Subedar Upadhya and Others vs State of Bihar

Shivanugrah Narain, J.—All the 8 petitioners have been convicted u/s 379 of the Indian Penal Code and sentenced therefor, (as reduced by the Appellate Court) to one year''s rigorous imprisonment each. All petitioners have further been convicted under Sections 430 and 147 of the Penal Code. As reduced by the Appellate court the sentence of rigorous imprisonment imposed on each of the petitioners u/s 430 of the Penal Code is one year and u/s 147 three moths.

The prosecution case, briefly stated, is that in the night between the 21st and 22nd of October, 1967, the informant Uma Rai, Sattadar of Jethwar ''Fall'' along with others was sleeping and he woke up on hearing some sound; he found the petitioners armed with deadly weapons and removing the planks. The petitioners threatened the informant and his men and removed the planks with the result that water was diverted to their field for agricultural purposes. The defence of the petitioners was that they had been falsely implicated in the case. Both the courts below have held that the prosecution has proved its case beyond doubt and have accordingly convicted and sentenced the petitioners as aforesaid.

Learned Counsel for the petitioners has urged that he would press this application only on the question of sentence. It is urged by Sri S.C. Mishra, that the occurrence took place in the year 1967 and the main intention of the petitioners was to cultivate their own fields, and in 1967 there was severe drought, a lenient view should be taken. That 1967 was a period of severe, even unprcedented, drought is a fact of which judicial notice may be taken. And there is no doubt, on the prosecution case itself, that the intention of the petitioners in removing the planks was taking water from the canal to irrigate their fields. In the extraordinary situation prevailing in the year 1967, in my view, a lenient view on the question of sentence would be justified.

It appears that the petitioners, after their appeal was dismissed, surrendered in the court on 15.6.1976 and the order of this Court directing their release on bail was passed on 17.6.1976. In ordinary course they would be released only a day or two after the passing of the order for bail. In the circumstances of this case, I am not inclined to send back the petitioners to jail after a lapse of more than a year. In my opinion, the ends of justice would be served, if their sentences are reduced to the period of imprisonment already undergone by them and, in addition, it be ordered that each of them pay a fine of Rs. 50/- in respect of the convictions under each of the two Sections 379 and 430, Penal Code. And, I order accordingly.

With the aforesaid modfication in the sentences, the application is dismissed.