High Court · 1981

4. The prosecution theory in brief is that the first informant Roop Kishore had submitted a written report with an allegation that he along with Kanhai (A-1) and Chhavi Krishan (A-2) are resident of same Village Guthna. The first informant, Roop Kishore had made arrangement for 1 of 6 publication of the principles of Arya Samaj on 24th and 25th November 1981 and a Committee was formed, of which Roop Kishore, first informant was elected as Treasurer. The said act was not appreciated by Kanhai son of Nanhey, who with ill- intentions had entered into hot altercations. Kanhai son of Nanhey threatened the first informant, Roop Kishore regarding that division of institution in two parts, so, he intended to cause harm to the first informant, Roop Kishore.

5. Allegation is that on 1.11.1981 at about 3 p.m. in the evening when the first informant Roop Kishore was coming from his Village Guthna to Gunnaur through Raipur and when he reached on Raipur Gunnar Chauraha near Guava Grove, appellant Chhavi Krishan son of Kanhai, Kanhai son of Nanhey and Ramesh son of Kohmi came from the side of Gunnaur and accused Kanhai and appellant Chhavi Krishan exhorted. At this, Ramesh son of Kohimi thrashed the first informant Roop Kishore and Kanhai caused knife injury to him. Appellant Chhavi Krishna had caught hold the first informant Roop Kishore and on alarm raised by first informant Roop Kishore, Chandra Prakash and Khushi Ram of village Guthna, who were going to the market reached the spot. Thereafter, accused ran away threatening of dire consequences in future. An FIR (Exhibit Ka-2) came to be lodged in his hand writing in Police Station Gunnaur on 1.11.1981 at 3.45 p.m. Chik report (Exhibit Ka-6) was prepared by Head Constable against all accused including appellant Chhavi Krishan. First informant Roop Kishore was medically examined by Dr. B.M. Saxena, Medical Officer, P.H.C., Gunnaur District, Budaun on 1.11.1981 at 4.20 p.m. wherein following injuries were noted: "1- Incised wound 4 cm × 1.5 cm × bone deep on the front and left side head, 13 cm away from left eye-bro, clean margins. Fresh bleeding present. 2- Lacerated wound 4 cm × 0.5 cm muscle deep on the right side forehead 4 cm away from right eye- brow oblique in direction. Fresh bleeding present. 3- Abrasion 3 cm × 0.5 on the outer and upper 1/3rd of right arm, 7 cm below the right shoulder. 4- Abrasion 2 cm ×1 cm on the lower half of the back of left fore-arm. 5- Abrasion 1 cm x 1 cm on the back and lower half of left fore-arm 4 cm away from left wrist associated with swelling in whole of left lower half of forearm including left wrist. 2 of 6 6- Constitution 1 cm × 1 cm on the back of proximal 1/3rd of right little finger associated with swelling in whole of right little finger of right hand. All injuries fresh at the time of medical examination. injuries except no.1, 5 and were simple and X-Ray for these injuries was advised. Injury no. 1 was caused by a sharp- edged-weapon and injuries no.2, 5 and 6 were caused by blunt object. Injuries no.3 and 4 caused by friction against hard substance."

6. One S.I. Chandra Pal of Police Station Gunnaur was appointed as Investigating Officer, he conducted investigation and he reached the spot on 2.11.1981 and prepared site plan (Exhibit Ka-3) and after investigation submitted charge sheet against appellant and other co-accused. After the case was committed to the court of sessions, prosecution has examined P.W.1 Chandra Prakash, P.W.2 Dr. B.M. Saxena, P.W.3 Roop Kishore and PW.4 Chandra Pal Singh S.I.

7. The court of Additional Sessions Judge, Budaun in Sessions Trial No. 509 of of 1982 (State Vs. Kanhai and two others) proceeded to hold the deceased Kanhai son of Nanhey guilty for offences under Sections 324 and 323/34 IPC and he was acquitted with respect to offence under Section 307 IPC and so far as accused Ramesh, since deceased and the appellant herein Chhavi Krishna, son of Kanhai are concerned, they were convicted for offence under Sections 324 and 323 both read with Section 34 of IPC sentenced to undergo 9 months and 6 months rigorous imprisonment, respectively. Both sentences to run concurrently.

