Partly allowed

Asharaf and Others v. State

Allahabad HC2 Feb 2018CRLA/3098/1982

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court affirmed the conviction of accused for offences under Sections 148, 147, 324, and 294 IPC but modified the sentence to the period already undergone by the appellants. The Court imposed a fine of Rs. 2,000 and compensation of Rs. 5,000 on the appellant Ashraf instead of further imprisonment, citing decent behavior and time elapsed.

What did the court decide?

Appeal allowed; conviction affirmed, sentence modified to time already undergone; fine of Rs. 2,000 and compensation of Rs. 5,000 imposed.

Asharaf and Others Vs State — Corruption | Allahabad HC (2018)

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Court No. - 10 Case :- CRIMINAL APPEAL No. - 3098 of 1982 Appellant :- Asharaf & Others Respondent :- State Counsel for Appellant :- Rajeshji Verma,Anil Srivastava,Narayan Singh Kushwaha,S.K. Kulsrestha Counsel for Respondent :- A.G.A.

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Hon'ble Govind Mathur,J.

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Heard learned counsel for the appellants, learned AGA for the State and perused the record.

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This appeal is preferred to challenge the conviction recorded as sentence awarded by learned Additional District and Sessions Judge, Etah in Criminal Sessions Trial No. 199 of 1981 convicting the accused-appellants and awarding sentence to them.

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Learned Trial Court while holding the accused-Ashraf guilty for the offence punishable under Sections 148, 324, 294 IPC sentenced him to undergo imprisonment for a term of 3 years against the offence under Section 324 IPC, for a period of 2 years for the offence under Section 148 IPC, for a period of 3 months for the offence under Section 294 IPC. The accusedMusarraf is sentenced to undergo rigorous imprisonment for a period of 1 year under Section 147 IPC, rigorous imprisonment for 3 months under Section 324 IPC read with Section 149 IPC and rigorous imprisonment for 3 months for the offence under Sections 294/149 IPC. The accused-Idris is sentenced to undergo rigorous imprisonment for a period of 1 year under Section 147 IPC, rigorous imprisonment for a period of 3 years for the offence under Section 324 read with 149 IPC and to undergo rigorous imprisonment for a period of 3 months under Section 294 IPC and directing all the sentences of all the accused-appellants to run concurrently.

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As per the record, accused-Idris has already died during

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pendency of the instant appeal, as such, we are examining the case of remaining accused-appellants, namely, Ashraf and Musarraf.

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In brief, the case of the prosecution before the Trial Court was that on 04.06.1980 at about 09:45 A.M., one Rais Ali (PW-2) alongwith his wife Smt. Mehrunnisan (PW-1) was on way to market. The accused-Ashraf @ Phoolmiyan, Musarraf @ Baharmiyan, Idris and two other persons sitting outside the gate of Ashfaq uttered certain obscene words relating to Smt. Mehrunnisan (PW-1). On being reprimanded, the accusedAshraf armed with Chhuri and other accused armed with lathidanda assaulted Rais Ali (PW-2). The accused-Ashraf inflicted injury in the abdomen region of Rais Ali by a Chhuri and other persons participated in the quarrel. On raising alarm, Amanat, Kallu and other certain persons reached at the place of occurrence and intervened in the matter. Injured-Rais Ali (PW2) was immediately taken to the hospital where he was examined by Dr. O.P. Vaidhya who prepared the injury report (Exhibit Ka-2). As per the injury report, injured-Rais Ali (PW2) had an incised wound 4 cm. x 1, 1/2 cm x cavity deep over front of the abdomen in the mid line just below the lower angle of sternum. Margins were found sharp and the blood was oozing. The injury caused was noticed to be an outcome of a sharp object. Injured-Rais Ali (PW-2) then submitted a report at Police Station Kotwali, District Etah on basis of which a first information report (Exhibit Ka-3) was drawn by Head Constable Maharajuddin (PW-4). Investigating Agency after completing regular investigation submitted a police report before the Court competent. Accused persons denied the charge thus the trial commenced as desired.

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During course of the trial, injured-Rais Ali and his wife Mehrunnisan were examined as PW-1 and PW-2, respectively.

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Injured witness as well as Smt. Mehrunnisan supported the prosecution case. Injuries caused to Rais Ali were also substantiated by Dr. O.P. Vaidya who too was examined by Trial Court.

