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Allahabad High Court · body

2019 DIGILAW 2523 (ALL)

Bijendra v. State of U. P.

2019-11-11

AJIT SINGH

body2019
JUDGMENT : 1. This criminal appeal has been filed against judgment and order dated 10.12.2004 passed by the Addl. Sessions Judge (FTC), Court no. 8, Gautam Budh Nagar in S.T. No. 500 of 2004 (State vs. Bijendra), Under Sections 307, 326, 504 and 506 I.P.C., P.S. Jewar, district-Gautam Budh Nagar, by which the appellant has been convicted under Sections 324, 506 and 504 I.P.C. and sentenced him to undergo two years and six months Rigorous Imprisonment. The prosecution story in brief is that on 18.5.2000 at about 8:00 p.m. the son of the complainant Nagendra was going to the shop of Shankar Lal to purchase some household items, and when he reached the shop of Shankar Lal, the accused-appellant met him. There was some hot talk took place between accused and the Nagendra 4-5 days ago. After seeing Nagendra the present accused started abusing him and when Nagendra objected the accused-appellant assaulted Nagendra with 'Bhalla' with the intention to kill. Nagendra had tried to save himself but due to repeated assault he could not save and as a result he sustained injuries on the chest and vest. The incident was witnessed by shopkeeper Shankar Lal, son of Khacheru and Kunwarpal, son of Murlidhar who were present on the spot had saved Nagendra from the hands of the accused-appellant. Upon hearing the noise, Bhajan Lal, father of injured Nagendra had also reached at the spot. The present accused threatened them with dire consequences and fled away from the spot. The injured was rushed to the Government Hospital, Jewar, thereafter the injured was referred to Bulandshahar Hospital by the Doctor. The matter was reported to the police by the informant at Police Station-Jewar and the case was registered and investigated by the police. After completion of investigation the Investigating Officer has submitted charge sheet against the accused and the cognizance was taken by the Magistrate and considering that the case was triable by the Sessions Judge and it was committed to the court of session and the session court charged the accused under Sections 307, 325, 504 and 506 I.P.C. The prosecution laid the evidence against the accused and the court after prosecution evidence examined the accused under section 313 Cr.P.C. and the accused submitted that they have been falsely implicated in the present case due to enmity but no evidence was laid by the accused in this regard in their defence. After considering the evidence available on record the trial court convicted the accused as aforesaid. Being aggrieved by the conviction judgment and order this appeal had been filed. The prosecution in order to prove its case examined five witnesses. PW1 Bhajan Lal, informant, PW2 Nagendra, injured, PW3 Ravindra, scriber of the FIR, PW4 S.I. Jagbir Singh, Investigating Officers of the case and PW5 Dr. Kishor Sagar, who had examined the injured. PW5 Dr. Kishor Sagar has examined the injured Nagendra who was at the time of incident about 58 years old. Doctor found a incised wound of about 1 cm x 0.3 cm x muscle deep incised wound left side back 4 cm above buttock. 3.5 x 0.7 cm x sharp deep incised wound left side 4 cm near shoulder. Blood was oozing. Doctor opined that both the injuries were caused by a sharp edge weapon. Doctor has also opined that both the injuries were inflected in the evening of 18.5.2000 at about 8:00 p.m. The investigation of the case was entrusted to PW4 S.I. Jagbir Singh. The I.O. has prepared the site plan and recorded the statements of the witnesses as well as injured. After completion of investigation, I.O. had submitted the chargesheet against the accused-appellant. The charge was framed against the accused-appellant who pleaded not guilty and claimed to be trial. 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 his defence. The accused in his statement recorded under Section 313 Cr.P.C. alleged that he has been falsely implicated in the present case due to village partibandi. After hearing the argument of the rival counsels, the accused was convicted as aforesaid by the trial court and this appeal was filed. Learned counsel for the appellant submitted that at present the accused is more than 70 years of age and he is suffering from age related ailments and he is not in a position to move properly. He next submitted that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submitted that it was the first offence of the accused 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 his age related ailments. He next submitted that it was the first offence of the accused/appellant 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. 2. Learned A.G.A. on the other hand has opposed the argument of learned counsel for the appellant and submitted that the conviction of the appellant is fully justified and no interference is required in his conviction, hence the appeal be dismissed and accused be directed to suffer the sentence. 3. 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. 4. 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. 5. 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. 6. In the case of Neelam Bahal and another 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. 6. 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. 7. 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 2007 about 12 years ago and now appellant is more than 70 years of age, both the parties are resident of same village, at this stage, this Court feels that it would not be proper to sent the accused-appellant to jail at the fag end of his life and the accused was on bail since 23.2.2009 and the accused has suffered the agony of conviction for more than 10 years and no criminal antecedents have been shown to his 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. 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. 8. Considering all the facts and circumstances of the case, the accused-appellant is sentenced to the period already undergone by him in jail during trial and an amount of fine of Rs. 1000/-be imposed instead of sending him to jail. 9. Accused-appellant 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. 1000/-be imposed instead of sending him to jail. 9. Accused-appellant 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. 500/- 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-appellant shall further undergo 15 days imprisonment. 10. Appeal is partly allowed in the above terms. 11. Copy of this order be transmitted to the concerned lower court forthwith for compliance.