Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Accused Sentenced To Four Years R.I. U/s 326 I.P.C.-Appeal Heard After 25 Years, Fine Of Rs. 45,000/- Substituted.
JUDGEMENT TITLE : Asghar Ali & Others Vs. State Of U.P.& Others On 31/05/2007 By Allahabad High Court
CASE NO : CRIMINAL APPEAL NO. 480 OF 1982
CORAM : Hon'ble Raghunath Kishore Rastogi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.1

Crl. Appeal No. 480 Of 1982

Asghar Ali And Another . . . . . . . . . . . . . . . . . . . . . . Appellants

Versus
State Of U.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Respondent. ---

Hon'ble R.K. Rastogi,J.

This Is An Appeal Against The Judgment And Order Dated 20.2.1982 Passed By Sri S.S. Agrawal, Then Sessions Judge, Budaun In Sessions Trial No. 476 Of 1980, State Vs. Asghar Ali And Akbar Ali.

The Facts Relevant For Disposal Of This Appeal Are That On 16.3.1980 Akhtar Ali Khan Lodged A First Information Report Against Accused-appellants At Police Station Allahpur District Budaun At 5.10 A.M. With These Allegations That His Cousin Brother Achhan Resident Of Mohalla Patia Kakrala Police Station Allahpur And Accused Asghar Ali And Akbar Ali Residents Of Same Mohalla Had Taken A Theka At Rudauli Sugar Factory District Barabanki In The Month Of January Of That Year. The Theka Money Was Realised By Accused Asghar Ali And When Achhan Asked Him For Accounting, Asghar Ali Replied That He Shall Do Accounting After Reaching Budaun. They Had Returned Back From The Factory About 15 Days Ago And On The Previous Day Akhtar Ali Had Asked Asghar Ali And Akbar Ali Again For Accounting At About 9 A.M. Stating That They Were In The Need Of Money. Then Asghar Ali Abused Them And Threatened That They Would Do Accounting Very Soon And Would See Them. Akhtar Ali And Achhan Were Sleeping In Their House In Between The Night Of 15 -16 March 1980. At About 3.15 A.M. Some One Knocked At The Door Of The House. There Was Light Of Electricity In The House. Akhtar Ali Got Up And Questioned About Identity Of The Person And Then Asghar Ali And Akbar Ali Disclosed Their Names And Asked Them To Open The Door, So That Accounting May Be Done. Akhtar Ali Opened The Door, Then Asghar Ali Having Spear In His Hand And Akbar Ali Having Lathi In His Hand Entered The House And Started Beating Him With Intent To Kill Him Stating That Accounting Should Be Done And Gave Lathi And Spear Blows To Him. Then Firoz Ahmad, Who Was Sleeping There, Also Got Up And Tried To Protect Akhtar Ali. Then Asghar Ali Gave A Spear Blow To Firoz Ahmad Also. Upon Noise Ahsan Ali Khan And Master Ali Ahmad Etc. Reached There And Protected Them. Then The Accused Went Away. Chadar Of Accused Asghar Ali Had Fallen Down On The Spot And He Could Not Take It With Him, And This Chadar Was Taken By Akhtar Ali To The Police Station And There He Lodged A Report Against The Accused Persons.
On The Basis Of The Above Report, Police Registered A Case Under Sections 452 And 307 I.P.C. Against The Accused Persons And After Completing The Investigation Submitted Charge Sheet Against Them. Both The Accused Were Charged Under Sections 452 And 307/34 I.P.C. They Pleaded Not Guilty And Claimed Trial.
The Prosecution Produced Akhtar Ali Khan As P.W.1. He Narrated The Entire Prosecution Story On Oath And Proved The Report Ex.Ka.1. He Also Stated That Both The Accused Are His Cousin Brothers. Ali Ahmad Was Examined As P.W.2. He Is An Eye Witness Of Incident And Has Corroborated The Statement Of P.W.1. Firoz Ahmad Was Examined As P.W.3. He Is Also An Eye Witness Of The Incident And Has Corroborated The Statement Of P.W.1.
Dr. N.P.Singh Was Examined As P.W.4. He Had Medically Examined Firoz Ahmad And Akhtar Ali On 16.3.1980 At 7.45 A.M. And 8.15 A.M Respectively. Firoz Ahmad Had Received Punctured A Wound 2 Cm X 1.5 Cm X 3 Cm Deep Over Outer End Of Right Upper Eye Lid And Another Punctured Wound ?? Cm X ?? Cm X Skin Deep Below Outer End Of Upper Eye-lid Of Right Eye. Both These Injuries Could Have Been Caused By Sharp Pointed Weapon, In His Opinion And The Injuries Were Fresh At The Time Of Examination.
Akhtar Ali Had Received One Lacerated Wound 2 Cm X 1 Cm X Bone Deep Over Front Of Head 11 Cm Above Route Of Nose, A Punctured Wound 1.5 Cm X 0.75 Cm X 1 Cm Deep Over Top Of Right Shoulder And Multiple Abrasions Over Top Of Left Shoulder Within An Area Of 12 Cm X 8 Cm And One Abrasion 3 Cm X 2 Cm Over Left Side Back 8 Cm Below Inferior Angle Of Scapula.
Both The Injured Were Admitted In The Hospital For Treatment. Injury No. 1 Of Akhtar Ali Was Kept Under Observation. His Remaining Injuries Were Simple.
It May Be Mentioned That Firoz Ahmad Has Lost Vision Of His Right Eye As A Result Of Injuries Received During This Incident And Statement To This Effect Has Been Given By Dr. R.N. Tandon, Superintendent, Eye Hospital, Bareilly, P.W. 5. Injury Reports Of Both The Injured Persons Were Proved As Ex.Ka 2 And Ka 3. Bed Head Ticket Of Firoz Ahmad In The Eye Hospital, Bareilly Was Proved As Ex.Ka 4.
