The High Court allowed the criminal appeal partly, holding that a five-year rigorous imprisonment sentence for an appellant who only guarded the scene while the brother caused injuries was excessive. The sentence was modified to time served plus a fine.
Sentence modified to period already undergone in detention coupled with a fine of Rs. 3000/-.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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AFR
Court No. - 15
Case :- CRIMINAL APPEAL No. - 42 of 1987
Appellant :- Balla And Another
Respondent :- State Of U.P.
Counsel for Appellant :- R.L. Verma
Counsel for Respondent :- A.G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri R.L. Verma, learned counsel appearing
for the sole surviving appellant, namely, Tilak Ram and
learned AGA for the State and perused the record.
Vide letter dated 17th January, 2018, it has been
intimated that appellant no.1 Balla expired 20 years
back. Therefore, this appeal qua appellant no.1 Balla
stands abated. This appeal is now confined to the sole
surviving appellant no.2 Tilak Ram.
The present appeal has been preferred against
judgment and order of conviction dated 05.12.1986
passed by II Additional Sessions Judge, Shahjananpur in
S.T. No.305 of 1986 arising out of Case Crime No.45 of
1985, under Section 307/34 IPC, Police Station-
Sehramau North, District- Shahjahanpur, whereby the
appellant- Tilk Ram- was convicted under Section 307/34
IPC and was sentenced to five years R.I.
Learned counsel for the appellant has urged that
the appellant has no objection in so far as conviction
of the appellant under Section 307/34 IPC is concerned
and this appeal may be confined to the point of quantum
of sentence, imposed by the trial court and that aspect
need be considered at this juncture.
In view of fact that this appeal is now confined
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only to the consideration of the point of quantum of
sentence imposed on the accused, therefore, it would be
out of use to describe the entire facts in this case.
However, brief sketch of relevant facts of this case
need be referred at this stage for proper appraisal of
the facts and evaluation of evidence vis a vis
circumstances of this case.
The factual matrix as discernible from the
description of the incident in the certified copy of
the judgment appears to be that the incident took place
on 31.05.1985 at about 12.30 P.M. when the bullock of
Rahmat Ullah got untied and caused scratch to the
chapper of Balla thus causing some damage to it. Balla
along with Tilak Ram went to the house of Rahmat Ullah
and scolded him. During the course of altercation,
Rahmat Ullah asked him to desist, which infuriated
Balla and his brother Tilak Ram, due to which, Balla
who possessed sword and Tilak Ram, who possessed lathi
caused injury to Rahmat Ullah by giving him a number
of blows with the sword. Accused Tilak Ram stood guard
during the incident. On alarm being raised by the
injured Rahmat Ullah, witnesses Kallu and Jamil arrived
on the spot challenged the assailants, whereupon, they
fled away from the scene.
Report was lodged and investigation ensued, pursuant thereto Rahmat Ullah was examined by medical examination. Doctor S.P. Pant (Medical Officer Incharge P.H.C. Khutar) medically examined Rahmat Ullah at 11. P.M. on 31.5.1985 and prepared the wound report Exhibit Ka-2. It has been proved by him that he found “ an incised wound 5.5 cm x 1 cm x bone deep with bleeding present, on the upper part of left chest, just at the collar in which he suspected fracture of underlying
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bone and for ascertaining the same advised X-ray. He also found an incised wound 6 cm x 1.5 cm x bone deep on the back of the left forearm 11 cm above the wist joint with blood clots present and on cleaning the injury he found bleeding and also found fracture of the underlying bone. The third and last injury found by him was also an incised wound 3 cm x 1 cm x bone deep on the back of the right forearm 14 cm above the wrist joint having bleeding. The doctor confirmed that the injuries could be caused by sword at the time of incident and the injury no.2 was grievous. Since no X- ray was presented before him, he could not characterize injury no.1 which he kept under observation as grievous.
During the course of Investigation, Investigating
Officer performed the relevant formalities and after
completing the investigation submitted the charge-
sheet against the accused.
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 and disposal of the
trial to the court of II Additional Sessions Judge,
Shahjahanpur. In turns, appellant was heard on point of
charge and the trial court was, prima facie, satisfied
with the case against the accused- appellant.
Therefore, it framed charge against the appellant
under Section 307/34 IPC. Charge was read over and
explained to the accused, who abjured charge and opted
for trial.
The prosecution, in order to prove guilt of the
accused, examined as many as four witnesses:-
Rahmat Ullah P.W.1 is the injured- informant of
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this case. He has lodged the FIR, Exhibit Ka-1, orally
and put the signature on it. He also stated that about
a month after the incident the Sub- Inspector collected
from him the blood stained 'Tehmat' and shirt and added
that he was wearing these clothes at the time of the
incident.
Doctor B.P. Pant P.W.2 has medically examined the
injured Rahmat Ullah and prepared the wound report, and
has proved the process as Exhibit Ka-2.
Kallu P.W.3 is a witness of fact.
Constable Brij Bhushan Singh P.W.4 is the scribe
of the FIR (Exhibit Ka-1) and in his presence thumb
impression has been affixed by the informant- Rahmat
Ullah. He also registered the case by making entry in
the G.D., Exhibit Ka-3 and prepared the Chitthi
Majroobi, Exhibit Ka-4.
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 accused-appellant Tilak Ram stated that when the 'chhaper' was damaged he and Balla felt embarrassed and both of them out of anguish abused Rahmat Ullah and then ran back to their house on being chased by Rahmat Ullah etc. who trespassed into their house. He denied having beaten or caused any injuries to Rahmat Ullah. He claimed to have been falsely implicated in this case on account of parti bandi and Panchyat election rivalry.