8. Learned counsel for appellant has submitted that from the bare look of allegations contained in the First Information Report, the incident is stated to be of 1.11.1981 at 3 p.m., wherein it is alleged that first informant Roop Kishore was coming from Village Guthna and going to Gunnaur through Raipur and when he reached on Raipur Gunnaur Chauraha near Guava Grove, appellant herein along with Kanhai and Ramesh came from the side of Gunnaur and Kanhai and Chhavi Krishan (appellant herein) exhorted. Accused Ramesh thrashed upon the first informant Roop Kishore (injured) and Kanhai caused knife injury to him. Chhavi Krishan appellant herein had caught hold of Roop Kishore. 3 of 6

9. Submission of learned counsel for appellant is that the only role assigned to Chhavi Krishan appellant herein is only catching hold of Roop Kishore, first informant and it was co-accused Ramesh, who has caused lathi injuries and Kanhai, who has caused knife injury.

10. In nutshell, the submission is that Sections 323, 324 read with section 34 IPC would not be attracted. Further submission is that no such incident had occurred and appellants were even not present when the said incident took place. He also submits that the incident is dated 1.11.1981 and the conviction order is dated 9.2.1984. More than 44 years have passed and looking into the role so assigned to appellant as well as conduct of appellant and that there is no criminal history, the sentence pursuant to the conviction under Sections 323, 324 read with section 34 IPC be altered and modified to fine.

11. Learned State Law Officer, on the other hand, has submitted that as per allegations contained in First Information Report and statements of prosecution witnesses and also the finding returned in the judgment under challenge, the role assigned to appellant is catching hold of Roop Kishore first informant and the injuries through lathi was caused by co-accused Ramesh and Kanhai also caused knife injuries to the first informant. Since more than 44 years have passed and conviction is under Sections 323, 324 read with section 34 of the IPC, the sentence be altered and modified to fine.

12. I have heard the submissions so made across the Bar and perused the record carefully.

13. First Information Report alleges that on 1.11.1981, appellant along with Kanhai and Ramesh at 3 p.m. when the first informant was coming from village Guthna to Gunnaur through Raipur and when he reached on Rampur Gannaur Chauraha near Guava Grove then appellant herein along with two accused (deceased) came from the side of Gunnaur. Appellant herein along with deceased Kanhai had exhorted. Accused Ramesh 4 of 6 (deceased) thrashed upon the first informant Roop Kishore and Kanhai (deceased) co-accused Ramesh (deceased) caused injuries though knife and lathi to him and Chhavi Krishan appellant herein had only caught hold of Roop Kishore.

14. As many as 6 injuries were sustained by first informant Roop Kishore. All injuries are of fresh duration simple except injury nos. 1, 5 and 6 advised x-ray of skull. Injury no.1 was caused by sharp weapon and injury nos. 2, 5 and 6 were caused by blunt object and injury nos. 3 and 4 caused by friction against hard substance.

15. Importantly, the role assigned to appellant Chhavi Krishan was only of catching hold the first informant Roop Kishore and exhortation and Ramesh co-accused was causing lathi injuries and accused Kanhai was causing knife injuries.

16. Bearing in mind the fact that the role assigned to appellant Chhavi Krishan was catching hold of the first informant Roop Kishore in the FIR, which is also the finding recorded in the judgment under challenge as well as the fact that the incident is of the year 1981 and more than 44 years have been passed and there is nothing on record to suggest that appellant Chhavi Krishan has any criminal history and as suggested by learned counsel for appellant, Chhavi Krishan and learned State Law Officer the sentence be modified and altered to fine. Thus, a case is made out for modification and alteration of the sentence.

17. Accordingly, the appeal is allowed in part. Conviction of appellant Chhavi Krishan son of Kanhai under Sections 323, 324 read with Section 34 IPC is upheld. However, in place of sentence of imprisonment for nine months and six months, respectively, the same are modified and altered to a fine of Rs.10,000/- for offences under Section 324 IPC and Rs.2000/- for offences under Section 323 IPC. Fine amount imposed upon appellant accused Chhavi Krishan son of Kanhai, shall be deposited within three months from today. In case of default in payment of fine within the 5 of 6 aforesaid period, appellant shall serve out the entire sentence awarded by the trial court vide judgment and order, which is under challenge.

