Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 931 (ALL)

Madan v. State of U. P.

2019-04-12

K.P.SINGH

body2019
JUDGMENT K.P. Singh, J. 1. This criminal appeal has been filed against a judgment and order dated 10.3.1983 passed by the learned Additional Sessions Judge, Agra in S.T. No. 154 of 1982 under Section 308/34 IPC, Police Station: Chhatta, District Agra whereby the learned Judge convicted and sentenced all the appellants to three months rigorous imprisonment and a fine of Rs. 150/- each under Section 323 read with Section 34 IPC. 2. The brief facts of the case are that a first information was lodged by the first informant Diwan Singh, who was examined as PW-2 in this case to the effect that while he was going to market taking milk from his house and when he reached near the rivulet, the accused were hiding there. Accused Madan was armed with country made pistol and rest were carrying lathi. Accused Madan instigated the other accused that Diwan Singh has lodged report against them, catch and beat him. Thereafter accused-Madan fired with his country made pistol, which missed. Thereafter, other accused namely Mukesh, Ramesh and Sunder Lal assaulted him with lathi. On the shrieks of the informant, the witnesses rushed to the spot and saved the informant. 3. After the registration of the case, the investigation of the case was entrusted to PW-6, SI- Ram Prakash Tiwari, who investigated the case and submitted charge sheet against the appellants under Section 308/34 IPC. 4. As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Agra framed the charge against the appellants under Section 308/34 IPC to which the appellants pleaded not guilty and claimed to be tried. 5. To bring home guilt of the appellants, the prosecution examined as many as six witnesses PW-1, Dr. S.P. Mishra, who had medically examined the injured opined that all the injuries received by the injured are caused by blunt object, like lathi. PW-2, Diwan Singh was the first informant and injured witness, who has fully supported the prosecution case. PW-3, Raffan, PW-4, Ram Babu and PW-5, Vinod were the witnesses of fact, who fully supported the prosecution case. 6. After the closure of prosecution evidence, the statements of the accused-appellants were recorded under Section 313, Cr.P.C. in which they denied the charges and stated that they have been falsely implicated in this case due to business rivalry:. 7. PW-3, Raffan, PW-4, Ram Babu and PW-5, Vinod were the witnesses of fact, who fully supported the prosecution case. 6. After the closure of prosecution evidence, the statements of the accused-appellants were recorded under Section 313, Cr.P.C. in which they denied the charges and stated that they have been falsely implicated in this case due to business rivalry:. 7. However, learned Additional Sessions Judge, Agra after assessing and evaluating the evidence adduced by the parties, convicted and sentenced the appellants as indicated hereinabove. 8. Hence this appeal. 9. Heard Sujan Singh, learned counsel for the appellants and Shri. G.P. Singh, learned Additional Government Advocate and perused the record of the case. 10. As appellant No. 4, Sunder Lal died during the pendency of this appeal, the appeal filed on his behalf abated vide order dated 05.2.2019. 11. In the present case, the charge was framed under section 308 read with section 34, IPC but the learned Additional Sessions Judge convicted the appellants under Section 323/34 IPC. 12. At the very outset, Sujan Singh, learned counsel for the appellants, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellants. 13. Shri. G.P. Singh, learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances. 14. Since the learned counsel for the appellants has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellants for the aforesaid offence stands affirmed. 15. However, on the quantum of sentence, learned counsel for the appellants has argued that the appellants are not a previous convict they are old men and that there is no bread earner in the family of the appellants. 16. Learned counsel for the appellants further submits that the appellants were awarded imprisonment of three months and that appellant Nos. 15. However, on the quantum of sentence, learned counsel for the appellants has argued that the appellants are not a previous convict they are old men and that there is no bread earner in the family of the appellants. 16. Learned counsel for the appellants further submits that the appellants were awarded imprisonment of three months and that appellant Nos. 2 and 3 namely Mukesh and Ramesh have already undergone 24 days after conviction and 52 days during pendency of this appeal as pursuant to non-bailable warrants issued by this Court, they have been arrested on 18.12.2018 and released on 07.02.2019 pursuant to the order of this Court dated 05.02.2019, meaning thereby that they have undergone about two months and sixteen days of the awarded sentence of three months. Moreover, appellant No. 1, Madan, who is aged about 64 years has also undergone about 24 days after his conviction. Learned counsel submits that appellant was only convicted with the aid of Section 34 IPC as he was assigned the role of firing, which missed. 17. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami vs. Delhi Administration, AIR 1973 SC 1457 , held as under: "Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member, of the society...Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs. 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same." 18. Considering the facts and circumstances of the case and the substantive period already undergone by the appellants in this case and the fact that the appellants are old persons; there is no bread earner in their family and that they have realized the mistake committed by him and are remorseful of their conduct to the society to which they belong and now they want to transform themselves, I am of the considered opinion that they should be given a chance to reform themselves and their better contribution to the society to which they belong to. 19. Consequently, the sentence is modified and the period already undergone by the appellants Mukesh and Ramesh in this case, i.e. two months and sixteen days is taken as substantive sentence under Section 323/34 IPC. So far as appellant Madan is concerned his substantive sentence is taken as 24 days under Section 323/34 IPC. 20. The appeal stands disposed of. 21. Office is directed to transmit a copy of this order to the learned Sessions Judge, Agra for compliance and compliance report be submitted to this Court also. 22. Office is also directed to send back the record of the trial court immediately.