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Brij Behari And Another v. State - CRIMINAL APPEAL No. 1933 of 1981 [2006] RD-AH 11838 (20 July 2006)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No.11

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.

Dated: 20.7.2006

Crl Appeal No.1933 of 1981


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