Ram Kumar and others vs State

Shri Kant Tripathi, J.—Heard the learned Counsel for the appellants and the learned AGA for the State and perused the record.

The appellants, Ram Kumar, Mani Ram, Kadher and Puttu, have preferred this appeal against the impugned judgment and order dated 19.4.1982 rendered by IIIrd Additional Sessions Judge, Shahjahanpur, in S.T. No. 599 of 1981 (State v. Ram Kumar.and others) whereby the learned Additional Sessions Judge convicted and sentenced each of the appellants under sections 324/34, IPC to undergo rigorous imprisonment of six month. Each of the appellants has been again convicted and sentenced for the second charge under sections 324/34 IPC to undergo rigorous imprisonment of six month but both the sentences were directed to run concurrently.

The appellant No. 3, Kadher, and appellant No. 4, Puttu, have died during the pendency of this appeal. The appeal, therefore, abated against him.

The prosecution story is that in the Baisakh, before the date of occurrence, the marriage of the daughter of Gendan (brother of Rama, complainant) had taken place and appellant No. 3 Kadher was invited in the said marriage but he did not turn up whereupon Gendan and his brother Rama sent ''Parosa'' for Kadher but Kadher even returned the ''Parosa''. The occurrence took place on 10.7.1981. On that day there was Dashtaun of the grandson of appellant No. 3 Kadher at his house and there was a feast on the occasion given by Kadher at about 8 P.M. The complainant, his brother and father were invited to that feast but they did not go because Kadher had not come to attend their function. The dinner at Kadher''s house finished at 8 P.M. and immediately after it the appellants Kadher, Puttu, Ram Kumar and Mani Ram came to the house of Rama, complainant, and called him out from the house. At that time appellants No. 3 and 4 Kadher and Puttu were carrying Tamanchas, appellant No. 1 Ram Kumar was carrying a D.B.B.L. gun and appellant No. 2 Mani Ram was carrying a muzzleloading double barrel gun. Appellant No. 3 Kadher asked the complainant as to why he did not come to his house. The complainant replied that they had not come because he (Kadher) did not come to his house. In the mean time the appellant No. 3 Kadher started abusing him and also grappled with him. The appellant No. 2 Mani Ram started abusing him. He raised an alarm and escaped from the grip of appellant No. 3 Kadher and started running raising an alarm. He reached in the middle of the EastWest Rasta at the NorthEast of his door. On his alarm his brothers Chandra Pal and Gendan, father Budhai and witnesses Kallu, Prem and Het Ram also arrived there. The appellant No. 2 Mani Ram exhorted, ''Mar do sale ko jaaney na paye." Thereupon appellant No. 1 Ram Kumar fired a shot. Appellant No. 3 Kadher and appellant No. 4 Puttu also fired by their respective firearms. The complainant, his brothers Gendan and Chandrapal, father Budhai sustained injuries besides strangers Niranjan and Smt. Ketuki. Roopa, Parbat and Karan accused also came there and joined appellant Mani Ram and Kadher. Out of them Roopa and Karan were carrying Kantas. Parbat accused pelted bricks on the complainant party. The accused persons went away when the villagers challenged them. The complainant went to the P.S. Nigohi and lodged the FIR ExKa1 at 2.50 A.M. on 11.7.1981.

All the injured were referred to PHC Nigohi for medical examination. Dr. K.M. Tiwari examined the injured persons.

The injured Rama had sustained the following Injuries:

(I) Lacerated wound 2x2 m.m. on front side of patela, right side, (II) Abrasion of 2 x 1/2 m.m. on outer side right knee joint, (III) Lacerated wound 2x2 m.m. outer side of right leg 14 c.m. below the right knee joint,

(IV) Lacerated wound 2x2 m.m. on inner side of right leg, 19 c.m. above the medial malleolus of right side.

(V) Lacerated wound 1x1/2 c.m. horizontal on medial side of left thigh, 29 c.m. above the loft knee joint, foreign body left, 1/2 medial to the injury No. 5.

(VI) Lacerated wound 2x2 m.m. outer side of left leg 14 c.m. below the knee joint. Injuries No. 1, 3 to 6 were kept under observation. Advised Xray, caused by fire arm. Injury No. 2 simple in nature and caused by blunt object, say pellets of fire arm rabierioD olni 9

The injured Budhai had sustained the following injuries:

(I) Lacerated wound 2x2 m.m. on medial side of right leg. 11 c.m. below the right knee joint.

(II) Lacerated wound 2x2 m.m. on medial side of right thigh 10 c.m. above the right knee joint.

(Ill) Lacerated wounds/abrasions

three, 2x2 m.m. on medial side of right foot 7 c.m. in front of medial malleolus of right side.

