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Yogendra Pal v. State - CRIMINAL APPEAL No. 561 of 1981  RD-AH 10806 (28 June 2007)
Court No. 48
CRIMINAL APPEAL NO. 561 OF 1981
YOGENDRA PAL AND OTHERS VS STATE OF U.P.
Hon'ble Mukteshwar Prasad, J.
Hon'ble S.C. Nigam, J.
(Delivered by Hon'ble Mukteshwar Prasad, J.)
1- Three accused, namely Yogendra Pal, Onkar Nath and Siya Ram, all sons of Ram Saran, have come up to this Court and filed this appeal under Section 374 Cr.P.C. against the judgment and order dated 6.3.81 passed by Sri V.P. Mathur, the then Sessions Judge, Fatehpur in S.T. N0. 229 of 1980 whereby he convicted Yogendra Pal under Section 324 I.P.C. and sentenced him to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/-. He convicted Onkar Nath and Siya Ram under Section 324 read with Section 34 of the Penal Code and each one was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/-. In default of payment of fine, they were directed to suffer rigorous imprisonment for a further period of six months. The Sessions Judge further ordered that out of the total fine realized, a sum of Rs.1,000/- would be paid to the injured (Aasha Prasad).
2- In brief, the facts of the case giving rise to this appeal were as under:-
3- P.W.1 Ambika Prasad and P.W.2 Aasha Prasad are real brothers. The informant, injured and accused are all residents of village Mavaiyya, P.S. Ghazipur, District Fatehpur. The informant as usual had irrigated his plots from the tube well of Yogendra Pal. He, however, could not pay the irrigation charges to Yogendra Pal. When he demanded charges, some altercation took place. Some respectable persons of the village settled the matter in the Panchayat that Ambika Prasad would pay irrigation charges to Yogendra Pal at the rate of Rs.13/- per hour.
4- On 14.2.1980 at about 12'O Clock, informant's brother Aasha Prasad was present on his roof (Atari). Yogendra Pal armed with his licensed gun, Onkar Nath armed with Tamancha and Siya Ram who was carrying a barchhi arrived at the Atari of Aasha Prasad used abusive language and called him a dishonest person. Aasha Prasad assured them to obey the settlement arrived at in Panchayat but Yogendra insisted to take payment immediately. On the exhortation of Onkar Nath, Yogendra Pal and Onkar Nath proceeded further and Yogendra Pal fired at Aasha Prasad and pellets hit on the chest, neck and face of Aasha Prasad. After sustaining injuries, he fell down. He was dragged by the accused but on being challenged by the mother of the injured, Smt. Sukhiya Devi and co-villagers Jugal Kishore and Anand Swaroop, they ran away brandishing their weapons.
5- Ambika Prasad handed over a written report to the local Police and a case was registered at P.S. Ghazipur on the same day at 3-10 p.m. at crime no.57 under Section 307 I.P.C.
6- The injury of Aasha Prasad was examined by Dr. V.K. Srivastava, Emergency Medical Officer, District Hospital, Fatehpur on the same day at 6-00 p.m. Dr. Srivastava found as many as seven firearm injuries of various dimensions on different parts of the body.
7- The case was investigated as usual by P.W.5 S.I. M.C. Dubey. He interrogated the witnesses and after inspecting scene of the incident, prepared site-plan. He completed investigation and submitted charge sheet against all the three accused.
8- After committal of the case, Sri O.P. Garg, the then Additional Sessions Judge, framed charges under Section 307 I.P.C. against Yogendra Pal and his two brothers Onkar Nath and Siya Ram were charged under Sections 307/34 I.P.C. All the three brothers pleaded not guilty and claimed to be tried.
9- At the trial, the prosecution examined P.W.1 Ambika Prasad, informant and an eyewitness, P.W.2 Aasha Prasad, injured, P.W.3 Jugal Kishore, who is said to be an eyewitness, P.W.4 H.C. Hari Lal who proved FIR and entry in the G.D., P.W.5 S.I. M.C. Dubey, I.O. of the case and P.W.6 Dr. V.K. Srivastava who examined the injuries of Aasha Prasad on 14.2.80.
10- Accused Yogendra Pal in his statement given under Section 313 Cr.P.C. pleaded that Aasha Prasad had irrigated his plots from his tube well but did not pay the charges and on demand used filthy language. He lodged a report and then he paid Rs.100/- only in the presence of Police constable. The accused were falsely implicated on account of enmity.
