Bablu @ Yogendra Singh and Others vs State of Rajasthan

Mahesh Chandra Sharma, J.

Since these two appeals are arising out of a common judgment and order dated 2 6.7.95 passed by the Special Judge, SC & ST (Prevention of Atrocities) Cases, Sawai Madhopur, they are being disposed of by a common judgment.

Bablu @ Karan Singh along with three accused appellants have preferred this appeal against the judgment and order dated 26.7.95 passed by the Special Judge, Scheduled Caste & Scheduled Tribes (Prevention of atrocities) Cases Sawai Madhopur in Case No. (97/93) 112/94, whereby he convicted the accused appellant and sentenced him as under:

For the offence u/s 148 IPC 2 Years rigorous imprisonment, u/s 326 IPC 5 Years R.I. With fine of Rs. 1000/-, in default of payment of fine 1 year R.I, u/s 324/149 IPC 2 Years R.I and for the offence u/s 323/149 IPC 1 Year RI. ''All the sentences were ordered to run concurrently.

In Appeal No. 378/1995 In Sessions Case No. 97/1993 (112/94), the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Sawai Madhopur has convicted the accused appellant and sentenced him as under:

For the offence u/s 326/149 IPC for 5 Years R.I with fine of Rs. 1000/- in default of payment of fine, one Year R.I, for the offence u/s 324 and 324/149 IPC 2 Years R.I and for the offence u/s 323/149 IPC 1 Year R.I. All the sentences ordered to run concurrently.

The brief facts of the case are that one Shri Mishri Lal who has happened to be a member of Schedule Caste and the resident of Ward No. 21, Gangapur City submitted a written report on 6.11.1991 at 7.30 P.M. in Police Station Gangapur City that when they were offering prayers at about 7.00 P.M, neighboring boys i.e. the present accused appellants armed with Swords, Gandacies, knife and spears arrived and caused injury to the brother of the complainant Rameshwar on his right hand. The complainant himself along with Shrichand, Lala Ram. and Briju were also sustained injuries. The neighboring persons intervened and saved them.

Upon the aforesaid report, the police registered a case u/s 147, 148, 149 & 325 IPC along with Section 3/5 of SC/ST (Prevention of Atrocities) Act and started Investigation. After Investigation the police submitted a charge sheet u/s 147, 148, 149, 323, 324, 325 & 326 IPC before the Court of Addl. Chief Judicial Magistrate, Gangapur City who committed the case to Special Court SC/ST (Prevention of Atrocities) Cases Sawai Madhopur who framed charges u/s 147,148,149, 323,324, 325 & 326 IPC against the accused appellant.

The charges were read over and explained to the accused appellant denied all the allegations and claimed for trial.

During trial, the prosecution in support of its case examined as many as thirteen witnesses and got exhibited some documents. Thereafter, the statement of accused appellant were also recorded u/s 313 Cr.P.C. .

After hearing both the parties, the trial court convicted the accused appellants as indicated above vide it''s order dated 26th July, 1995.

Aggrieved against the judgment and order of conviction and sentence passed by the trial court dated 26.7:95, the accused appellants have preferred the present appeal with the prayer to quash the same.

In this appeal during the course of arguments, Mr. A.K. Gupta and Mr. Anil Khanna Advocates appearing on behalf of the accused appellants have made request to tills Court that they are not challenging the conviction part of the judgment of trial court, but they are only requesting to this Court that the sentence should be reduced for the period already undergone by them.

Learned Counsel for the accused appellants have drawn attention of this Court that the Incident took place approximately 18 years ago since then they are facing trial which itself tantamount punishment and they are facing mental agony. He further urged to this Court that the age of the accused appellants is more than 55 Years, the appellants are having family arid children are at marriageable age.

He further contended that the accused appellant Bablu remained in judicial lock up for 75 days, accused Manju 30 days, Mohan Singh @ Chhotu 45 days and accused Nathu Singh for 30 days respectively.

Learned Counsel for the appellants further relied upon a judgment delivered by the Apex Court in Naib Singh v. State of Punjab reported in 1986 Cr.LJ. 2061. The relevant portion of the said judgment reads as under:

Accordingly, the appeal fails and is dismissed. The judgment of the High Court after convicting the appellant u/s 32 6 of the Indian Penal code is upheld. As to the sentence, we are inclined to take a lenient view. We are informed that the appellant is a Teacher in a Government School. The circumstances brought out by the prosecution evidence show that he acted in the heat of the moment. Looking to the fact chat the incident occurred on April 22, 1973, some 13 years back, we do not think it desirable to send the appellant back to jail. We accordingly reduce the sentence of rigorous imprisonment for one year awarded by the High Court to imprisonment till the rising of the Court and pay a fine of Rs. 5,000/- or in default, to undergo rigorous imprisonment for a period of six months. The amount of fine shall be deposited in the Court of the Judicial Magistrate, First Class, Muktsar within a period of one month from today. The amount, if recovered, shall be paid to the complainant Darshan Singh by way of compensation. Appeal dismissed.

