Ibad Ullah and Others vs State of U.P.

N.S. Gupta, J.—Accused Appellants Ibad Ullah, Mati Ullah, Farid and Ashiq, named above who were convicted under Sections 325/34, I.P.C. and 323/34, I.P.C. vide judgment and order dated December 10, 1979 by Sri P.K. Dixit, the then IVth Additional District and Sessions Judge, Shahjahanpur and were sentenced to undergo R.I. for a period of five years each under the first count and for one year each under the second count have come up in appeal before this Court.

The prosecution claimed that on 18.1.78 at about 7.00 a.m. in Village Udaipur Moora within the circle of Police Station Mirzapur district Shahjahanpur, the accused Appellants, in furtherance of their common intention, had assaulted Shafiq, Irfan and Sabir Husain and caused grievous and simple hurt to them. Shafiq is said to have died on 20.1.78 in consequence of the injuries caused to him by the accused persons. The accused Appellants were accordingly prosecuted u/s 302/307/34, I.P.C. After needful trial into the matter, the learned trial Judge found the accused Appellants guilty u/s 325/323/34, I.P.C. He accordingly convicted and sentenced them as aforesaid. The accused Appellants felt aggrieved by the said judgment. Hence the appeal.

I have heard Sri P.N. Misra, learned Counsel for the Appellants and Sri V.B. Singh, learned Addl. Government Advocate for the State; considered their contentions and have gone through the facts and circumstances of the case.

Sri P.N. Misra, learned Counsel for the accused Appellants did not press before this Court on the merits of the case. He only submitted that a period of about 18 years having elapsed since the date of occurrence of this case, a lenient view in the matter of sentence be taken by this Court and that the accused Appellants be let off on the basis of the sentence undergone by them and after imposing a token fine of Rs. 4.000 each. It was further argued on behalf of the accused Appellants that the complainant Sabir Husain who was the maker of the F.I.R. and who was one of the injured, and the accused Appellants, have since arrived at a compromise. The learned Counsel for the accused Appellants argued that he also tried to compound the matter with the legal heirs of the deceased Shafiq Ahmad but they were not available. Reliance was placed upon the following rulings: Duli and Ors. v. State of U.P. 1991 (XXVIII) ACC 628 to 634, decided by Mr. Justice H.C. Mittal and Mr. Justice V.K. Verma of this Court and Paruswaman v. State of Tamil Nadu 1991 (XXVIII) ACC 605 decided by Hon''ble Mr. Justice Kuldeep Singh and Hon''ble Mr. Justice M.M. Punchhi, of the Supreme Court of India. I have given my thoughtful consideration to the submission made by the learned Counsel for the Appellants as also the observations made by the Hon''ble Supreme Court and the judgment of this Court in the rulings referred to above.

It is clear from the statement of Sabir Husain P.W. 1 and Azam Khan P.W. 2 that all the four accused Appellants, namely, Ibad Ullah, Mati Ullab, Farid and Ashiq, in furtherance of common intention of each other had voluntarily caused hurt to Safiq, Irfan and Sabir on 18.1.78 at about 7.00 a.m. in Village Udaipur Mora, P.S. Mirzapur district Shahjahanpur and that in consequence of the hurt caused, Shafiq Ahmad had died on 20.1.78. According to the medical evidence of Dr. R.C. Asthana, the following injuries were found on the person of Shafiq, Irfan and Sabir:

Injuries of Shafiq Ahmad:

Lacerated wound 4. 5 cm. x 0.5 cm. x 0.5 cm. on the top of skull.

Contusion 4 cm. x l cm. on the left eyebrow.

3 Contusion 12 cm. x 2.5 cm. on the lateral aspect of the left side chest.

4 Contusion 4 cm. x 1.5 cm. on the lateral aspect of left side of gluted region.

Patient was semiconscious. Not responding to the questions. Pupil of both side were unequal in size. Lt. Pupil was more dilated than Rt. side.

Injuries of Sabir Husain:

Lacerated wound 4 cm. x 1.2 cm. x scalp deep on the Lt. lateral-aspect of the skull.

Contusion 3 cm. x 1.5 cm. on the posterior aspect middle part Rt. arm.

Injuries of Irfan:

Lacerated wound 6.0 x 0.8 cm. x bone deep on the arterier aspect of the skull.

Contusion 2 cm. x 1 cm. on the front of nose.

Abrated contusion 5 cm. x 1.5 cm. on the top of Lt. shoulder.

Contusion 5 cm. x 2 cm. on the lateral aspect middle part Rt. arm.

Contusion 4 cm. x 2 cm. on the top of Rt. shoulder.

Contusion 11 cm. x 1.5 cm. on the Lt. side chest.

Contusion 3 cm. x 1.5 cm. on the posterior aspect lower part of Rt. forearm 3 cm. above the writ.

The records of the case reveals that inspite of the charges under Sections 302/34 and 307/34, I.P.C. having been framed, the trial Court has found the accused Appellants guilty only u/s 325/323/34, I.P.C. The finding of fact recorded by the Trial Court that the accused Appellants were guilty of causing grievous hurt to Sri Shafiq Ahmad and simple hurt to Irfan and Sabir, find full support from the evidence of the witnesses of fact, namely, Sabir Husain P.W. 1, Azam Khan P.W. 2 as also the medical evidence of Dr. R.C. Asthana and I find no cause to differ with the same.

True it is that there is no evidence on record to suggest as to who caused fatal injuries to Shafiq yet the fact remains that Shafiq, the deceased and other injured persons, viz., Irfan and Sabir were assaulted by all the four accused Appellants and, therefore, all of them were vicariously liable and were rightly convicted by the Court below.

Now coming on the point of sentence, I find that Section 325, I.P.C. lays down that the offence of voluntary causing grievous hurt shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine. So the offenders guilty of offences punishable u/s 325, I.P.C. are to be necessarily punished with imprisonment and also with fine.

It was pointed out to me by the learned Counsel for the accused Appellants himself that the accused Appellants have undergone imprisonment only for a week or so at the trial stage.

Keeping in view the number and nature of injuries caused and the fact that in consequence of the injuries caused, Shafiq Ahmad had died after two days, and having due regard to the fact that a period of about 18 years has since elapsed after the date of occurrence of the case and the observation of the Hon''ble Supreme Court and this Court, I am of the opinion that it will meet the ends of justice if the accused Appellants are sentenced to undergo R.I. for a period of one year and to pay a fine of Rs. 5,000 and in default of the payment of the same, to undergo R.I. for a period of six months each u/s 325, I.P.C. and to pay a fine of Rs. 2,000 each and in default of the payment of the same, to undergo simple imprisonment for a period of three months each u/s 323/34, I.P.C. The accused Appellants are granted two month''s time to deposit these fines. It is directed that if the fine is deposited as aforesaid, a sum of Rs. 1,500 shall be paid to the injured Sabir Husain and Rs. 1,500 to the injured Irfan as compensation for their injuries. It is further directed that a sum of Rs. 2,500 shall be paid to the legal heirs of Shafiq Ahmad as compensation for the injuries caused to Shafiq Ahmad.

Thus, while sustaining the conviction of the accused Appellants u/s 325/323/34, I.P.C, the sentence imposed by the trial Court on the accused Appellants is modified as aforesaid.