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2020 DIGILAW 832 (ALL)

Aklakh Khan @ Eklakh Ahmad v. State of U. P.

2020-05-04

AJIT SINGH

body2020
JUDGMENT : 1. This criminal appeal has been filed against the judgment and order dated 18.12.2017 passed by Additional Sessions Judge, Court no. 1, Kannauj in S.T. No. 173 of 2014, under Section 307 IPC, Police Station Chhibramau, district Kannauj, whereby learned Judge convicted and sentenced the appellant to five years rigorous imprisonment with fine of Rs. 10,000/and in default of payment of fine, the appellant was further directed to undergo three months rigorous imprisonment. 2. As per FIR which was lodged by the complainant Bilkisa wife of Mohd. Shakeel (injured) and it was mentioned in the FIR that on 10.6.2013 at about 8.00 p.m. when the husband of the complainant namely Mohd Shakeel was coming to his village after closing his shop then near the field of Vishnu Dayal due to old enmity Aklakh Khan @ Eklakh Ahmad son of Amir Bux, Salamat son of Deen Mohammad, Aslam and Saleem son of Abdul Waheed residents of Seemant Nagar Kasba and police station Gushaiganj, district Kannauj caught the husband of the complainant and on the exhortation of Salamat, Aklakh attacked the husband of the complainant with firearm and the complainant's husband received gun shot injury on his shoulder. It was also mentioned that after the incident the injured was sent to the hospital then the injured was referred to Halat Hospital, Kanpur and report of the incident was lodged. 3. The matter was reported to the police by the informant at Police StationChhibramau and the case was registered and investigated by the police. 4. After completion of investigation the Investigating Officer has submitted charge sheet against the accused persons and the cognizance was taken by the Magistrate and considering that the case was triable by the court of Session, it was committed to the court of session and the session court charged the accused persons under Sections 307/34 I.P.C. 5. In order to prove its case the prosecution has examined five witnesses PW1 Shakeel, PW2 Smt. Bilkees (complainant), PW3 Constable Ram Chandr, PW4 S.I. Shyamvir Singh, PW5 Dr. Abhishek Kumar. Dr. Vinay Kumar was examined as formal witness. 6. PW5 Dr. Abhishek Kumar Katiyar has examined the injured Shakeel Ahmad who was at the time of incident about 45 years old. Doctor found multiple lacerated wounds in size 18.0 cm x 8.0 cm x Dept not due to probing. Size of laceration is 4.0 x 3.5 cm. Abhishek Kumar. Dr. Vinay Kumar was examined as formal witness. 6. PW5 Dr. Abhishek Kumar Katiyar has examined the injured Shakeel Ahmad who was at the time of incident about 45 years old. Doctor found multiple lacerated wounds in size 18.0 cm x 8.0 cm x Dept not due to probing. Size of laceration is 4.0 x 3.5 cm. Margin inverted overt in shape charring present. Injury KUO advise xray chest. 7. After the closure of prosecution evidence, the statements of the accused persons were recorded under Section 313 Cr.P.C., in which they denied the charges leveled against them and stated that they have been falsely implicated in this case due to enmity with the police. 8. However, learned Additional Sessions Judge, Kannauj after assessing and evaluating the evidence adduced by the parties, acquitted three named accused Salamat, Aslam and Salim and convicted and sentenced the present accused Eklakh Khan @ Eklakh Ahmad as indicated herein above. Being aggrieved by the conviction judgment and order this appeal had been filed. 9. Heard Sri Mohammad Arshad Khan, learned counsel for the appellant, Sri Dinesh Kumar Srivastava and Sri Ram Adhar Ram, learned A.G.A. for the State and perused the record of the case. 10. At the very outset, Sri Mohammad Arshad Khan, learned counsel for the appellant, 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 appellant. 11. Learned counsel for the appellant has argued that the appellant is not a previous convict; he is an old man aged about 65 years and he is suffering from age related ailments and; that there is no bread earner in the family of the appellant. 12. Learned counsel for the appellant further submits that the appellant was awarded five years rigorous imprisonment and that he has already undergone about three months and five days before conviction and two years, one month and six days after conviction, meaning thereby that he has undergone about two years four months and eleven days of the awarded sentence. 13. Sri Dinesh Kumar Srivastava and Sri Ram Adhar Ram, learned A.G.A. on the other hand have stated that they have no objection if the Court considers the mitigating circumstances. 14. 13. Sri Dinesh Kumar Srivastava and Sri Ram Adhar Ram, learned A.G.A. on the other hand have stated that they have no objection if the Court considers the mitigating circumstances. 14. Since the learned counsel for the appellant has given up challenge to the findings of conviction and there is ample evidence including, deposition of injured, eyewitness account and medical report to base conviction, accordingly, the conviction of the appellant for the aforesaid offence stands affirmed. 15. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 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. 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." 16. 400/-. Period of imprisonment in case of default will remain the same." 16. In view of the facts and circumstances of the case and as substantial period already has undergone in prison by the appellant in this case and the fact that the appellant is an old person; he is suffering from age related ailments; that there is no bread earner in the family of the appellant and that he has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he wants to transform himself, I am of the considered opinion that he should be given a chance to reform himself. This Court considers that ends of justice would be served, if the sentence of appellant is reduced to the period already undergone by the appellant in this case and the amount of fine be enhanced to Rs. 20,000/. 17. Accused-appellant is directed to deposit the fine of Rs. 20,000/before learned lower court within six months from the date of passing of the judgment, which shall be paid to the injured as compensation. In case the accused appellant fails to deposit compensation within stipulated time, the Court below shall proceed against him in the light of judgment of the Hon'ble Apex Court reported in Kumaran vs. State of Kerala and another (2017) 7 SCC 471 . 18. Appeal is partly allowed in the above terms. 19. The accused is in jail. He shall be released from jail forthwith, if he is not wanted in any other case. 20. Copy of this order be transmitted to the concerned lower court for compliance. 21. Office is also directed to send back the record of the trial court immediately.