Saghir Ahmad And Another vs State Of U.P

Avnish Saxena, J

Heard Sri Salman Ahmad, learned counsel for the appellants, Sri Vinod Kumar Chandel, learned counsel for the informant and Sri Anuj Kumar Mishra, learned AGA for the State.

The present criminal appeal has been preferred under Section 374(2) CrPC by accused appellants Saghir Ahmad and Mohammad Iliyas on being aggrieved by the judgment of conviction and sentence dated 05.09.1985 in S.T. No. 616 of 1983 (State Vs. Saghir and another) wherein the appellants have been convicted for offence under Section 307 read with Section 34 IPC and sentence each of them for five years rigorous imprisonment.

Before adverting to the facts of the case, it would be expedient to mention that there is cross version of FIR. The injured in this case namely Smt. Dharmi has moved an application on 04.10.1986 before this Court along with an affidavit stating therein that the permission be granted to compromise the matter. It is mentioned in paragraph nos. 1 to 3 of the affidavit that the appellants have been wrongly convicted under Section 307 IPC though on the face of it Sections 324, 325 IPC is attracted. The relevant paragraph are reiterated underneath:-

"1. That the applicant Smt. Dharmi received minor/simple injuries in an occurrence which is said to have taken place on 24.05.1981. But under the pressure of the local police Hari Lal was compelled to lodge FIR against the appellants under Section 452/307 IPC and thus the correct facts were not disclosed. Even during the course of the trial the police threatened the applicant and other witnesses not to disclose the correct facts leading to an resulting in the occurrence.

That the injury received by Smt. Dharmi was not caused with an intention or knowledge to cause her death. In view of the facts and circumstances on record only offences under Section 324 and 325 IPC are made out. In the interest of justice conviction, of the appellants under Section 307/34 IPC is bad an liable to be set aside. The trial court has also observed that correct facts leading to the occurrence have not been disclosed by any of the parties.

That the injured (applicant) and the appellants have come to terms and have compromised the case. In case the compromise is accept and the applicant is permitted to compromise the case, the relation between the parties would become friendly and sweet. The tension between the two families and apprehension of any future trouble and dispute will come to an end."

This Court in order dated 03.09.1992 has granted permission and send the compromise for verification. The order dated 03.09.1992 is reiterated underneath:-

"Send the compromise to the C.J.M. Azamgarh for verification. The C.J.M. Azamgarh shall send it back after verification within two months from today. Office to take steps within three days."

In pursuance to the aforesaid order the application in original was sent to the court of Chief Judicial Magistrate, Azamgarh, who in order dated 25.01.1993 has verified compromise. The text of the verified compromise is reiterated underneath:-

The verified compromise received to this Court on 18.03.1993 and since then it is fixed for disposal.

The prosecution case in nutshell is that the informant Hari Lal has lodged the FIR on 24.05.1981 at 7:00 p.m., P.S.- Gambhirpur with the allegation against Saghir Ahmad and Illiyas that the informant is residence of Molanpur, P.S.- Rani Ki Sarai, District- Azamgarh. Udairaj and Balraj Chauhan of his village having their daughters of easy virtues. Saghir Ahmad and Illiyas used to meet the daughters, which has been objected by the villagers. Udairaj had instigated Saghir Ahmad on which Saghir Ahmad and Illiyas came to the village where the villagers were attending marriage party in the house of Sahab Ali Chauhan where Saghir Ahmad, Illiyas and unknown person came and asked for Ram Pyare. Sahab Ali's wife raised hue and cry on which several ladies of village came. Illiyas has opened fire. Smt. Dharmi Devi, suffered gunshot injury.

In the prosecution Hari Lal and Dharmi Devi were produced as PW-1 and PW-2; whereas Dr. B.Das the Medical Officer has been produced as PW-3, the Doctor who found injuries on the person of Dharmi Devi suffered due to gun shot. Smt. Surji has been produced as PW-4 and Sub-Inspector Yashpal Singh has been produced as PW-5.

It is the contention of learned counsel for appellants that the parties are of same village. The matter is nearly 45 years old. The parties have settled their dispute through compromise in the year 1992 and there is no point in moving with the conviction of the accused appellants, who are presently the senior citizens of nearly 80 years of age, hence, prayed for an order of modification of sentence that the appellants shall be released on undergone.

