Partly allowed

Yashpal Singh v. State of U.P.

Allahabad HC7 Jan 2019JAPL/4326/2015

Case brief

AI extract

What is this about?

High Court Criminal Appeal where appellant challenged conviction and sentence under Arms Act, arguing for acquittal due to prior acquittal in latest murder case and insufficient evidence. Court upholds conviction but modifies sentence based on time spent in custody.

What did the court decide?

Sentence reduced to imprisonment already undergone with fine of Rs. 1000/-; in default, simple imprisonment for one month.

Yashpal Singh Vs State of U.P. — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 50

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Case :- JAIL APPEAL No. - 4326 of 2015

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Appellant :- Yaspal Singh Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Suresh Pratap Singh Counsel for Respondent :- A.G.A.

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Hon'ble Aniruddha Singh,J.

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Dr. Abida Syed is present as Amicus Curiae who was appointed vide order dated 28.7.2011 by this Court. Since appellant is represented by Sri Suresh Pratap Singh, there is no need of Amicus Curiae. Hence appointment of Ms. Abida Syyed as Amicus Curiae is hereby cancelled.

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Heard Sri Suresh Pratap Singh, learned counsel for the appellant as well as Sri D.N. Tiwari, learned AGA and perused the record.

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This criminal appeal has been preferred by appellant Yaspal Singh against judgment and order dated 1.6.2015 passed by Additional Sessions Judge/Special Judge(SC/ST Act), Basti in Criminal Appeal No.254 of 2008 arising out of Case Crime No. 412/2008, Police Station Lalganj, District Basti whereby appellant was convicted under section 4/25 Arms Act and sentenced to two years' rigorous imprisonment with fine of Rs.5000/-and in default, three months' simple imprisonment. Sentence served out was directed to be adjusted.

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In brief, prosecution case is that appellant was arrested by the police on 3.8.2008 with a sword.

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Case was registered and after investigation charge sheet was submitted. Charges were framed. Prosecution examined P.W.-1 S.I. Sudhir Kumar, P.W. 2 Peshkar Yadav, P.W.-3 Hub Lal, P.W. 4 Shyam Sundar, P.W.5 Surya Dev Prasad and P.W.6 Sub Inspector Paras Nath Yadav. Statement of accused was recorded under Section 313 Cr.P.C. and appellant examined D.W. 1 Jairam and D.W.2 Ram Nath in defence.

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After recording statement of accused and hearing learned counsel for the parties, impugned order was passed. Hence this appeal.

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Learned counsel for the appellant submitted that in the main case of murder, the appellant was acquitted by this High Court vide judgment and order dated 22.4.2016 passed in Jail Appeal No. 2844 of 2011, hence he is liable to be acquitted on this very ground. It is further submitted that no copy of recovery memo was provided to the appellant. There is no legal evidence; all the witnesses are police personnels and are not reliable; Seal mohar in the recovery memo has not been properly proved. Both defence witnesses have categorically stated that the appellant was arrested from his house by the police but his arrest was falsely shown from another place. The independent witnesses of recovery P.W.3 Hub Lal(victim) and P.W.4 Shyam Sundar have not supported the prosecution witnesses and stated that all proceedings were done at the police station and all papers were also prepared at the police station. It was also admitted by the witnesses that copy of 'fard baramadgi' was not supplied to the appellant. P.W.3 and P.W.4 are father and son and have given contrary statements. Hence, their statements are not reliable and trust worthy resulting in existence of no independent witness. G.D. was also not proved.

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It is next submitted that appellant was in jail from 3.8.2008 to 23.6.2009(10 months and 20 days) at the time of arrest. Later on, from 22.4.2016 to January, 2017 he was in jail. Hence, total period of sentence already served out comes to around eighteen months and twenty three days. Only one year minimum sentence is provided under Section 25 (1B)(b) read with section 4 of Arms Act.

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On the point of conviction no interference is called for, since two public witnesses(P.W.3 Hub Lal and P.W.4 Shyam Sundar) have supported the prosecution case and stated that sword was recovered from the possession of appellant.

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10.On the point of sentence learned counsel for the appellant submitted that the incident is of year 2008, about ten years have elapsed and the appellant has already served out more than 18 months and 23 days, hence lenient view may be taken against appellant and he may be sentenced to imprisonment already undergone with fine.

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11.Learned AGA opposed on the point of conviction but on the point of sentence he submitted that lenient view may be taken.

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This Court in the case of Sukhbir and others vs. State of U.P. in Criminal Appeal No. 2905 of 1980 decided on 16.9.1999 and Supreme Court in Narayansingh Nathusingh vs. Natvarlal Hiralal Thakkar and another, (1981) 4 SCC 507 have reduced the sentence to the imprisonment already undergone with fine.

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In the case of Ved Ram and others vs. State of U.P., 2010(68) ACC 182 wherein appellants have already remained in jail for almost eight months and on being satisfied with the period of incarceration, the Court imposed additional fine of Rs.1000/- and altered conviction from under Section 307 IPC to under section 324/149 IPC.

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Hon'ble Apex Court in the case of State of Karnataka vs. Kaisarbaig and others, (2018) 4 SCC 403 sentenced the appellants to the period of imprisonment already undergone with fine of Rs.50,000/- in addition to what has already been paid to the victim under Section 148/324/149 IPC.

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The Division Bench of Hon'ble Supreme Court in the case of Raman Kalia and another vs. State of Gujarat, AIR 1979 SC 1261 has held that "we would, therefore, while upholding the conviction of Raman Kalia under Section 323 I.P.C. reduce the sentence to the period already served, which we understand is about a month and a half."

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16.From the perusal of judgment of acquittal dated 22.4.2016, there is no finding by the Court about recovery of sword from the possession of appellant. Hence this appeal will not get affected from the judgment of acquittal.

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Hence considering the period of detention, ends of justice would be done if the appellant is sentenced to imprisonment already undergone with fine of Rs.1000/-.

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Thus, the appeal is partly allowed . Appellant Yaspal Singh is convicted under section 4/25 Arms Act and sentenced to the imprisonment already undergone with fine of Rs.1000/-(Rupees one thousand only) and in default to deposit fine, he shall undergo simple imprisonment for one month. Fine shall be deposited within two months from today.

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19.Office is directed to transmit copy of this order alongwith record of lower Court to the Court below immediately. Compliance report be submitted within three months which shall be kept on record.

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Order Date :- 7.1.2019 P.P.

Yashpal Singh v. State of U.P.

Case brief

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Yashpal Singh v. State of U.P.

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