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IN THE HIGH COURT OF ALLAHABAD
SURESH KUMAR GUPTA, J.
Ram Swaroop and others - Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No.884 of 1991
Decided on : 09-07-2020
Criminal Law – Indian Penal Code, 1860 – Sections 34, 304, 302, 325 – Allege Violence – Conviction of – Criminal appeal has been preferred by appellants against the judgment and order passed by Additional Sessions Judge, in S.T. in which the appellant was convicted under Section 304/34, each of them sentenced to undergo rigorous imprisonment for five years, 2 years R.I. under section 325/34 IPC – Held, Appellants presently senior citizen and there is no specific proof that the fatal blow was inflicted by appellants – Sentence so awarded by the trial court under section 304 part II appears to be harsh under these circumstances and the same may be reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment as that would meet the end of justice – Only on point of quantum of sentence, sentence under section 304 part II IPC sentence of 5 years rigorous imprisonment modified to 3 years rigorous imprisonment – Sentence part under section 325/34 IPC shall remain unaltered – Appeal Partly Allowed (Paras 37, 38)
Facts of the Case:
Informant Amar Singh lodged the NCR in P.S. Lalauli, District Fatehpur with the allegation that on 14.06.1989 at about 5.30 p.m. Smt. Sudamiya wife of first informant was sitting along with deceased Shiv Nandan at the door of her house. All the 4 appellants/accused having armed with lathi and danda reached there and due to some altercation between the appellants and the deceased, the appellants assaulted Shiv Nandan with lathi and danda. Sudamiya tried to save her brother Shiv Nandan then she was also beaten by the accused appellants. Due to which Smt. Sudamiya and Shiv Nandan received injuries and also stated in NCR that there is litigation between the appellants and first informant regarding some land dispute and due to this reason the appellants assaulted both Smt. Sudamiya and Shiv Nandan.
Finding of the Court:
Appellants presently senior citizen and there is no specific proof that the fatal blow was inflicted by appellants – Sentence so awarded by the trial court under section 304 part II appears to be harsh under these circumstances and the same may be reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment as that would meet the end of justice – Only on point of quantum of sentence, sentence under section 304 part II IPC sentence of 5 years rigorous imprisonment modified to 3 years rigorous imprisonment – Sentence part under section 325/34 IPC shall remain unaltered.
Result: Appeal Partly Allowed
JUDGMENT :
1. This criminal appeal has been preferred by appellants against the judgment and order dated 27.04.1991, passed by 4th Additional Sessions Judge, Fatehpur, in S.T. No. 439 of 1989 (State Vs. Ram Swaroop and another), in which the appellant was convicted under Section 304/34, each of them sentenced to undergo rigorous imprisonment for five years, 2 years R.I. under section 325/34 IPC. Both the sentence shall run concurrently
2. Brief facts of this case are as follows:-
3. The informant Amar Singh lodged the NCR in P.S. Lalauli, District Fatehpur with the allegation that on 14.06.1989 at about 5.30 p.m. Smt. Sudamiya wife of first informant was sitting along with deceased Shiv Nandan at the door of her house. All the 4 appellants/accused having armed with lathi and danda reached there and due to some altercation between the appellants and the deceased, the appellants assaulted Shiv Nandan with lathi and danda. Sudamiya tried to save her brother Shiv Nandan then she was also beaten by the accused appellants. Due to which Smt. Sudamiya and Shiv Nandan received injuries and also stated in NCR that there is litigation between the appellants and first informant regarding some land dispute and due to this reason the appellants assaulted both Smt. Sudamiya and Shiv Nandan. The informant lodged oral report at about 10.30 p.m., it was recorded as NCR No. 44, under sections 323 IPC, which is proved as Ext. Ka 1. Sudamiya and Shiv Nandan, who were medically examined at PHC Bahuwa and Shiv Nandan succumbed due to his injury at PHC Bahuwa on 15.06.1989 at midnight afterward the NCR was converted into under section 302 IPC a cognizable offence by means of GD No. 22 time 14.45 on 15.06.1989 as Ext. Ka-4.
4. Investigation of this case was entrusted to the Investigating Officer.
5. Before the case was converted under section 302 IPC, Sub Inspector M.P. Singh prepared inquest report of the deceased Shiv Nandan and the dead body was sent to District Hospital Fatehpur, for autopsy and the same was done by Dr. M.N. Raizada.
6. Sudamiya was medically examined in PHC Bahuwa. Lower part of the shaft of radius and ulna of injured Sudamiya was found fractured on X-ray. Then one more section 325 IPC was added.
7. Investigation of this case was handed over to Sri Siraj Ahmad, Investigating Officer, and during investigation Siraj Ahmad prepared site plan on pointing out of the first informant, which is proved as Ext. Ka-8 and after recording the evidence of witnesses plain earth and blood stained earth were recovered, which is Ext. Ka-9. After recording the statements of witnesses and completing formalities of the investigation, Investigating Officer has submitted charge-sheet against appellants under section 302/34 and 325 IPC.
8. All the four accused-appellants were charged under sections 302/34, 323/34 and 325/34, which was framed on 22.09.1989 and were read over to accused. They pleaded not guilty and claimed to be tried.
9. In order to substantiate the charge levelled against the appellants, prosecution examined P.W. 1 Amar Singh, complainant/first informant who reported himself to be as eyewitness and proved NCR as Ext. Ka 1. P.W. 2 Ram Prasad, he himself reported to be as eyewitness and P.W. 3 Constable Brajlal Pandey, who proved the GD entry No. 28 10:30 on 14.06.89 regarding lodging of the NCR as Ext. Ka-3. P.W. 3 has also proved the GD Rapat No. 10 time 10:30 on 15.06.1989, the memo sent to PHC Bahuwa regarding death of the deceased Shiv Nandan and proved this GD as Ext. Ka 3 and it was also proved the conversion GD Sl. No. 20 time 14.45 dated 15.06.1989 as Ext. Ka. 5. P.W. 4 is Sudamia injured eyewitness, P.W. 5 Dr. M.H. Khan, who prepared the X-ray report of injured Sudamiya and proved X-ray report as Ext. Ka 5. P.W. 6 Dr. B. Kumar Pateria, who examined the deceased Shiv Nandan in PHC Bahuwa and proved injury report as Ext. Ka-6 and P.W. 7 is the investigating officer, who proved the site plan Ext. Ka 8 and recovery memo of blood stained and
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