Partly allowed

Jharkandey Singh v. State of U.P.

Allahabad HC8 Feb 2018CRLA/2754/1987

Case brief

AI extract

What is this about?

In this criminal appeal, the appellant challenged the quantum of sentence for offences under Sections 147, 323, 324 and 149 IPC, admitting the conviction. The Court held that since both sides sustained injuries and no lethal weapons were used, the original 18-month sentence was excessive. It modified the sentence to the period of imprisonment already suffered by the appellants.

What did the court decide?

Sentence of 18 months was reduced to the period of imprisonment already undergone by the appellants (27 days plus one month).

Jharkandey Singh Vs State of U.P. — Criminal Trial and Appeal | Allahabad HC (2018)

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AFR

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 2754 of 1987

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Appellant :- Jharkandey Singh and others
Respondent :- State Of U.P.
Counsel for Appellant :- Jagdish Singh Sengar,K D
Singh,Prem Prakash
Counsel for Respondent :- A.G.A.

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Hon'ble Arvind Kumar Mishra-I,J.

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Heard Sri Prem Prakash, Chandra Prakash Pal
learned counsel appearing for the two surviving
appellants, namely, Sar Nath Singh (appellant No.6) and
Vijayee Yadav (appellant No.7) and learned AGA for the
State.

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Relevant to mention that this appeal was preferred
by seven appellants before this Court, wherein five
appellants- Jharkandey Singh, Bhairon Singh, Kedar
Singh, Harkandey Singh and Ram Kandey Singh- expired
during the pendency of this appeal, therefore, their
appeal stood abated by order of this Court dated
19.12.2016. Now, the consideration of this appeal is
confined to the aforesaid two surviving appellants,
namely, Sar Nath Singh (appellant No.6) and Vijayee
Yadav (appellant No.7).

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Prosecution story as unfolded by the record has
its genesis in the first information report lodged by
the informant- Satya Narayan Singh (P.W.1) at police
station- Sakaldiha, District- Chandauli regrading the
offence/incident in question at village- Kharehara
against 7 persons, including the two surviving
appellants, on 07.07.1984 at 10.45 P.M. at Case Crime
No.4919 of 1984, under Sections 147, 148, 325, 324,
323, 307, 379 IPC, whereby, it was alleged, inter-

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alia, that the incident took place around 8 P.M., on 7.7.1984 the informant and his elder brother Ambika Singh and Ramashanker Singh s/o Ambika Singh were working in their field and were cutting mud by shovel, when the aforesaid appellants- resident of same village- appeared on the scene, possessing lathi, danda, Garasha and ballam and asked Ambika Singh not to cut through water from the field. This ignited the dispute followed by heated altercation between the two sides. Dr. Ram Bahadur Singh and Raj Narayan Singh also arrived on the spot after hearing the noise. In the meanwhile, all the accused assaulted the informant side with their respective weapons. Written report contains narration that the informant on coming to know about the incident by hearing noise arrived on the spot with his licensed gun and tried to scare away the assailants by firing in the air. In the meanwhile, Harkandey Singh gave him lathi blow on his head due to which, the informant fell down, and Harkandey Singh, snatched away his gun and the rest of the assailants started assaulting the informant. A number of persons arrived on the spot and they intervened in the matter. Thereafter, appellants fled away from the scene.

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 Written report is Exhibit Ka-1. Relevant entries
were made in the concerned Check FIR at aforesaid case
crime number on aforesaid date and time at police
station- Sakaldiha, District- Chandauli. The Check FIR
is Exhibit Ka-6. On the basis of entries made in the
Check FIR, a case was registered in the General Diary
at the aforesaid crime number under aforesaid sections
of IPC against accused. The relevant GD entry is
Exhibit Ka-7.

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Investigation was entrusted to S.I. Sri K.K.

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Srivastava P.W.4, who proceeded to the spot and
recorded the statement of the witnesses and prepared
the site plan (Exhibit Ka-3) and also prepared various
papers. He also prepared memo of blood stained clothes
of the injured- Exhibit Ka-2.

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Injured Ambika Singh and Dr. Raj Bahdur Singh
were medically examined at the Government Hospital in
Varanasi on 08.07.1984 by Dr. B. Das (P.W.7). Both the
injured were referred for respective treatment as per
their physical condition.

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During the course of investigation, S.I. K.K.
Srivastava P.W.4 recorded statements of the witnesses
and after completing the investigation, filed charge-
sheet against the accused-appellants- which is Exhibit
Ka-5.

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As a sequel to that, proceeding of the case was
committed to the court of Sessions from where this case
was made over for conduction of trial and disposal to
the court of Special Judge, Varanasi. Appellants were
heard on point of charge and the trial court was, prima
facie, satisfied with the case against the accused-
appellants. Therefore, it framed charges against the
accused-appellants under Sections 323/149, 324/149,
325/149, 307/149, 147 IPC. Charges were read over and
explained to the accused, who abjured charges and opted
for trial.

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The prosecution, in order to prove guilt of the
accused, examined as many as 7 prosecution witnesses:-

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Satya Narayan Singh P.W.1 is the informant of this
case. Rama Shankar Singh P.W.2 is the injured witness.
Jaggu P.W.3 is the eye-witness of the occurrence. S.I.
K.K. Srivastava P.W.4 is the Investigating Officer of

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this case. Tarkeshwar Thakur P.W.5 is the Constable,
who noted relevant entries in the concerned Check FIR
and the General Diary. Dr. S.K. Singh P.W.6 is the
Radiologist and he has conducted X-ray examination of
the injured. Dr. B. Das P.W.7 has conducted medical
examination of the aforesaid two injured, as Emergency
Medical Officer and has proved the process.

