Ram Dayal (In Jail) vs State of U.P.

G.S.N. Tripathi, J.—This revision arises out of judgment and order dated 24.4.96 passed by the learned Sessions Judge, Badaun in Criminal Appeal No. 57 of 1994, Ram Dayal v. State of U.P.By this order, the learned Sessions Judge has dismissed the appeal filed by the accused revisionist and thereby he confirmed the order and judgment passed by the learned II Ird Addl. Chief Judicial Magistrate, Badaun on 2.12.94.

The learned IIIrd Addl. C.J.M., Badaun had found the accused guilty on a charge u/s 323, I.P.C. and sentenced him to 6 months R.I. and to pay a fine of Rs. 500. On failure to pay the fine, the accused was awarded 3 months additional S.I. The accused was further found guilty on a charge u/s 325, I.P.C. and was sentenced to undergo S.I. for a period of 2 years and to pay a fine of Rs. 500. On failure to pay the fine, 3 months'' additional S.I. was awarded.

The incident took place on 8.8.88 at about 5 p.m. The accused Ram Dayal was digging earth and placing the same on his dunlop from the field of the victim Roshan. When Roshan objected, he was belaboured by the accused with kicks and fists. His wife Smt. Ram Devi came to his rescue. She was severely pushed away, whereby she received fracture in her forearm and wrist. Other witnesses arrived later on and the situation was saved.

The F.I.R. was lodged on the following day at about 9.30 p.m. The distance of the police station from the place of occurrence has not been noted.

The lady Smt. Ram Devi, P.W. 2 was medically examined. Swelling was found around her wrist. Therefore, radiological opinion was obtained. The radiologist report was that on the wrist joint, there was swelling and underneath there was a fracture of radius.

The Investigating Officer, after usual performance and investigation, laid down the charge-sheet against the accused.

The prosecution examined, P.W. 1 Roshan, complainant. He was narrated the entire story as contained in the F.I.R.

P.W. 2 Smt. Ram Devi is his wife. She has also narrated the entire incident as has been done by her husband.

The third witness is Naksu, P.W. 3. He has also supported the prosecution story. Efforts were made to prove that Naksu was a collateral of the complainant and therefore, not an independent witness. But that was rejected by both the courts below.

Both the courts below have accepted the prosecution version. The learned trial court after appraisal of the entire evidence and circumstances on the record and noting the demeanour of the witnesses, a privilege not available to the higher courts found the prosecution case worthy of credence. He accordingly accepted the prosecution version and sentenced the accused as noted above.

The matter was challenged before the learned Sessions Judge, Badaun in Criminal Appeal No. 57 of 1994. The learned Sessions Judge, after a threadbare discussion and analysis of the prosecution evidence and circumstances on the record, came to the conclusion that there was no force in the appeal and he accordingly rejected the same.

This revision has been filed u/s 397 of the Code of Criminal Procedure. Findings of fact have not been challenged before me. The only prayer made by the learned Counsel for the revisionist is that a leniency should be shown in the sentence. I may agree with the learned Counsel to some extent on this point alone.

The severity of the crime committed by the accused is quite simple. Firstly, he was digging earth in the land not belonging to him, rather belonging to the complainant Roshan, P.W. 1. When Roshan objected to it, he was kicked and fisted. Not only this, when his wife came to his rescue, she was pushed away so severely and bluntly that she received fracture in her wrist joint. Therefore, it cannot be said that the accused was doing an innocent act or he was behaving in a normal manner. It is quite believable that when the husband was being assaulted at the hands of the accused, his wife would come to his rescue. At least the accused should have stopped sort of pushing her and causing grievous injuries to her. But the accused did not relent. Therefore, he assaulted not only her husband but also his innocent wife, when she dared simply to save her husband from the assaults inflicted by the accused. In these circumstances, it must be believed that the accused was acting in a very high-handed manner and no leniency can be shown to him. However, since this appears to be a first crime committed by the accused, I think some leniency can be shown to the accused. Otherwise this revision has no force.

The appeal is dismissed with the following modifications:

The sentence u/s 323, I.P.C. is reduced to 3 months R.I.

Similarly the sentence u/s 325, I.P.C. is reduced to one years'' R.I.

The sentence of fine passed by both the courts below shall remain intact under both the sections aforesaid.

The revisionist is already in jail. He shall serve out the sentence as duly modified by this Court.