Learned AGA, though argued that there is cross fight wherein both the accused and informant suffered injuries, which establishes the guilt, but concedes that there is compromise between the parties and the same is verified.

This Court has given thoughtful consideration to the rival submissions and considered some judgments on the point, which are dealt with in subsequent paragraphs.

In the case of Labh Singh v. State of Haryana [2012 LawSuit (SC) 255], Hon'ble the Supreme Court has taken the view, while considering the sentence awarded in the old case of 1985, wherein, all the accused are senior citizen by then, that no useful purpose would be served in sending the accused to jail. The relevant paragraph numbers 3 to 6 are reiterated underneath:

" 3. According to the impugned judgment passed by the High Court, Appellant 1 is more than 82 years of age and Appellants 2 and 3 are 72 and 62 years of age respectively.

This is an incident of 1985. The appellants have already undergone part of the sentence. Sending them to jail after a lapse of about 27 years, in the facts and circumstances of this case, would not be justified.

On a consideration of the totality of the facts and circumstances of this case, we are of the opinion that ends of justice would meet if we direct each of the appellants to pay Rs 1 lakh to the complainant/injured persons. We direct accordingly. Let the amount be deposited before the trial court within two weeks from today and after the amount is deposited, the trial court shall disburse the amount equally among the injured persons.

Consequently, the sentence of the appellants is reduced to the period already undergone by them, the impugned judgment is modified to the aforementioned extent and the appeal is partly allowed."

In the case of State of U.P. v. Siyaram [2010 LawSuit (SC) 897], Hon'ble the Supreme Court has considered the old case and propensity to false implication, took the view to compensate than to further incarceration. The relevant paragraph number 4 is reiterated underneath:-

"4. We have heard the learned counsel for the parties and have gone through the record. We are not inclined to interfere in the acquittal of Siyaram for the reasons recorded by the High Court, as the propensity to implicate falsely is not uncommon in India. We, however, do agree with Mr Dash that the reduction in the sentence in case of Jiya Lal to already undergone was somewhat inadequate but as the prosecution had been initiated in the year 1988, we are not inclined to interfere on the term of imprisonment. We, however, direct that the fine be increased to Rs 25,000 in all and in default of payment of fine the appellant Jiya Lal shall undergo 2 years' RI. The fine will be paid within three months from now to Banshi Lal, the injured and if Banshi Lal is not available, to his legal representatives."

In the case of George Pon Paul v. Kanagalet [2009 LawSuit (SC) 795], Hon'ble the Supreme Court considered the passage of time, as a relevant factor to consider. The relevant paragraph numbers 4 to 6 are reiterated underneath:-

"4. The only question that remains is whether the custodial sentence as was imposed by the trial court was adequate or not i.e. confinement till rising of the court.

It appears from record that the fine amount has been deposited and the amount which was directed to be paid to PW 2 has already been paid.

Considering this fact and the long passage of time, it would be appropriate to restrict the period of sentence to the period already undergone. The appeals stand disposed of."

In the case of Manjappa v. State of Karnataka [2007 LawSuit (SC) 706], Hon'ble the Supreme Court considered the long pendency of case and opined the adequate punishment would be the period of incarceration already undergone but enhanced the fine to be paid as compensation. The relevant paragraph numbers 14 to 16 are reiterated underneath:-

"14. At the same time, however, the fact remains that the High Court has reduced substantive sentence to a month and a half. It is also not in dispute that the appellant has undergone and has remained in custody for about fifteen days. Moreover, as on today, he is on bail. Hence, even though we are of the view that in the facts and circumstances of the case, provisions of Section 360 read with Section 361 of the Code are not attracted and Om Prakash [(2001) 10 SCC 477 : 2003 SCC (Cri) 799] does not help the appellant, it would not be appropriate now to direct the appellant to surrender and to suffer the remaining sentence for about a month. The incident is of 1997 and about 10 years have passed.

