State of U.P v. Counsel for

District Budaun arising out of Crime Nos. 38 and 59 of 1981 by which the learned trial court has convicted and sentenced the appellants under Section 148 I.P.C. for a period of two years; under Section 307/149 I.P.C. for a period of three years rigorous imprisonment; and under Section 25 Arms Act for a period of two years and all the sentences are to run concurrently.

2. During the pendency of trial appellant nos. 2, Dhan Singh; appellant no.3, Ram Singh; appellant no. 5, Lakhpal; appellant no. 6, Maharban and appellant no. 7, Khushali have died and appeal against them stands abated, therefore, this appeal is dismissed as abated for the appellants nos. 2, 3, 5, 6 and 7.

3. Appellant no. 1, Budhpal; appellant no. 4 Nathu; appellant no. 8, Mukhtyar are represented by the learned counsel Mr. Ravi Shankar Tripathi and Amicus Curiae Mrs. Beena Mishra.

4. Facts in brief are that on 08.03.1981 at about 8:30 A.M. there was police encounter in a field of Arahar (pulse) from where appellants with other co- accused persons were arrested by the police and one S.B.B.L. gun with 4 live cartridges from the possession of Budhpal, one country made pistol with 3 live cartridges from the possession of Dhan Singh, one country made pistol 12 Bore with 3 live cartridges from the possession of Ram Singh, one 2 CRLA No. 862 of 1983 country made pistol 12 bore with 2 live cartridges from the possession of Nathu, one country made pistol 12 bore with three live cartridges from the possession of Lekhpal, one tamancha 12 bore with 2 live cartridges from the possession of Khushali were recovered. Fard recovery was prepared on the spot and F.I.R. was lodged on the same day at about 14:30 'o' clock. No any injury was caused to any police personnel or any other person.

5. After investigation of the case charge sheet was filed against the appellants under Sections 148, 147 and 307/149 IPC and Section 25 Arms Act.

6. The learned court concerned, took cognizance of the offences and after complying with the provisions of Section 207 Cr.P.C, committed the case to the Court of Sessions for trial.

7. The learned trial court framed the charge under Sections 147, 148, 307/149 IPC and section 25 of Arms Act against them on the basis of material on record which was read-over and explained to the appellants. They did not plead guilty but claimed for trial.

8. In support of its case, prosecution examined, P.W. 1, S.I. Harish Chandra Singh; P.W.2, Constable Ram Chandra Singh; P.W. 3, Rasheed Ali, independent witness; P.W. 4, S.I. Ranvir Singh; 5; P.W. 5, Ramesh Chand Rastogi; P.W. 6, Constable Kripal Singh and P.W. 7, S.I. Rajendra Singh Investigating Officer.

9. After conclusion of prosecution evidence, statements of appellants under Section 313 Cr.P.C. were recorded in which they stated the incident to be false and witnesses to be inimical. They examined D.W. 1 Dr. R.K. Verma who examined the injury of appellant no. 1 Budhpal, D.W. 2 Ganga Sahai an independent witness, resident of the village where incident is said to have taken place.

10. After hearing the arguments for accused/appellants as well as the State, learned trial court passed the impugned judgment dated 25.03.1983.

11. Being aggrieved with the conviction and sentence, this criminal appeal has been preferred by the appellants.

12. Heard Sri Ravi Shankar Tripathi learned counsel for the appellant no. 1, Mrs. Beena Mishra Amicus Curiae for the appellant nos. 4 and 8 as well as 3 CRLA No. 862 of 1983 learned A.G.A. for the State and perused the record.

13. Learned counsel for the appellants as well as Amicus Curiae limited their argument to the sentence awarded by the learned trial court. They contended that the appellant no. 1 Budhpal is aged about 77 years old and likewise other appellants are also aged and they are suffering from physical ailments. The incident is said to have taken place on 08.03.1981 and from the date of arrest they remained in jail till 14.07.1981 i.e. more than four months. They further submits that from the date of incident i.e. 08.03.1981 till now 44 years have elapsed and no purpose will be served by sending them to jail, therefore, they be released on the period they have undergone in jail.

14. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellants but could not dispute the fact about time gap from the date of incident till now and the age of the appellants.

15. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s 307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and circumstances of the case, Hon'ble the Apex Court reduced the sentence to the period undergone by him. Likewise, in the case of Hussainbhai Asgarali Lokhandwala v. State of Gujarat dated 14 August 2024 in Criminal Appeal No. 1691 of 2023 Hon'ble Apex Court modified to the period of incarceration already undergone by him while maintaining the conviction where the entire incident had occurred in the heat of moment on

07.11.2000.

16. Since the learned counsel for the appellants as well as learned Amicus Curiae limit their argument to the extent of sentence and the period appellants remained in jail, therefore, the merit of the case is not to be interfered except the sentence.

17. In considered opinion of this Court, keeping in view the aforesaid circumstances of the case and the observation made by the Hon'ble Supreme Court, the time gap & the age of appellants and the nature of offence it will serve no purpose to send the appellants to jail for serving out the remaining period of sentence.

18. Accordingly, this appeal is partly allowed and the sentence awarded against the appellant no. 1, Budhpal; appellant no. 4 Nathu and appellant no. 4 CRLA No. 862 of 1983 8, Mukhtyar is reduced to the period of sentence already undergone by them.

19. Since the appellant Budhpal is confined in district jail Badaun in pursuance to the N.B.W. issued dated 07.07.2025, therefore, he be released from jail.

20. Appellants Nathu and Mukhtyar are on bail, therefore, they need not surrender, their bail bonds are cancelled and sureties stand discharged.

21. Copy of this judgment along-with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within two months. Office is directed to keep the compliance report on record. September 8, 2025 Suraj Srivastav (Subhash Chandra Sharma,J.) SURAJ SRIVASTAVA High Court of Judicature at Allahabad

District Budaun arising out of Crime Nos. 38 and 59 of 1981 by which the learned trial court has convicted and sentenced the appellants under Section 148 I.P.C. for a period of two years; under Section 307/149 I.P.C. for a period of three years rigorous imprisonment; and under Section 25 Arms Act for a period of two years and all the sentences are to run concurrently.

2. During the pendency of trial appellant nos. 2, Dhan Singh; appellant no.3, Ram Singh; appellant no. 5, Lakhpal; appellant no. 6, Maharban and appellant no. 7, Khushali have died and appeal against them stands abated, therefore, this appeal is dismissed as abated for the appellants nos. 2, 3, 5, 6 and 7.

3. Appellant no. 1, Budhpal; appellant no. 4 Nathu; appellant no. 8, Mukhtyar are represented by the learned counsel Mr. Ravi Shankar Tripathi and Amicus Curiae Mrs. Beena Mishra.

4. Facts in brief are that on 08.03.1981 at about 8:30 A.M. there was police encounter in a field of Arahar (pulse) from where appellants with other co- accused persons were arrested by the police and one S.B.B.L. gun with 4 live cartridges from the possession of Budhpal, one country made pistol with 3 live cartridges from the possession of Dhan Singh, one country made pistol 12 Bore with 3 live cartridges from the possession of Ram Singh, one 2 CRLA No. 862 of 1983 country made pistol 12 bore with 2 live cartridges from the possession of Nathu, one country made pistol 12 bore with three live cartridges from the possession of Lekhpal, one tamancha 12 bore with 2 live cartridges from the possession of Khushali were recovered. Fard recovery was prepared on the spot and F.I.R. was lodged on the same day at about 14:30 'o' clock. No any injury was caused to any police personnel or any other person.

5. After investigation of the case charge sheet was filed against the appellants under Sections 148, 147 and 307/149 IPC and Section 25 Arms Act.

6. The learned court concerned, took cognizance of the offences and after complying with the provisions of Section 207 Cr.P.C, committed the case to the Court of Sessions for trial.