(iV) Lacerated wound 2x2 m.m. on medial side of right side 6 c.m. below the medial malleolus of right side.

(V) Lacerated wound 2x2 m.m. on outer side of left leg, 12 c.m. below left knee joint.

(VI) Lacerated wound 2x2 m.m. outer side of left leg 14 c.m. below left knee joint.

(VII) Lacerated wound 2x2 m.m. on medial side of right forearm 8 c.m. below the right elbow joint. All the injures were kept under observation. Advised Xray, caused by fire arm.

The injured Niranjan had sustained the following injuries:

(I) Abrasion 1/2 x 1/2 c.m. on front side of left thigh 14 c.m. above the left knee joint.

(II) Abrasion 1/2 x 1/2 cm. on medial side of right leg, 12 c.m. above the medial malleolus of right side.

All the injuries were kept under observation. Xray was advised. They could be caused by friction of pellets from fire arms.

The injured Gendan had sustained the following injuries:

(I) Tender swelling with blackening of lower lid of right on right side of face, with abrasion 2x1 c.m. on right side of face just lateral to the nostril right side.

(II) Lacerated wound 2x2 m.m. on medial side of right leg 5 c.m. below the right knee joint. (Ill) Lacerated wound 2x2 m.m. on left side of scrutum 2 c.m. from base of penis.

Injuries No. 2 and 3 were kept under observation. Advised Xray, caused by fire arm. Injury No. 1 was simple in nature and caused by blunt object, may be of blunt end of brick.

The injured Smt. Kituka had sustained the following injuries:

(I) Abrasion 2x2 m.m. on lateral malleolus, left side.

The injury was kept under observation, caused by blunt object. Advised Xray.

The injured Chandrapal had sustained the following injuries:

(I) Lacerated wound 1/2 x 1/2 c.m. on right side of face 2 c.m. below the corner of right eye. (II) Lacerated would 2x2 m.m. on right side of face 2 c.m. below the injury No. 1.

All the above injuries were kept under observation. Advised Xray, caused by fire arm.

During the trial the prosecution examined PW1 Dr. K.N. Tiwari who has proved the aforesaid injuries.

P.W. 2, Rama, P.W.3, Chandrapal and P.W.4 Niranjan, who are injured witnesses, have supported the prosecution story. P.W.5, Ram Bharosey Verma, who is the investigating officer, has given evidence of formal nature.

The Xray report, Exhibit Ka13 to Ka18, were also produced during the trial whose formal proof was dispensed with by the learned Counsel for the appellants.

The appellants did not adduce any evidence in defence.

The learned Counsel for the appellants did not press the appeal so far as the finding of guilty recorded against the appellants is concerned. Moreover the finding of guilty seems to be based on proper appraisal of the evidence of injured witnesses, P.W.l, Rama, P.W.2, Chandrapal, and P.W.3, Niranjan, duly corroborated by the medical evidence of P.W.l, Dr. K.N. Tiwari as well as Xray reports Exhibit Ka13 to Ka18. The learned Trial Court has given cogent reasons for believing the statements of the injured witnesses. In view of the fact that the learned Counsel for the appellant did not press the appeal against the finding of guilt, the conviction of the appellants No. 1 and 2 for the offences under sections 324/34, IPC is liable to be sustained.

The appellant Nos. 1 and 2 have already remained in jail for about four months.

The learned Counsel for the appellants submitted that the sentence, in view of the facts and circumstances of the case, is very excessive. The appellant No. 2 was about 60 years during the trial is presently aged about 90 years and the appellant No. 1 is also aged about 51 years at present. It was also submitted that when the sentence of fine is permissible in regard to the offence under section 324, IPC, it would not be proper to record the sentence of imprisonment against the appellants after about 29 years of the occurrence when one of them has reached the age of 90 years.

In my opinion the aforesaid submission has sufficient merit. When the offence under section 324, IPC is punishable either with fine or with imprisonment or with both, and the appellants have already remained in jail for few months, it is not proper to send them again in jail after about 29 years of the occurrence especially when they have became quite old. The proper course in such a situation is to inflict the punishment of fine only. As such the ends of justice would be met if only the sentence of fine is imposed on both the appellants.

The appeal is partly allowed. The conviction of the appellant No. 1, Ram Kumar, and appellant No. 2, Mani Ram, under section 324, IPC is confirmed but the sentence of imprisonment, recorded against them is set aside. In place thereof each of them is sentenced to pay a fine of Rs. 3, 000/ and in default of payment of fine to undergo rigorous imprisonment of six months.

Let a copy of this judgment along with the lower Court record bet sent to the Sessions Judge, Shahjahanpur for compliance.