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An opportunity was also extended to the accused persons who explained the adverse incriminating circumstances in the prosecution evidence while complying with the provisions of Section 313 Cr.P.C.

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Accused-appellants denied all evidences adverse to them with assertion that they were falsely implicated in the case in question. No evidence in defence was adduced. Learned Trial Court after examining the entire evidence available on record recorded conviction of the accused-appellants and awarded sentences as referred in the introductory paragraph.

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The submission of learned counsel for the appellants is that the Trial Court failed to appreciate the evidence available on record and also failed to appreciate that injured witness Rais Ali (PW2) and his wife Mehrunnisan (PW-1) were the interested witnesses and their testimony could not have been relied upon to record conviction.

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Per contra, as per learned AGA, learned Trial Court examined the entire evidence and on adequate apprehension of that recorded the conviction. It is stated that merely on the count that the first information report was lodged at the instance of Rais Ali (PW-2), he or his wife Smt. Mehrunnisan cannot be termed and treated as witnesses interested. As a matter of fact, Rais Ali (PW-2) being injured was the best available evidence to support the prosecution story. It is asserted that Smt. Mehrunnisan too was present at the place of occurrence and entire incident occurred as filthy words were referred to her only. Much emphasis is given by learned AGA on the medical evidence available on record that clearly indicates causing of an

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incised wound by a sharp edged object.

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I have looked into the entire evidence available on record.

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PW-2, Rais Ali, while deposing before the Trial Court in quite specific terms stated that while he was on way with his wife Smt. Mehrunnisan, the accused persons uttered certain filthy words and accused-Ashraf caused the injury to him by a Chhuri . In cross-examination too, he substantiated whatever he stated during the examination-in-chief. PW-1, Smt. Mehrunnisan, while getting her testimony examined supported the prosecution story with specific assertion that while on way to market when she and her husband were passing from the road opposite to the residence of Ashfaq, the accused persons uttered filthy words, therefore, her husband - Rais Ali, raised some objection. The accused persons, on being annoyed, caused injury with sharp edged object in the abdominal region of Rais Ali (PW-2).

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An important witness is Dr. O.P. Vaidhya (PW-3) who in quite specific terms substantiated the injury report given by him immediately after the occurrence of the incident. This witness quite fairly and objectively stated that the injury caused was not sufficient to cause death but on relying upon the nature of injury as described by this witness, the Trial Court recorded acquittal of the accused-Ashraf under Section 307 IPC.

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In entirety, I do not find any wrong with the findings arrived by the Trial Court and, as such, the conviction recorded deserves to be affirmed. So far as the sentence part is concerned, suffice it to mention that at the time of the occurrence of the incident, the accused persons were young boys of 18-21 years. Now after a lapse of about 36 years, they are mature and responsible persons.

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It is stated that the accused appellants are not having any other

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significant criminal history.

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Learned counsel appearing on behalf of the appellants submits that no useful purpose shall now be served by sending them behind the bars and further states that the sentence may be adequately substituted by imposing fine and even by compensation as per provisions of Section 357 Cr.P.C.

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In my considered opinion, the submission made by learned counsel for the appellants is quite fair and objective.

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True it is, the accused is always required to be sentenced adequately but at the same time, the objective conditions and other subsequent circumstances taken place by efflux of time are also required to be kept in mind while deciding the criminal appeals.

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Looking to whatever facts stated above, I deem it appropriate to modify the sentence of the accused appellants by confining that to the period of imprisonment already undergone by them during the course of trial or after their conviction. However, the accused-appellants except Idris who has already died shall be liable to pay a fine in a tune of Rs. 2,000/- each which is required to be deposited before the Trial Court within a period of three months from today.

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The accused-Ashraf who has been convicted for the offence under Section 324 IPC simpliciter is also made liable to pay a compensation in a tune of Rs. 5000/- to injured-Rais Ali.

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In the event of default of payment of fine, the appellants shall be liable to undergo sentence awarded by Trial Court.

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In the result, the appeal is allowed in the terms aforesaid.

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Order Date :- 2.2.2018 Shubham

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(Govind Mathur,J.)

Asharaf and Others v. State

Case brief

What is this about?

What did the court decide?

Asharaf and Others v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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