The defence did not lead any evidence whatsoever.
Consequently, case was posted for arguemnt pros
and cons between the parties and the trial Jude after
considering the entire matter on its merit and on
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marshaling of facts and evaluating evidence returned
aforesaid finding of conviction and passed sentence
against the appellant.
Consequently, this appeal.
Learned counsel for the appellant urged that the
sentencing part of the judgment and order impugned
dated 05.12.1986 passed by II Additional Sessions
Judge, Shahjananpur is being questioned and assailed
on the strength of the merit of this case qua facts and
circumstances of the case appearing against the
surviving appellant and he persuaded the Court for
imposition of mild sentence instead of the sentence of
imprisonment awarded by the trial court. He went on to
add that this case relates back to the year 1985-86 and
more than 32 years have elapsed since then. The accused
has grown old and older and during this period, no
complaint of any sort pertaining to involvement of the
appellant in any criminal act or offence has been heard
and the role of the present appellant in the very
incident even if admitted then the same is confined to
his mere presence on the spot and no overt act done by
him. He neither committed any over act nor did he cause
any sort of injury, whatsoever, on the injured Rahmat
Ullah in the incident on 31.05.1985 around 12.30 P.M.
in village Basoopur, Police Station- Sehramu North,
District Shahjahanpur.
In this peculiar and particular fact situation,
how was it justified that the surviving appellant-
Tilak Ram, who did not make any overt jesture in the
causing of any lethal blow on the person of injured-
Rahmat Ullah- can be punished at par with the other co-
accused (Balla), who was possessed of sword and who
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alone caused all the three incised wounds on the person
of the injured. That way, sentence imposed is too harsh
against the appellant, therefore, his case need be
considered sympathetically in the light of the merit of
the case and the particular role played by the
appellant.
Learned counsel summed up by submitting that it is
apparent that the appellant was taken into custody on
the date of the judgment i.e. 5.12.1986 and remained in
custody till the bail was granted by this Court, vide
order dated 2.1.1987, when the appeal was presented.
The appellant must have been confined to the
imprisonment upto 3rd January, 1987. That way, the
appellant suffered detention in this case for at least
30 days, which period should be considered sufficient
period of imprisonment and he may be punished with the
sentence of period suffered/undergone by him in
detention in this case.
Learned AGA vehemently opposed the prayer so made
and supported the sentencing done in this case. He has
justified the sentencing part of the judgment and has
submitted that just sentence has been awarded against
the appellant because he also participated in the
incident. However, he has not disputed the factual
aspect of this case that any lathi blow, whatsoever,
was given by the present appellant and his role is
confined to that of guarding on the spot, and he he did
not indulge in causing injury and he has not disputed
the injury report, Exhibit Ka-2, wherein all the
injuries noted are incised wounds, which could have
been caused by sword as opined by P.W.2 Dr. B.P. Pant.
Considered the submission so raised and also
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considered the entirety of the case. Bare perusal of
the testimony on record and particularly the testimony
of the injured Rahmat Ullah (P.W.1) and the eye-witness
Kallu (P.W.3), when considered in its detail, is found
to be consistent, clinching; and their creditworthiness
cannot be doubted and inspires confidence, therefore,
the same was acted upon and was found to be consistent
one against the appellant, and conviction recorded by
the trial court under Section 307/34 IPC.
After considering the aforesaid factual aspect of
participation of accused and keeping guarding on the
spot, it is admitted fact that the appellant did not
cause any injury on the injured- Rahmat Ullah. That
way, sentencing him for five years R.I. under Section
307/34 IPC, keeping the sentence at par with the main
accused- Balla, who was possessed of sword and causded
three incised wounds, would not be just and proper; and
in the fitness of things a mild view of appellant's
case ought to have been taken and acted upon by the
trial court.
The sentence of five years R.I. under Section
307/34 IPC appears to be a bit harsh, under the facts
and circumstances of the case.
Considering the particular fact that no injury was caused by use of lathi and all the injuries were found to be incised injury caused by sword, which was caused by another co-accused- Balla, the sentencing part of the judgment ought to have been varied and contemplated lenient in favour of the appellant and lesser punishment ought to have been awarded. Considering from that angle, the sentencing to the magnitude of five years R.I. awarded by the trial court against the
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present surviving appellant under Section 307/34 IPC is
hereby modified to the extent of the period already
undergone and suffered by him in detention (30 days)
coupled with fine Rs.3000/-, and in case of default,
the appellant would have to suffer additional simple
imprisonment for one month period. The amount of fine
shall be deposited within a period of one month from
today. Accordingly, sentencing part of the judgment and
order impugned stands modified.
In view of above, this appeal succeeds in part and
the sentencing made by the trial court vie order
impugned dated 05.12.1986 passed by II Additional
Sessions Judge, Shahjananpur in S.T. No.305 of 1986
arising out of Case Crime No.45 of 1985, under Section
307/34 IPC, Police Station- Sehramau North, District-
Shahjahanpur is hereby modified to the magnitude as
above.
Consequently, this appeal is allowed partly in
terms aforesaid.
Let a copy of this order be forwarded to the lower
court for its intimation and follow-up action.
Order Date :- 15.02.2018
Raj
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3 issues framed by the court
Whether the appellant who only guarded the spot without causing injury should receive the same sentence as the principal offender.
Whether the sentence of five years rigorous imprisonment awarded to the appellant is excessive under the facts.
Whether the sentence should be modified to mitigate the period of detention already suffered.
1 provisions across 1 enactments
Tilak Ram
State Of U.P.
Arvind Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court