Keeping in view all the facts and circumstances, in our opinion, ends of justice would be met, if we order that the substantive sentence which the appellant has already undergone is held sufficient. We are also of the view that it would be appropriate if over and above the amount which the appellant herein has paid towards fine and also towards compensation to the injured victim, the appellant is ordered to pay an additional amount of Rs 10,000 (Rupees ten thousand only), to the complainant by way of compensation.

For the foregoing reasons, the appeal is partly allowed by holding that the sentence already undergone by the appellant is held sufficient and adequate in the facts and circumstances of the case. It is, however, ordered that the appellant will pay an additional amount of Rs 10,000 (Rupees ten thousand only) to the injured complainant within a period of one month from today over and above the amount of fine and compensation ordered to be paid by the courts below."

In the case of Ramesh v. State of U.P.[ (1992) 1 SCC 318], Hon'ble the Supreme Court has converted the offence of attempt to murder to the voluntary causing of grievous hurt in view of single injury and awarded punishment accordingly. The relevant paragraph numbers 3 and 4 are reiterated underneath:-

"3. The learned counsel for appellant has assailed the finding recorded by the High Court and the trial Judge and has urged that the appellant was implicated due to enmity. He urged that even though the High Court held that in the FIR the main part was specifically assigned to the appellant and one Jagat Singh but in the evidence it was confined to the appellant as the relations between the two were strained. The learned counsel further urged that the case of the prosecution was that the complainant was bitten by Jagat Singh and there being no injury of biting, the High Court committed an error in maintaining the conviction. We are not impressed by the argument. The learned counsel then urged that the High Court committed an error in convicting the appellant under Section 307, Penal Code, 1860. We do not propose to decide it as a matter of law. But we agree with the learned counsel for the appellant that in peculiar circumstances of the case it being a case of single injury in the back of neck the conviction can be altered to be under Section 324, Penal Code, 1860.

In the result the appeal succeeds and is allowed in part. The conviction under Section 307/34, IPC is converted to under Section 324, IPC and the sentence is reduced to the period already undergone. The appellant shall deposit a sum of Rs 3000 as fine within six months which shall be paid to the complainant. In default of payment he shall serve out the entire sentence. On deposit of fine the bail bond shall stand discharged."

There is judicial discretion attached to reasoned sentencing. In the cases of State of Madhya Pradesh Vs. Bablu[(2014) 9 SCC 2811] and Abdul Waheed Vs. State of Uttar Pradesh [(2016) 1 SCC 583], Hon'ble the Supreme Court observed solemn duty of the Courts while imposing sentence that the same would be just, adequate and proportionate to the gravity of offence. Further observed that undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of system. Considering those principles the trial court rightly evaluated the role of the sole surviving appellants and adequately sentenced them on 05.09.1985 with just and adequate punishment. This Court in appeal has granted bail on 06.09.1985 and since then the surviving appellants are enlarged on bail. Now the point of concern is whether it would be rightful decision by appellate court to send the accused to serve the remaining sentence after elapse of 41 years.

The incident occurred 45 years back. There is nothing on record to show that the accused appellants were habitual criminals. Sending the appellants to jail will not serve the purpose of basic principles of the law of punishment, which in India is not corporeal in nature but reformative in its form. The intention of legislature in considering the act, conduct and behaviour of convict for remission also evinces the same principle.

Therefore considering, the dictums of Hon'ble the Supreme Court; the analogy drawn up from the facts of the case; and involvement of the appellants, their role in the occurrence vis-a-vis their age at the time of incident and as on date, this Court is of the view that the judicious and purposeful punishment would be to modify the punishment as below:-

19.1. The sentence awarded to accused appellants Saghir Ahmad son of Faujdar, r/o Village Anwak, P.S.- Rani Ki Sarai, District Azamgarh and Mohammad Iliyas son of Mohammad Idris, r/o Village- Bhelkhara Jamalpur, P.S.- Rani Ki Sarai, District- Azamgarh, is reduced to the period already undergone by them in S.T. No. 616 of 1983 (State Vs. Saghir and another) for offence under Section 307 read with Section 34 IPC.

The appeal is therefore partly allowed on the point of sentence, which is modified.

The appellants are on bail. Their bail bonds and sureties are discharged.

Record be returned forthwith as per Rules.