Alisher Kasai and Others vs State of U.P.

Raj Mani Chauhan, J.—Heard learned Counsel for the revisionist and learned Additional Government Advocate for the State as well as perused the documents available on record. With the consent of learned Counsel for the parties the revision is disposed of at the admission stage.

This Criminal Revision u/s 397(1)/401 of the Code of Criminal Procedure (hereinafter referred to as the ''Code'') has been preferred by the accused-revisionist-Alisher kasai, Aslam Kasai, Aqlaque Kasai, Afjal Kasai and Faiyaz Kasai against the judgment and order dated 12.10.2010 passed by Sri R.C. Misra, HJS, learned 1st Additional Sessions Judge, Gonda in Criminal Appeal No. 22/09 Alisher and Ors. v. State of U.P. whereby the learned Additional Sessions Judge has dismissed the appeal filed by the Appellants against the judgment and order dated 16.06.2009 passed by the learned 1st Additional Chief Judicial Magistrate, Gonda in Complaint Case No. 779/09/05 Shfi Ahmad v. Siddique Kasai and Ors. arising out of Complaint No. 779/09/05, under Sections 323, 504, 506, 452, 379, 427 IPC, P.S. Kotwali Colonelganj, District Gonda whereby the learned 1st Additional Chief Judicial Magistrate has held the accused guilty and consequently he has convicted and sentenced them accordingly as indicated below:

Under Section 323 IPC - Simple imprisonment for a period of six months and to pay fine of Rs. 500/ -.

Under Section 427 IPC - Simple imprisonment for a period of one year and to pay fine of Rs. 1000/ -.

Under Section 452 IPC - Simple imprisonment for a period two years and to pay fine of Rs. 2000/ -.

Accused Faiyaz Kasai also convicted u/s 379 IPC for a period of one year and to pay fine of Rs. 1000/ -.

All the sentences were ordered to run concurrently. In default of payment of fine, three months additional imprisonment.

As regards the finding of conviction, from a perusal of the impugned judgment and order passed by the learned Additional Sessions Judge as well as the learned Chief Judicial Magistrate, it appears that the finding of both the courts below are based on proper appreciation of the prosecution evidence which cannot be interfered with by this Court in revision while invoking its revisional power u/s 397 of the Code unless the finding is perversed. This court being revisional court cannot re-appreciate the evidence at this stage.

Learned Counsel for the accused-revisionist failed to show any perversity in the impugned order passed by the Trial Court and affirmed by the Appellate Court.

As regards the sentence awarded by Trial Court, learned Counsel for the revisionist submits that the accused were tried by the Trial Court under Sections 323, 504, 506, 452, 379, 427 IPC but the Trial Court did not find the charges under Sections 504/506 IPC proved consequently the accused were acquitted under Sections 504/506 IPC. In this way, the prosecution story has partly been disbelieved by the Trial Court which has been affirmed by the Appellate Court. The accused has already undergone about one month in jail. The accused have been held guilty under Sections 323, 427, 452, 379 IPC only. The complaint case relates to the year 2005 which was decided by the learned 1st Additional Chief Judicial Magistrate, Gonda vide order dated 16.06.2009. The accused preferred appeal against the conviction before the Sessions Judge which was decided by the learned 1st Additional Sessions Judge, Gonda vide order dated 12.10.2010. The accused-revisionist are five in number. They have already suffered a lot spending their precious time and money both in the long dragged litigation. The offences are of trivial nature. Keeping in view the nature of offence, the accused-revisionist are directed to serve out the sentence awarded by the Trial Court will not serve any fruitful purpose; rather it will be appropriate that the sentence be reduced to the period already undergone by the accused in jail as they have already suffered a lot and the amount of fine imposed by the Trial Court and affirmed by the Appellate Court be doubled.

Therefore, I do not find any illegality in the finding of conviction recorded by the learned 1st Additional Chief Judicial Magistrate as well as confirmed by the learned 1st Additional Sessions Judge which cannot be interfered with by this Court in the present revision.

Learned A.G.A. although supported the judgment and order passed by both the courts below but he has no objection in the modification of the sentence. He submits that the court may in its discretion modify the sentence awarded by the Trial Court which has been affirmed by the Appellate Court.

I agree with the submission of the learned Counsel for the revisionist with regard to the modification of the sentence.

Considered the submissions advanced by learned Counsel for the revisionist and learned A.G.A. for the State.

The accused-revisionist who are five in number have already suffered a lot in the long dragged litigation. Keeping in view the nature of offence, I am of the view that the sentence awarded by the Trial Court may be modified by this Court by reducing the sentence of imprisonment to the period already undergone by the accused in jail. It also appears proper that fine imposed by the trial court against each accused may be doubled. Accordingly, The revision may partly be allowed.

The revision is, therefore, partly allowed. The finding of conviction recorded by both the courts below is confirmed. The sentence awarded by the Trial Court is modified to the extent that the accused is sentenced to undergo the imprisonment for the period already undergone by them in jail and each accused are ordered to pay fine of Rs. 1000/ - u/s 323 IPC, Rs. 2000/ - u/s 427 IPC and Rs. 4000/ - u/s 452 IPC. Accused-revisionist (Faiyaz Kasai) will also pay fine of Rs. 2000/ - u/s 379 IPC. In case the accused failed to pay the amount of fine, they will further undergo simple imprisonment for three months.

The accused are directed to be released forthwith, if not wanted in any other case.

The accused are allowed 30 days time from the date of their release to deposit the amount of fine as detailed above in the Trial Court, failing which they will be arrested immediately after the expiry of period of 30 days from the date of their release and sent to jail to serve out the sentence awarded by this Court.

Let a copy of this order be sent to the Trial Court for strict compliance.