Surya Prasad and Ors. vs State of U.P.

D. K. Trivedi, J.—The present criminal appeal arises out of the judgment and order dated 2481984 passed by the IV Addl. Sessions Judge, Rae Bareli in Sessions Trial No. 206 of 1983 convicting the accusedappellants under Sections 147.323/149, I.P.C. and sentencing each of the to undergo R.I. for one year under Section 149, I.P.C. and six months R.I. under Section 323, I.P.C. read with Section 149, I.P.C. Both the sentences were directed to run concurrently.

According to the prosecution case, the incident took place on 23111982 at about 11 p.m. in village ChhitaunaMariyana, P.S. Muslafabad, District Rae Bareli. It is alleged that when the complainant was going to his field on 23111982 at 3 p.m., situate in village Chhitauna Mariyani, the accusedpersons armed with Lathis and Dandas met him at the out skirt of the village and started hurling abuses. The accused also stated that it was he who led the procession of children against him (Surya Prasad) and thereafter, started beating him with Lathi and Danda. It is said that Babu Lal tried to save Ram Gopal (complainant) but he was also beaten by them. On hue and cry several persons reached there and witnessed the incident and on the arrival of the witnesses the accusedpersons also ran away. The injuries of both the injured persons namelym Ram Gopal and Babu Lal were also examined on the same day between 5.05 p.m. to 5.35 p.m.

The prosecution in support of its case, examined as many as six witnesses; out of them P. W. 1 Ram Gopal and P. W. 2 Smt. Phool Mati and P.W. 3 Babu Lal are the witnesses of fact. P.W. 4 Dr. Virendra Kumar has proved the injury reports of Ram Gopal and Babu Lal Exts. Ka3 and Ka4. P.W. 5, S.I. Ram Lakhan Singh has conducted the investigation of this case. P.W. 6 Constable Mohd. Rais has proved the G.D. entries.

On the other hand the accusedpersons denied the prosecution case and on behalf of accused Chaturi Prasad it has been alleged that Ram Gopal and Babu Lal alongwith (bur other persons came to the door of Surya Prasad and after dragging Chaturi, he was beaten by them. It is said that Chaturi in the right of self defenee, had used Danda.

The defence also examined four witnesses namely: D.W. ] Dr. A.K. Garg who examined Chainri and proved the injury report Ext. K.ha2, D.W. 2 Dr. M.M. Pratap proved the Xray report Ext. Kha3, D.W. 3 Dr. U.C. Tripalhi proved that as Surya Prasad was ill on the date of the incident, therefore, he could not take part in the said offence. D.W. 4 Surya Prasad was himself examined to tried to prove the defenee ease and D.W. 5 Gulab Singh was also examined to support the defenee ease.

The learned Sessions Judge after considering the evidence adduced by the parties, came to the conclusion that the prosecution case is much more probable than the defenee case and the testimony of the eyewitnesses examined by the prosecution is trust worthy and therefore, he convicted the appellants as mentioned above.

The appellants aggrieved by the said judgment and order, preferred the instani criminal appeal before this Court.

I have heard the learned counsel for the parties and have also gone through the records carefully.

The contention of the learned counsel for the appellants is that in the instant case the learned Sessions Judge has committed an error in holding that the accusedpersons are the aggressors and the defence case is not worth to be reliable. According to him, accused Chaturi had also received injuries and in the absence of any proper explanation, it is to be believed that the prosecution did not come with clean hand and therefore, the accusedpersons are entitled to get benefit of doubt.

The learned appellants counsel in a precise manner tried to challenge the findings recorded by the trial Judge that the accusedpersons are the aggressors and the prosecution case is much probable, acceptable and, believable. He pointed out that the prosecution failed'' to explain the injuries of Chaluri and therefore, this fact itself makes the prosecution case doubtful. He also pointed out that apart from the injured persons no other witness named in the F.I.R. was examined in this case. He further contended that the name of P.W. 3 Smt. Phool Mali docs not find mentioned the F. I.R.

After considering the evidence on record in my opinion the findings recorded by the Court below do not require any interference. The prosecution case is fully supported by two injuredpersons namely: Ram Gopal and Babu Lal. The presence of these injuredpersons on the spot cannot be doubted as they received several injuries.

The testimony of these two injuredwitnesses further finds full support from the medical report and in these circumstances, in my opinion, it cannot be said that the learned Sessions Judge has committed any error in accepting the testimony of these eyewitnesses. These twowitnesses further stated before the trial Court that one or two Dandas were wielded at Chaturi in selfdefence and looking to the nature of the injuries of accused Chaluri in my opinion, it cannot he said that the prosecution has not come with clean hands. It is also pointed out that the accusedpersons had no motive to cause injuries to Babu Lal. According to the prosecution case the accusedpersons ''started assaulting Ram Gopal and seeing this, Babu Lal rushed to save Ram Gopal, then, he was also assaulted by the accusedpersons and therefore, in these circumsiances, in the absence of any cogent evidence the prosecution case, cannot be thrown out. As pointed out above, the prosecution case finds full support from the testimony of the injured witnesses whose statements are consistent and also find corroboration from the medical evidence and there fore, in my opinion, the prosecution has successfully proved the guilt of the accusedappellants beyond reasonable doubt.