11- After having considered the submissions made by the parties learned counsel and the evidence on record led by the prosecution, learned Sessions Judge found all the three accused guilty for the offence punishable under Section 324 of the Penal Code and they were convicted and sentenced as mentioned above.
12- Aasha Prasad, the injured and Ambika Prasad, the complainant, filed Criminal Revision N0. 574 of 1981. This revision was filed by Sri R.R.K Trivedi, Advocate. After his elevation to the Bench, notices were issued to the revisionists, which were received by Aasha Prasad, the injured.
13- We have heard Sri S.S. Mishra, learned counsel for the appellant and learned A.G.A. for the State. None turned up to press the criminal revision despite personal service to the injured.
14- Learned counsel for the appellants did not assail the impugned judgment on merits. In fact, he conceded finding recorded by the trial Judge and conceded frankly that the conviction recorded by the trial court is fully supported from the oral and documentary evidence on record and trial Judge committed no illegality in holding all the three appellants guilty for the offence punishable under Section 324 I.P.C. He, however, submitted with vehemence that incident in question took place on 14.2.1980 and the appellants were convicted by the court below on 6.3.1981. All the three appellants are now old persons and are more than 70 years of age. He, therefore, urged that it would not be just and proper now to send them to prison to serve out the sentence and the ends of justice would be met if they are sentenced to pay fine only.
15- On the other hand, learned A.G.A. submitted that conviction has not been challenged by the appellants' learned counsel and as such, this appeal is liable to be dismissed. The appellant no.1 (Yogendra Pal) used his licensed gun in committing the offence and as such, no leniency has to be taken.
16- We have considered the submissions made on behalf of the parties. We have scanned the evidence carefully with the aid of the parties' learned counsel. We find that this incident took place in broad day light on 14.2.80 at about 12'O Clock. There was festival of Shivratri. Besides Aasha Prasad, the injured, his real brother Ambika Prasad and neighbour Jugal Kishore, who is named in the FIR as an eyewitness, fully supported the prosecution case and corroborated the testimony of the injured. They were cross-examined at length but in our opinion nothing could be elicited in their cross-examination to show that they have not spoken the truth. P.W.6 Dr. V.K. Srivastava proved injury reports of Aasha Prasad and gave out that all the injuries were caused by firearms and were about six hours old at the time of examination. P.W.1 Ambika Prasad and P.W. 2 Aasha Prasad testified in clear words that Yogendra Pal fired at Aasha Prasad from a distance of more than 40 yards. It had also come in the record that Onkar Nath did not fire although he was also carrying Tamancha. The gun was not reloaded by Yogendra Pal. In this view of the matter, learned trial Judge came to the conclusion that there was no intention on the part of the appellants to kill Aasha Prasad and he rightly found the appellants guilty for committing the offence punishable under Sections 324/34 I.P.C. We, therefore, hold that conviction of all the three appellants under Section 324 I.P.C. is sustainable and finding recorded by the trial Judge cannot be interfered with.
17- So far as sentenced is concerned; Yogendra Pal was about 58 years old on 12.9.80 when his statement was recorded under Section 313 Cr.P.C. His two brothers, namely Onkar Nath and Siya Ram were about 48 years and 45 years respectively. Now after expiry of about 27 years, they are 85, 75 and 72 years old respectively. In view of the old age of all the three appellants and the long interval of about 27 years between their conviction and disposal of this appeal, we are inclined to take a lenient view and are of the opinion that ends of justice would be met if they are sentenced to the period already undergone by them and to pay a fine of Rs.4,000/-.
18- The appeal is, therefore, disposed of as under:-
19- The conviction of appellant no.1 (Yogendra Pal) under Section 324 I.P.C. and conviction of his two brothers Onkar Nath and Siya Ram under Sections 324/34 I.P.C. is upheld. Each of them is however sentenced to the period already undergone by them and to pay a fine of Rs.4,000/-. This amount of fine may be deposited by them in the court below within a period of three months from today. In default, each of them is directed to suffer rigorous imprisonment for a period of one year.
20- If the amount of fine is deposited by the appellants, a sum of Rs.1000/- shall be paid to Aasha Prasad and in the event of his death, it shall be paid to his widow. Fine already deposited by the appellants in the court below shall be adjusted.
Criminal Revision N0. 574 of 1981 filed by the injured for enhancing the sentences is hereby dismissed.
Date: 28th June, 2007
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