High Court
Case Details
1 Reserved on 16.12.2022 Delivered on 13.01.2023 In Chamber Case :- CRIMINAL APPEAL No. - 784 of 1982 Appellant :- Smt. Dharmi and another Respondent :- State Counsel for Appellant :- U.K. Misra,Abida Syed A.C.,Amarnath Tripathi,Amicus Curiae,D.R.S. Chauhan,Janardan Yadav,Nirbhay Kumar Bharti Counsel for Respondent :- A.G.A Hon'ble Rajendra Kumar-IV,J. 1. By this criminal appeal, accused-appellants Smt. Dharmi (Now deceased) and Jhinkoo have challenged the judgement and order dated 24.03.1982 passed by VIIth Additional Sessions Judge, Azamgah in Session Trial No.342 of 1979, under Section 307 I.P.C., Police Station Ghosi, District Azamgarh whereby accused- appellants have been convicted and sentenced 4 years rigorous imprisonment under Section 307 I.P.C. 2. During the pendency of present appeal, the appellant no. 1 Smt. Dharmi died and her case has been abated by this Court vide order dated 07.07.2020. Now appeal of appellant no. 2 Jhinkoo survives. 3.
Legal Reasoning
Brief facts, giving rise to the present appeal are that on 15.11.1977 at about 2:00 P.M., accused- appellants assaulted with knives and caused bodily injuries to one Lal Ji with intention to kill, due to which Lal Ji sustained serious injuries and fell down on earth. When he raised alarm, Naresh and Nebu 2 rushed there and witnessed the incident, whereupon,
Legal Reasoning
accused Jhinkoo fled away towards east but Smt. Dharmi was captured on spot with knife. Since the condition of Lal Ji was serious, he was taken to Baragaon hospital then referred to Sadar Hospital for treatment where he was medically examined. 4. P.W.-1 Munni Lal presented a written tehrir Ex.Ka-1 before police station Ghosi on very same day at about 7:20 P.M. whereupon an F.I.R. being Case Crime No. 225 of 1977, was registered and entry thereof was made in general diary. 5. The matter was investigated by S.I. Kailash Pati Pandey P.W.-3, who took investigation of the case, visited the spot, prepared site plan (Ex.Ka-3) and recorded the statement of Munni Lal, Naresh and Nebu and after completing entire formalities of Investigation, submitted charge against the accused- appellants. 6. The case, being exclusively triable by Court of Session, was committed to Court of Session, which came to be transferred and decided by VIIth Additional Sessions Judge, Azamgarh. 7. The charge against the accused persons was directed to be framed, they denied the charge levelled against them and pleaded not guilty and claimed trial. 8. To substantial its case, prosecution examined as many as six witnesses, out of which P.W.-1 Munni Lal, P.W.-2 Lal Ji and P.W.-4 Naresh are the witnesses of 3 fact and P.W.-3 I.O. Kailash Pati Pandey, P.W.-5 Dr. K.R. Lal, and P.W.-6 Constable Brahmdev Bhatiya are the formal witnesses. 9. The learned trial court, on an appreciation of the evidence on record, found the prosecution case proved against the appellants and convicted and sentenced the appellants as mentioned above. Aggrieved by their conviction and sentence, the appellants preferred the present criminal appeal. 10. Heard Dr. Abida Syed, learned Amicus Curiae for the accused-appellants, learned A.G.A. for the State and perused the record with valuable assistance of learned counsel for the respective parties. 11. P.W.-1 Munni Lal in his examination on oath stated that from before the occurrence, they have been resided separately and their cultivation is also separate. Accused Smt. Dharmi is his real aunt and his son accused-appellant no. 2 Jhinkoo is his cousin brother. The houses of the parties are separated but adjoining to each-other. On the date of occurrence at about 2:00 P.M., Tetari, the wife of his younger brother and his aunt Smt. Dharmi were quarreling. His younger brother Lal Ji went there to intervene where Jhinkoo (accused-appellant no. 2) was standing at the door of his house. As soon as victim Lal Ji went there, Jhinkoo stated that he was coming to quarrel and should be murdered. He went in side and brought two knives, one of them was handed over to his 4 mother Smt. Dharmi. Both the accused persons assaulted Lal Ji with knives, out of which victim sustained serious injuries. When victim Lal Ji raised an alarm, Naresh, Nebu and he himself rushed there and witnessed the occurrence. The accused-appellant no. 2 Jhinkoo fled away towards east while Smt. Dharmi was caught with blood stained knife on spot. Victim Lal ji, being seriously injured, was taken to PHC Badraon for medical treatment. Thereafter, he approached to police station for registering the report with accused Smt. Dharmi. The witnesses handed over the accused Smt. Dharmi to police and lodged an F.I.R. The blood stained knife, Baniyan and Sari were also handed over to Head Constable. Despite the facts, some other points have also been proved by him. 12. P.W.-2 Lal Ji, happens to be the injured witness, stated in his testimony that his house is adjoining to the house of Dharmi and their exit is in the east. At the time of occurrence, he was in the house and quarrel was going on between his wife and his aunt Smt. Dharmi. He went there to intervene in the matter. As soon as, he intervened, the accused persons attacked him with knife due to which he was seriously injured, however, he did not become unconscious. On his raising alarm Munni Lal, Naresh and Nebu came there and witnessed the occurrence. Since he was seriously injured, he was taken to hospital for medical treatment where he was 5 medically examined. Thus, P.W.-1 and P.W.-2 supported the prosecution version. P.W.