Head Constable Mahabir Singh P.W.6 Had Prepared Chick Report Ex.Ka 5 Of The Incident On The Basis Of F.I.R. Ex.Ka 1 And Had Made Its Endorsement In The G.D. Ex. Ka 6. He Has Also Deposed About Investigation Of The Case Done By Sri Dinkar, Sub Inspector.
The Accused In Their Statements Under Section 313 Cr.P.C. Denied The Prosecution Allegations. Asghar Ali Further Stated In His Statement That He Had Given The Share Of Achchan And Akhtar To Achchan But Achchan Did Not Give To Akhtar His Share, And So Akhtar Had Enmity With Him.
Both The Accused Were Given Opportunity To Produce Defence Evidence But No Evidence Was Produced By Them.
The Learned Sessions Judge After Hearing Of The Case Came To A Conclusion That The Charge Under Section 452 I.P.C. Was Sufficiently Proved Against The Accused Persons. As Regards The Charge Under Section 307 I.P.C. He Was Of The View That No Charge Under Section 307 I.P.C. Was Made Out But Actually The Case Fell Under Section 326 I.P.C. Read With Section 34 I.P.C. He, Therefore, Convicted Both The Accused Persons Under Section 452 And 326/34 I.P.C. And Sentenced Them To Two Years R.I. Under Section 452 I.P.C. And To Four Year's R.I. Under Section 326/34 I.P.C. Aggrieved With That Judgement And Order, The Accused Have Filed This Appeal.
Heard Learned Counsel For The Appellants And Learned A.G.A. For The State.
The Learned Counsel For The Appellants Made Only One Submission Before Me. He Did Not Challenge The Conviction Order Passed Against The Accused-appellants But He Submitted That The Incident Is Of The Year 1980 And Conviction Order Was Passed Against Accused-appellants On 20.2.1982. He Submitted That The Age Of Accused Akbar Was 26 Years On 19.2.1982 When His Statement Was Recorded Under Section 313 Cr.P.C. And The Age Of Accused Asghar Ali Was 32 Years At That Time. He Submitted That Period Of 25 Years Has Passed Since Then, And Now The Present Age Of Asghar Ali Is 57 Years And That Of Akbar Ali Is 51 Years. He Further Submitted That Both The Accused Appellants Have Remained In Jail For More Than Two Months And So Now Instead Of Sending Them To Jail To Undergo Remaining Period Of Imprisonment, The Sentence Of Imprisonment Should Be Commuted To Fine.
The Learned A.G.A. Opposed This Prayer And Submitted That In This Case Injured Firoz Ahmad Had Lost Vision Of His Right Eye Due To Spear Blows Given By Asghar Ali And So The Accused Had Been Convicted Under Section 326 I.P.C. And Since Both The Accused Had Attacked The Injured Persons In Furtherance Of Their Common Intention To Cause Fatal Injuries To Them ,both Of Them Have Been Convicted Under Section 326 I.P.C Which Is Punishable With Life Imprisonment, And So Lenient View Should Not Be Taken In The Matter On The Ground That There Is Long Gap Between The Date Of Incident And The Date Of Hearing Of The Appeal.
The Learned Counsel For The Appellant Offered That Appellants Are Ready To Pay Heavy Amount Of Fine, Which May Be Given To The Injured Firoz Ahmad As Compensation. He Further Submitted That Both The Accused And Injured Are Close Relatives.
Considering The Submissions Made By Both The Parties And Taking Into Consideration The Period Of Imprisonment Already Undergone By The Accused Persons I Order That Accused Asghar Ali, Who Was Armed With Spear At The Time Of Incident And Had Given Spear Blow To Firoz Ahmad Resulting Into Loss Of Vision Of His Right Eye Should Be Fined Rs.20,000/- Under Section 326 I.P.C. And Rs.5000/- Under Section 452 I.P.C. The Other Accused Akbar Ali, Who Was Armed With Lathi Only Should Be Fined Rs. 15,000/- Under Section 326/34 I.P.C. And Rs.5,000/- For The Offence Under Section 452 I.P.C.
I, Therefore, Confirming The Conviction Order Passed By The Learned Sessions Judge Against The Accused Appellants Under Sections 326 And 452 I.P.C. And Taking Into Consideration The Period Already Undergone By Them In Jail, And Present Old Age Of The Appellants, Order That Remaining Period Of Imprisonment Awarded By The Trial Court Should Be Commuted To Fine And So I Impose A Fine Of Rs.20,000/- (Rupees Twenty Thousand Only) Upon The Accused-appellant Asghar Ali Under Section 326 I.P.C. And Rs.5,000/- Under Section 452 I.P.C. Similarly Against Accused-appellant Akbar Ali A Fine Of Rs.15,000/- Is Imposed For The Offence Under Section 326 /34 I.P.C. And A Fine Of Rs.5,000/- Is Imposed For The Offence Under Section 452 I.P.C. They Are Allowed Three Months Time To Deposit The Above Amount Of Fine And In Case Of Their Failure To Pay The Same, They Will Have To Undergo Sentence Of Imprisonment As Ordered By The Trial Court.
The Amount Of Fine, If Deposited By The Appellants, Shall Be Paid To Firoz Ahmad As Compensation.
The Appeal Is Finally Disposed Of Accordingly.

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