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Brij Behari And Another v. State - CRIMINAL APPEAL No. 1933 of 1981  RD-AH 11838 (20 July 2006)
Criminal Appeal No.1933 of 1981
1. Brij Behari(Dead)
2. Krishna Behari.................................................Accused
State of U.P..........................................................Respondent
Hon'ble M. Chaudhary, J.
This is a Criminal Appeal filed on behalf of the accused appellants from judgment and order dated 24th of August, 1981 passed by IV Additional Sessions Judge Fatehpur in Sessions Trial No. 306 of 1980 State vs. Brij Behari & another convicting accused Brij Behari under section 323 IPC and section 324 read with section 34 IPC and accused Krishna Behari under section 323 read with section 34 IPC and section 324 IPC and sentencing each of them to rigorous imprisonment for a period of three months and nine months respectively thereunder.
Appeal filed on behalf of accused appellant Brij Behari stood abated vide order dated 3rd of January, 2006 as he was reported having died.
Brief facts giving rise to this appeal are that in the morning of 1st of November, 1978 Dev Karan was ploughing his field situate at village Kaunch and his son Radhey Shyam was weeding that at about 8:00 a.m. Brij Behari and Krishna Behari reached there and asked Radhey Shyam if he had cleaned the drain and as he replied that he had cleaned the drain in part they asked him as to why he had not cleaned the complete drain which resulted in an altercation between them and Brij Behari gave sickle blow from its back side to Radhey Shyam hitting him at his head and as his father Dev Karan intervened at the exhortation of Brij Behari Krishna Behari fired at Dev Karan with countrymade pistol causing him firearm injuries at his right shoulder. On hearing the hue and cry raised one Ram Swaroop and Om Prakash reached the scene of occurrence and sighting them the miscreants took to their heels. Immediately Radhey Shyam went to the police station Chandpur situate at a distance of some four miles from the village and handed over written report of the occurrence to the police there at 11:30 a.m. the same forenoon.
Medical examination of injured Dev Karan at District Hospital, Fatehpur at 11:30 on 2nd of November, 1978 revealed an abraded contusion on front of right side chest besides six gunshot wounds of entry each measuring ¼" x ¼" on right shoulder having five gunshot corresponding wounds of exit each measuring ½ " x ½ " on back of right shoulder. No blackening was found present. The doctor opined that the abraded contusion was caused by friction and firearm wounds by firearm and about one and a half day old in duration.
Medical examination of Radhey Shyam revealed lacerated wound scalp deep on top of skull. Pus formation was present. The doctor opined that the injury was simple caused by some blunt and hard object and about 36 hours old in duration.
After investigating the crime the police submitted charge sheet against the accused under sections 323 and 307 IPC.
After framing of the charge against the accused the prosecution examined Dev Karan (PW 1) and Radhey Shyam ( PW 2) as eye witnesses of the occurrence. Testimony of rest of the witnesses examined by the prosecution more or less was of formal nature.
The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely on account of enmity.
On an appraisal of evidence on the record the learned trial judge held the accused guilty and convicted and sentenced accused Brij Behari under section 323 IPC and section 324 read with section 34 IPC and accused Krishna Behari under section 324 IPC and section 323 read with section 34 IPC as stated above.
Feeling aggrieved by the impugned judgment the accused appellant preferred this appeal for redress.
Learned counsel for the appellant pressed the appeal only on the point of sentence stating that the offences under sections 323 and 324 IPC are punishable with imprisonment or fine. He also contended that the appellant is an agriculturist and peace loving person and after twenty five years if he is sent to jail his family life may get disturbed and therefore he may be sentenced to fine.
Considering all the facts and circumstances of the case, the Court is of the view that the ends of justice would be met if appellant Krishna Behari convicted under section 323 read with section 34 IPC and section 324 IPC is sentenced to fine of Rs.1000.00 ( Rs one thousand) and Rs.5,000.00 ( Rs five thousand) respectively thereunder. The fine imposed upon appellant Krishna Behari shall be deposited by him within two months from today failing which he shall undergo imprisonment awarded by the court below. If the fine imposed is so deposited by the appellant half of the fine deposited by him shall be paid to both the injured in equal share, and the remaining half shall go to State Exchequer.
The appeal is dismissed with the modification in sentence as stated above.
Judgment be certified to the court below immediately. Record of the case be also transmitted immediately to the Court below . The Court concerned shall submit compliance report within a period of three months from the date of receipt of copy of the judgment.
Crl Appeal No.1933 of 1981
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