He further relied upon the judgment in Ayub and others Vs. State of Uttar Pradesh, , Hon''ble Apex Court held as under:

Penal Code (45 of 1860) Section 325 Grievous hurt-sentence- Occurrence taking place about 17 years before-Some of accused more than 7 6 years of age and one died- Besides some others receiving Injuries- Held, it was not fit where accused should be sent back to jail- Sentence reduced to period already undergone- However, fine of Rs. 200/- was imposed on each of them in and in default they were sentenced to one month''s imprisonment.

The relevant portion of the aforesaid judgment, in Para 7 their Lordships observed under:

Having regard to all these circumstances, we think that it is not a fit case where the appellants should be sent back to jail. In the result, while their convictions are affirmed the sentence is reduced to the period already Undergone. However, we impose a fine of Rs. 200/-on each of the appellants in default of which they will be sentenced to one month''s rigorous imprisonment.

Appeal is accordingly disposed of''.

Mr. Gupta further relied upon a judgment of Apex Court in Halke and Anr. v. State of M.P. reported in 1&4 Cri.L.J 1220, the Apex Court observed as under:

We have gone through the judgments of both the Courts and the relevant evidence. It is submitted by the counsel for the appellants that the prosecution has hot properly explained the injuries found on the accused persons and the circumstances show that the deceased party could have been the aggressors''. The evidence of the injured witnesses also show that the two appellants with sticks inflicted some blows on the deceased as well as on the two witnesses. In this context the medical evidence becomes very relevant. The occurrence is said to have taken place on 15.4.1974. The injured deceased was admitted in the Hospital and the doctor found four contusions. One of them was on the head. The necessary treatment was given and an operation was also performed and unfortunately the deceased died on 22.4.197 4. P.Ws. 1 & 19 were also examined by the doctor and similarly he found some lacerated wounds and some abrasions. Therefore to that extent the medical, evidence also corroborates the evidence of P.Ws. 1 and 9. Taking all circumstances into consideration we find that there must have been a fight and it is difficult to hold that the appellants while inflicting sticks blows had the knowledge that under the circumstances they were likely to cause the death of he deceased when they themselves have received the injuries at the hands of the prosecution party. Coming to the death of the deceased as noted already the medical evidence shows that the deceased was treated for nearly a week and an operation was also performed and he died only thereafter. No doubt the injury on the head proved to be fatal after lapse of one week but from that alone it cannot be said that the offence committed by the two appellants was one punishable u/s 304, Part-II IPC. The injuries found on the witnesses are also of the same nature and for the same they are convicted u/s 325 IPC. Having regard to the fact that the deceased died after one week the offence committed by them in respect of the deceased would also be the same, punishable u/s 325 IPC. In view of the peculiar facts and circumstances of this case we set aside the conviction of the appellants u/s 304, Part-II, IPC and the sentence of years R.I thereunder, instead we convict the appellants u/s 325 read with Section 345, IPC and sentence each of them to undergo nine months'' R.I. The conviction u/s 325 read with Section 34, IPC is confirmed but the sentence is reduced to nine month''s R.J. Both the sentences shall run concurrently. The is partly allowed.

Mr. A.K. Gupta lastly urged to this Court that In this case a lenient view should be taken in the light of the aforesaid judgment of Supreme Court.

Mr. B.N. Sandhu Public Prosecutor has arguments advanced by Mr. A.K. Gupta.

In the light of the judgment of Hon''ble Apex Court (supra) and looking to the facts and circumstances of the case, I am inclined to take a lenient view in the matter and I do not think It is a fit case where the appellants should be sent back to Jail.

In the result, I maintain the order of conviction passed by the trial court. But looking to the facts and circumstances of the case and the fact that the appellants have already undergone confinement for the period as indicated above, the ends of justice would be be met in sentencing them for the period already undergone by them in confinement.

The judgment and order dated 26.7.95 passed by the Special Judge, SC & ST (Prevention of Atrocities) Cases, Sawai Madhopur is hereby modified to the extent as indicated above.

These two appeals are partly allowed.