Lasily, the learned counsel for the appellants contended that the incident took place in the year 19X2. The accused persons were tried and convicted under sections 323/149 and 147, I.P.C. in the year 1984. The appellants filed an appeal and there after, they were released on bail and since then, they are on bail. The injuries of Ram Gopal were also simple and it is also stated by the appellants counsel that since then the parties are living peacefully and no untoward incident look place between the parties. According to the appellants'' counsel, it will not be proper now to send the accusedpersons to Jail again because if, now after lapse of so many years, they are sent to Jail then, the relation between the parties will again become strained and the peace of the families of the parties will again be disturbed.

14.1 find force in this contention.

The Hon''ble Supreme Court also in several cases reduced the sentence to the period already undergone where there is a delay in disposal of the trial or appeal. In the case of Unman Gani Mohammad v. State of Maharashtra, reported in 1979 SCC (Cri) 675, the Apex Court has reduced the sentence of imprisonment to the period already undergone because nine years'' have elapsed after trial and five years'' have also elapsed in appeal. In the case of Patel Rasik lal Becharbhai and others v. State of Gujarat, reported in 1993 SCC (Cri) 252, the Hon''ble Apex Court after considering the facts and circumstances of the case upheld the conviction but reduced the sentence to the period already undergone because there was a delay in disposal of the appeal. Similarly, in a case of Ajit Kumar Vasant Lal Zaveri v. State of Gujarat, reported in 1993 Supreme Court Cases (Cri) 226, the Hon''ble Supreme Court considering the fact that the accused has undergone the agony of trial which took a long time and also looking into the other circumstances while confirming the conviction sentenced him to the period already undergone. Again in a case of Narinder Kumar Jain v. State of M.P., reported in 1996 SCC (Cri) 1025; 1996(2) J1C1459 (SC), on the ground of inordinate delay in disposal of the appeal, the Hon''ble Supreme Court took a view that the sentence to the period already undergone with fine is sufficient to meet ends of justice. In the abovementioned case the lower Court awarded a sentence of imprisonment to the accused under Sections 409 and 420, I.P.C. till the rising of the Court which on the face of it, was insufficient but the sentence was not enhanced due to inordinate delay in disposal of the appeal. No doubt, the Apex Court has also considered the other grounds also but the ground of delay in disposal of the trial/appeal, in all these cases, was the main ground. In the instant case, the incident took place in the year 1982 and there after, the conviction was recorded by the trial Judge in 1984. Thereafter, the appellants filed an appeal in 1984 and later on they were released on bail and since then, accusedappellants are living in their village. In these circumstances, it can he presumed in the absence of any other evidence contrary on the record that the parties must have patched up their differences and must have been living peacefully and this fact in my opinion has a great relevance so far as the quest ion of sentence is concerned.

The accusedappellants are on bail since 1984 and in the absence of any other evidence it will be presumed that the parties must have forgotten the previous bitterness and therefore, if, the accusedappellants are sent to Jail again them the bitterness will again crop up between the two families and therefore, keeping in mind all these facts, in my opinion, it would not be proper now alter lapse of so many years to send the accusedappellants to Jail again.

Accordingly, the present Criminal Appeal is hereby, dismissed. The conviction against accusedappellants namely: Surya Prasad, Chaturi, Kalloo, Ram Lakhan and Raja Ram under Sections 147 and 323/149, I.P.C. is hereby, confirmed but the sentence as awarded by the trial Court against the appellants under Section 147, I.P.C. is reduced to the period already undergone with a fine of Rs. 500/ (Rupees five hundred only) to each of them. The sentence as awarded by the trial Court against the aforesaid accusedappellants under Section 323/149, I.P.C. is also reduced to the period already undergone with a fine of Rs. 100/ (Rupees one hundred only) to each of them. All the aforesaid accusedappellants are directed to deposit the aforesaid fine within two months from today. If, the aforementioned fine is deposited then, the half amount of fine be credited to the District Legal Aid Committee, Rae Bareli and the remaining half amount of fine be deposited to the State Exchequer, if, the aforementioned fine is not deposited by the accusedappellants aforesaid within the stipulated period, then, each of the appellant will serve out six month''s R.I.

All the appellants are on bail. They need not surrender within two months from today. However, if, they fail to deposit the aforesaid fine, then, they are directed to surrender themselves before the Court concerned in order to serve out the sentence as awarded by this Court.