-2 is injured in incident. They categorically supported the prosecution version. They withstood lengthy cross-examination but nothing could be brought on record so as to disbelieve their testimony. Whatever contradictions or omission have come in the statement of both they are not sufficient to disbelieve their statement. 13. So far as the submissions made by learned Amicus Curiae appearing for the accused-appellants submits that no public witness or entire evidence have been produced. So far as evidence of P.W.-1 is concerned, he is the eye witness and his presence on spot is quit natural as houses of parties are very adjoining to each-other and on the alarm raised by his younger brother, it was quit natural for him to rush to spot and witnessed the incident. P.W.-4 was also eye witness and he supported the prosecution case. 14. P.W.-2 Lal Ji is injured, he sustained serious injuries in the incident. Thus, presence of both the witnesses on spot cannot be doubted. Accused Dharmi was also apprehended by the witnesses with blood stained knife on spot where appellant no. 2 Jhinkoo is alleged to have fled away towards east. Section 134 of Indian Evidence Act provides that quality, not quantity of witnesses is relevant and prosecution is not obliged to adduce all the witnesses in examination. 15. According to the medical report and statement of 6 P.W.-5, who medically examined the injured and prepared the injury report, supported the prosecution case saying that at the time of examination, he found injuries on the person of victim Lal Ji and his injuries could be caused by some sharp edged weapon like knife. 16. P.W.-3 Investigating Officer of the supported the prosecution case in his examination in the trial court. Doctor and Investigating Officer were also cross- examined by the learned counsel for the accused- appellants but nothing could be drawn which may lead acquittal of the accused. 17. Having a serious look over the statement of witnesses and other materials placed before the trial court, impugned judgement appears justified in holding the appellants guilty. I do not find anything to take a different view that taken by trial court. 18. I do not find any illegality, irregularity or perversity, legal or otherwise, in the impugned judgement. The impugned judgement appears to be correct and well reasoned. In my considered view, no interference regarding conviction of appellant is warranted. 19. The appeal fails on merit and liable to be dismissed. Accordingly, the appeal is dismissed on merit. 20. Learned Amicus Curiae appearing for surviving accused-appellant no. 2 Jhinkoo submits that the 7 incident of the present case relates to the year, 1977 and more than 45 years have passed. The surviving accused-appellant no. 2 Jhinkoo must have been aged about more than 65 years old and there would be no useful purpose served to send the accused-appellant no. 2 Jhinkoo again in jail after a lapse of 45 years. The accused-appellant no. 2 Jhinkoo has been in jail for a considerable period during investigation and trial. Learned Amicus Curiae further states that the sentence of appellant no. 2 may be reduced to period already undergone and fine to which learned AGA has no objection. It is further submitted that rigorous imprisonment of 4 years has been awarded to the appellant no. 2 and after a long time, sending of appellant in jail would not meet the ends of justice. He is facing trial as well as appeal for a long and under these circumstances, sentence of the appellant no. 2 may be reduced to minimum side. 21. So far as sentence is concerned, admittedly, the incident of this case is of year 1977 and more than 45 years has elapsed. The appellant is facing trial as well as appeal. It is obvious that during these years, he has suffered a great mental agony and harassment. He must have also incurred expenses defending himself during the entire period. 22. Looking all these circumstances, while considering the question of sentence, I feel it appropriate to reduce the sentence of accused-appellant no. 2. 23. It is settled legal position that appropriate 8 sentence should be awarded after giving due consideration to the facts and circumstances of the case, nature of offence and the manner in which, it was executed or committed. The measure of punishment should be proportionate to gravity of offence. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual but also against society to which criminal and victim belong. 24. Keeping in view the nature of allegation and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it is committed. I, partly allowed the appeal but modify the impugned order of sentence in the following manner :- (i) Conviction of accused-appellant no. 2 under Section 307 I.P.C. is confirmed and maintained. Appeal is dismissed on merit. (ii) Sentence of accused-appellant no. 2 under Section 307 I.P.C. is modified and he is sentenced to substantive imprisonment of already undergone by the accused-appellant no. 2 with a fine of Rs. 20,000/- (Twenty Thousand only). In case, the accused-appellant no. 2 Jhinkoo shall not deposit Rs. 20,000/- as fine in the trial court concerned, he shall undergo for a period of six months simple imprisonment. 25. Before parting, I provide that Dr. Abida Syed, 9 Advocate, who has appeared as Amicus Curiae for appellant no. 2 in present Criminal Appeal, shall be paid Rs. 10,000/- as counsel's fees for her valuable assistance. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within two months from the date of receipt of copy of this judgement. 26. Certify the judgement along with the lower court record to the court concerned for compliance. Order Date :-13.01.2023 Manoj Digitally signed by :- MANOJ KUMAR YADAV High Court of Judicature at Allahabad