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Except as above, no other testimony was adduced,
therefore, evidence for the prosecution was closed and
statement of the accused was recorded under Section 313
Cr.P.C., wherein, he claimed to have been falsely
implicated in this case on account of enmity.

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Two witnesses were produced on the behalf of the
defence. Dr. I.C. Srivastava is D.W.1. He has testified
on fact that he medically examined the two accused on
10.7.1984 in District Jail, Varanasi and has proved the
process.

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Lal Bahadur Singh is D.W.2. He has noted relevant
entries in the government document, whereby report of
the accused was noted.

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Except as above no other testimony was adduced by
the defence. Therefore, evidence for the defence was
closed.

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Consequently, case was posted for argument pros
and cons between the parties and the trial Judge after
considering the entire matter on its merit and on
marshaling of facts and evaluation of evidence adduced,
returned aforesaid finding of conviction and passed
sentence against the appellants.

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Consequently, this appeal.

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At the outset, learned counsel for the appellants

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though tried to assail the entire judgment on its
merit, but during course of argument, he paved way for
consideration of this appeal only on point of quantum
of sentence and relinquished the claim against
conviction. Consequently, conviction has been admitted
to be intact, however, sentencing part of the judgment
impugned was assailed on several counts; one of them
being fact that in the incident both the sides have
sustained injury and as many as two people (on accused
side) sustained injury on their person and the fact is
that both the sides belong to the same village. He
submits that it is case of sudden provocation and free
fight and the present surviving appellants did not play
any specific role and they have not been assigned any
specific role which caused any grievous hurt. Under
such circumstances, lenient view ought to have been
taken by the trial court, but the trial court of its
own whim awarded sentence, which apart from being
illegal, under circumstance, is too harsh and
disproportionate to the offence committed.

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Learned counsel further added sentencing the
appellants for 18 months imprisonment for offences
under Sections 147, 323 and 324/149 IPC, respectively,
is beyond comprehension, under the facts and
circumstances of the case, and the same is not
justified, but appropriate sentence in this case would
be a sentence of fine only and the same should have
been awarded and adhered to by the trial court under
prevailing facts and circumstances appearing against
the two surviving appellants, which particular aspect
has been ignored. It is the overall picture and also
entirety of the case and the gravity of the offence
that ought to have been contemplated by the trial Judge

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while sentencing the accused. The sentence so awarded
are on the face disproportionate and legally not
admissible. Lastly, he submitted that it would be
better, and in the fitness of things if both the
surviving appellants who have since suffered detention
in this very case during trial for about a month and
remained in custody pursuant to the warrant issued by
this Court from 27.11.2017 upto 23.12.2017 (total 27
days in all). Hence, their respective sentences of
imprisonment may be modified and reduced to the period
already undergone- (under Section 324/149 and 147 IPC,
likewise under Section 323 IPC). And this much of
sentence, under the facts and circumstances of this
case would be appropriate and just.

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Learned AGA vehemently opposed the prayer so made
and supported the sentencing done in this case,
however, he did not dispute fact of injury being caused
to the other side, the very same day (of occurrence)
and allegations of such injury being caused to the
accused side also has not been disputed.

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Considered the submission so raised and also considered the entirety of the case. It is admitted fact that both the sides have sustained injury in this case and report on behalf of the accused has also been noted/lodged at the same police station, the very same day i.e. 7.7.1984. Also considered the motive behind the offence and the sentencing of the appellants measured to the ambit of imprisonment for 18 months awarded under Section 323 IPC is per se illegal and erroneous it can not be so awarded, as the section does not permit awarding any sort of imprisonment beyond one year period.

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Looking to the fact that both the accused were
possessing lathi at the time of incident and did not
possess any lethal weapon and did not cause any such
injury as would have been caused by lethal weapon,
their sentencing under aforesaid Sections of IPC
appears to be a bit harsh, hence, the aforesaid
sentence under Sections 323, 324/149 and under Section
147 IPC need be modified.

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With that view in mind, the period of imprisonment
already suffered and undergone by both the surviving
appellants, i.e., one month and 27 days, appears to be
just and appropriate sentence to be awarded against
both the appellants under Sections 324/149, 323 and 147
IPC. Therefore, the sentence so awarded by the trial
court to the extent of 18 months imprisonment for each
of the offences under Sections 147, 323 and 324 read
with 149 IPC, respectively, against both the accused-
appellants is hereby modified. All sentences to run
concurrently.

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Consequently, the sentencing part of the impugned
judgment and order dated 16.11.1987 passed by Special
Judge, Varanasi in Sessions Trial No.299 of 1985 (State
Vs. Jharkandey Singh and others), Police Station-
Sakaldiha, District Varanasi stands modified to the
magnitude as above.

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Accordingly, this appeal is allowed partly as
aforesaid.

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Let a copy of this order be forwarded to the lower
court for its intimation and follow-up action.
Order Date :- 08.02.2018
Raj

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Jharkandey Singh v. State of U.P.

Case brief

What is this about?

What did the court decide?

Jharkandey Singh v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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