Jagdish and Others vs State of U.P.

Vinod Prasad, J.—The three revisionists Jagdish, Mai Dayal, Neksoo have filed this revision challenging their conviction under Sections 325/34 and 323/34, I.P.C. and sentences of six months R.I. on first count and one month R.I. on second count recorded in, State v. Jagdish and Ors. Case No. 85 of 1983, by Vth Munsif Magistrate, Badaun. The two appeals preferred by them being Criminal Appeal No. 244 of 1984 connected with Criminal Appeal No. 246 of 1984 were dismissed by Vth Additional Sessions Judge, Badaun by a common judgment dated 28.5.1985, confirming their said conviction and sentences recorded by the trial court. Hence, this revision.

The prosecution case incapsulated was that on 2.11.1982 at 7.30 a.m. in village Kaulhai, P.S. Sahaswan, district Badaun, accused Prabhoo Dayal, Mai Dayal, Neksoo and Jagdish belaboured the informant Hari Babu and his daughter Somwati, on the pretext that the field, which was being tried to be irrigated by the informant belonged to the accused and they will not permit the informant to irrigate it. F.I.R. was followed by an investigation which resulted into the charge-sheet against the revisionists accused. On 13.7.1983, Vth Munsif Magistrate, Badaun framed the charges against the accused under Sections 325/34 and 323/34, I.P.C. The prosecution, in support of its case, examined P.W. 1 Hari Babu (informant of the case), P.W. 2 Smt. Somwati (injured), P.W. 3 Dr. R. C. Arya (who had examined the informant and Somwati on 2.11.1982 at 9.30 a.m. and 10.00 a.m. respectively). P.W. 4 Khushi Ram, P.W. 5 Chandrapal Singh, Investigating Officer of the case and P.W. 6 Dr. I. P. Gupta had conducted the X-ray of the forearm of Smt. Somwati and had found a fracture of her ulna bone.

The accused in their statements u/s 313, Cr. P.C. denied the incriminating circumstances appearing against them and pleaded the defence of false implication.

Finding the case of the prosecution to be proved to the hilt, the trial court convicted all the four accused revisionists Jagdish, Mai Dayal, Prabhu Dayal and Neksoo for offences under Sections 325/34, I.P.C. and 323/34, I.P.C. and sentenced them as mentioned above. Aggrieved by their conviction and sentences recorded by the trial court accused Jagdish filed Criminal Appeal No. 344 of 1984 and rest of the accused Mai Dayal, Prabhu Dayal and Neksoo filed Criminal Appeal No. 346 of 1984 before the Sessions Judge, Badaun. Both the appeals were heard together and by a common judgment dated 28.8.1985, both the appeals were dismissed by the lower appellate court. Hence, this revision for setting aside the convictions and sentences implanted on the revisionists by both the courts below.

In the backdrop of the said facts, I have heard Sri Ghanshyam Joshi, learned Counsel for the revisionists as well as learned A.G.A. in opposition. Since Mai Dayal had died, as per the report of the concerned police station dated 3.10.2004, which has been sent to this Court through C.J.M., Badaun, the revision in his respect stands abated and is dismissed as such.

Learned Counsel for the revisionists for rest of the malefactors did not challenge the findings of fact and conviction recorded against them by both the courts below. He, however, argued only on the question of sentence awarded to the revisionists and submitted that the incident had taken place in the year 1982 and twenty three years has elapsed since then and keeping in view the fact that the revisionists had caused simple injuries but for one on the hand of Smt. Somwati, it will not be proper now to send them to jail at this belated stage when they had no bad antecedents and in fact were under mistaken impression of right to property. He further submitted that this revision was filed in this Court in the year 1985 and twenty years has elapsed since then. He, therefore, pleaded that their jail sentences be commuted into fine or they should be freed on admonition or they should be set at liberty with period of sentence already undergone.

The learned A.G.A. on the contrary submitted that both the trial courts have found the revisionists guilty of offences and the sentenced passed by them is towards the lenient side and is not excessive and therefore, it should not be interfered with.

I have considered the arguments of both the counsels. The incident is more than two decades old and even at the time when the evidence of the injured Somwati was recorded she was already married. The revisionists have suffered mentally, economically and the agony of trial sufficiently because of the pendency of the revision in this Court for more than two decades. The revisionists also do not have any criminal background and they by mistaken fact had assaulted the injured. Moreover, this was their first crime. Under such circumstances I consider it proper not to send them to jail at this belated stage and instead consider it proper in the interest of justice to sentence them with fine only.

The revision is partly allowed. While confirming the conviction of the revisionist Jagdish and Neksoo under Sections 325/34, I.P.C. and 323/34, I.P.C. their sentences are altered to the period of imprisonment already undergone by them and to pay fine of Rs. 5,000 each. Out of the amount of fine to be realized from them Rs. 4,000 (four thousand) is directed to be paid to Hari Babu, informant and if he is dead then to the injured Smt. Somwati. In the event of default in payment of fine by the two revisionists they shall undergo the sentences imposed on them by the lower trial court. The revisionists are allowed one month time to deposit the amount of fine awarded to them from the date of issuance of warrant of realization by the trial court. After the said realization their bail bonds and surety bonds shall be discharged by the C.J.M., Badaun.

Let the copy of this order be sent to the trial court for compliance of this order. The trial court is directed to report compliance within a period of three months from the date of the receipt of this order.