JUDGMENT :

This Interlocutory Application has been filed on behalf of the appellant for recalling the order dated 27.11.2018.

2. By filing a supplementary affidavit, it has been submitted that appellant of this appeal namely Akhilesh Prasad @ Akhilesh Singh is still alive. It is further submitted that due to a bona fide misunderstanding arising out of a telephonic communication, learned counsel for the appellant inadvertently informed the Court that the appellant had expired, whereas in fact, it was the father of the appellant who had died and not the appellant. It has further been submitted that the incorrect statement was neither intentional nor deliberate and no benefit could have accrued to the appellant by making such a submission. However, an unconditional apology has also been tendered on behalf of the appellant for the inadvertent mistake.

3. Learned counsel for the State has not controverted the aforesaid submissions.

4. Having considered the facts and circumstances of the case and the submissions made by the learned counsel for the appellant, this Court is satisfied that the incorrect statement was made due to a bona fide misunderstanding arising out of a telephonic communication.

5. Accordingly, the order dated 27.11.2018 is hereby recalled. The Criminal Appeal is restored to its original file and number.

6. I.A. No. 3 of 2018 is allowed.

Cr. Appeal (S.J.) No. 133 of 2009

7. Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State.

8. The present appeal has been directed against the judgment of conviction dated 15.01.2009 and order of sentence dated 17.01.2009 passed by learned Additional District & Sessions Judge, F.T.C.-IV, Jehanabad in Sessions Trial No. 566 of 2006/138 of 2006, arising out of Hulasganj Ghosi P.S. Case No. 67 of 2005 (G.R. Case No. 413 of 2005) whereby and whereunder the appellant has been convicted for the offences punishable under Sections 447, 341 and 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 years along with fine of Rs. 2,000/- under Section 307 of IPC and further sentenced to undergo rigorous imprisonment for one month in each Sections 447 and 341 of IPC. In default of fine he is further awarded one month imprisonment. All the sentences have been directed to run concurrently.

9. As per prosecution case, the informant Bharteshwar Prasad (PW-6), while undergoing treatment at the clinic of Dr. Pravin Kumar, gave his fardbeyan before A.S.I. Balmiki Singh of Islampur Police Station on 21.03.2005 at about 10:30 A.M., stating inter alia that on 20.03.2005 at about 8:00 P.M., he returned to his house at village Keur from Islampur Bazaar. As soon as he opened his door, his co-villager Akhilesh Prasad (appellant), armed with a farsa, came to his door along with two unknown persons and abused him in filthy language. Upon protest by the informant, the accused persons disclosed that the informant used to demand the outstanding rent from the wife and sister of the appellant, who had been residing in the informant’s house at Islampur without paying rent for the last two and a half years. On this issue, the accused/appellant allegedly threatened the informant that he would teach the informant and his son Arun such a lesson that they would forget to demand the rent. After a brief altercation, the appellant Akhilesh Kumar, who was having a farsa in his hand, assaulted the informant by giving a farsa blow on his head with an intention to kill him. Due to the said assault, the informant sustained bleeding injuries and he became unconscious. He raised alarm for help upon which the local residents assembled at the place of occurrence. After seeing them, the accused persons fled away. The informant was taken to the clinic of Dr. Pravin Kumar at Islampur by the neighbours for treatment. During the course of treatment, he gained consciousness.

10. On the basis of fardbeyan given by the informant/PW-6, Hulasganj Ghosi P.S. Case No. 67 of 2005