergone and fine be imposed. 23. In the result, the accused-appellants are sentenced to the period already undergone by them in jail during trial and an amount of fine of Rs. 1000/- each be imposed instead of sending them to jail. 24. Accordingly, each of the accused-appellants is directed to deposit the fine of Rs. 1000/-before learned lower court within three months from the date of passing of the judgment of which Rs. 2400/-shall be paid to the injured, if he is alive and in case he is dead then it would be paid to his legal heirs and in default of payment of fine accused-appellants shall further undergo 15 days' imprisonment. 25. It has been informed by learned counsel for appellants that all the appellants are on bail. Therefore, the bail bonds are cancelled, sureties are discharged and they are directed to deposit the fine imposed on them within three months from the date of issuance of a certified copy of this order. 26. Appeal is partly allowed in the above terms. 27. Copy of this order be transmitted to the concerned lower court forthwith for compliance.