7. The learned trial court framed the charge under Sections 147, 148, 307/149 IPC and section 25 of Arms Act against them on the basis of material on record which was read-over and explained to the appellants. They did not plead guilty but claimed for trial.

8. In support of its case, prosecution examined, P.W. 1, S.I. Harish Chandra Singh; P.W.2, Constable Ram Chandra Singh; P.W. 3, Rasheed Ali, independent witness; P.W. 4, S.I. Ranvir Singh; 5; P.W. 5, Ramesh Chand Rastogi; P.W. 6, Constable Kripal Singh and P.W. 7, S.I. Rajendra Singh Investigating Officer.

9. After conclusion of prosecution evidence, statements of appellants under Section 313 Cr.P.C. were recorded in which they stated the incident to be false and witnesses to be inimical. They examined D.W. 1 Dr. R.K. Verma who examined the injury of appellant no. 1 Budhpal, D.W. 2 Ganga Sahai an independent witness, resident of the village where incident is said to have taken place.

10. After hearing the arguments for accused/appellants as well as the State, learned trial court passed the impugned judgment dated 25.03.1983.

11. Being aggrieved with the conviction and sentence, this criminal appeal has been preferred by the appellants.

12. Heard Sri Ravi Shankar Tripathi learned counsel for the appellant no. 1, Mrs. Beena Mishra Amicus Curiae for the appellant nos. 4 and 8 as well as 3 CRLA No. 862 of 1983 learned A.G.A. for the State and perused the record.

13. Learned counsel for the appellants as well as Amicus Curiae limited their argument to the sentence awarded by the learned trial court. They contended that the appellant no. 1 Budhpal is aged about 77 years old and likewise other appellants are also aged and they are suffering from physical ailments. The incident is said to have taken place on 08.03.1981 and from the date of arrest they remained in jail till 14.07.1981 i.e. more than four months. They further submits that from the date of incident i.e. 08.03.1981 till now 44 years have elapsed and no purpose will be served by sending them to jail, therefore, they be released on the period they have undergone in jail.

14. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellants but could not dispute the fact about time gap from the date of incident till now and the age of the appellants.

15. In the case of Neelam Bahal & another v. State of Uttrakhand 2010 (2) SCC 229 where conviction and sentence of appellant u/s 307 IPC was converted into S.326 IPC simpliciter. Incident took place in the year 1987 and appellant was about 25 years old. Considering the facts and circumstances of the case, Hon'ble the Apex Court reduced the sentence to the period undergone by him. Likewise, in the case of Hussainbhai Asgarali Lokhandwala v. State of Gujarat dated 14 August 2024 in Criminal Appeal No. 1691 of 2023 Hon'ble Apex Court modified to the period of incarceration already undergone by him while maintaining the conviction where the entire incident had occurred in the heat of moment on

07.11.2000.

16. Since the learned counsel for the appellants as well as learned Amicus Curiae limit their argument to the extent of sentence and the period appellants remained in jail, therefore, the merit of the case is not to be interfered except the sentence.

17. In considered opinion of this Court, keeping in view the aforesaid circumstances of the case and the observation made by the Hon'ble Supreme Court, the time gap & the age of appellants and the nature of offence it will serve no purpose to send the appellants to jail for serving out the remaining period of sentence.

18. Accordingly, this appeal is partly allowed and the sentence awarded against the appellant no. 1, Budhpal; appellant no. 4 Nathu and appellant no. 4 CRLA No. 862 of 1983 8, Mukhtyar is reduced to the period of sentence already undergone by them.

19. Since the appellant Budhpal is confined in district jail Badaun in pursuance to the N.B.W. issued dated 07.07.2025, therefore, he be released from jail.

20. Appellants Nathu and Mukhtyar are on bail, therefore, they need not surrender, their bail bonds are cancelled and sureties stand discharged.

21. Copy of this judgment along-with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within two months. Office is directed to keep the compliance report on record. September 8, 2025 Suraj Srivastav (Subhash Chandra Sharma,J.) SURAJ SRIVASTAVA High Court of Judicature at Allahabad