18. Let a copy of the judgment along with lower court record be sent to Sessions Judge, Budaun for compliance. A compliance report be sent to this Court.

19. Copy of the judgement and order be provided to learned counsel for appellant and to the learned AGA as per rules. Order Date :- 22.7.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad 6 of 6

4. The prosecution theory in brief is that the first informant Roop Kishore had submitted a written report with an allegation that he along with Kanhai (A-1) and Chhavi Krishan (A-2) are resident of same Village Guthna. The first informant, Roop Kishore had made arrangement for 1 of 6 publication of the principles of Arya Samaj on 24th and 25th November 1981 and a Committee was formed, of which Roop Kishore, first informant was elected as Treasurer. The said act was not appreciated by Kanhai son of Nanhey, who with ill- intentions had entered into hot altercations. Kanhai son of Nanhey threatened the first informant, Roop Kishore regarding that division of institution in two parts, so, he intended to cause harm to the first informant, Roop Kishore.

5. Allegation is that on 1.11.1981 at about 3 p.m. in the evening when the first informant Roop Kishore was coming from his Village Guthna to Gunnaur through Raipur and when he reached on Raipur Gunnar Chauraha near Guava Grove, appellant Chhavi Krishan son of Kanhai, Kanhai son of Nanhey and Ramesh son of Kohmi came from the side of Gunnaur and accused Kanhai and appellant Chhavi Krishan exhorted. At this, Ramesh son of Kohimi thrashed the first informant Roop Kishore and Kanhai caused knife injury to him. Appellant Chhavi Krishna had caught hold the first informant Roop Kishore and on alarm raised by first informant Roop Kishore, Chandra Prakash and Khushi Ram of village Guthna, who were going to the market reached the spot. Thereafter, accused ran away threatening of dire consequences in future. An FIR (Exhibit Ka-2) came to be lodged in his hand writing in Police Station Gunnaur on 1.11.1981 at 3.45 p.m. Chik report (Exhibit Ka-6) was prepared by Head Constable against all accused including appellant Chhavi Krishan. First informant Roop Kishore was medically examined by Dr. B.M. Saxena, Medical Officer, P.H.C., Gunnaur District, Budaun on 1.11.1981 at 4.20 p.m. wherein following injuries were noted: "1- Incised wound 4 cm × 1.5 cm × bone deep on the front and left side head, 13 cm away from left eye-bro, clean margins. Fresh bleeding present. 2- Lacerated wound 4 cm × 0.5 cm muscle deep on the right side forehead 4 cm away from right eye- brow oblique in direction. Fresh bleeding present. 3- Abrasion 3 cm × 0.5 on the outer and upper 1/3rd of right arm, 7 cm below the right shoulder. 4- Abrasion 2 cm ×1 cm on the lower half of the back of left fore-arm. 5- Abrasion 1 cm x 1 cm on the back and lower half of left fore-arm 4 cm away from left wrist associated with swelling in whole of left lower half of forearm including left wrist. 2 of 6 6- Constitution 1 cm × 1 cm on the back of proximal 1/3rd of right little finger associated with swelling in whole of right little finger of right hand. All injuries fresh at the time of medical examination. injuries except no.1, 5 and were simple and X-Ray for these injuries was advised. Injury no. 1 was caused by a sharp- edged-weapon and injuries no.2, 5 and 6 were caused by blunt object. Injuries no.3 and 4 caused by friction against hard substance."

6. One S.I. Chandra Pal of Police Station Gunnaur was appointed as Investigating Officer, he conducted investigation and he reached the spot on 2.11.1981 and prepared site plan (Exhibit Ka-3) and after investigation submitted charge sheet against appellant and other co-accused. After the case was committed to the court of sessions, prosecution has examined P.W.1 Chandra Prakash, P.W.2 Dr. B.M. Saxena, P.W.3 Roop Kishore and PW.4 Chandra Pal Singh S.I.

7. The court of Additional Sessions Judge, Budaun in Sessions Trial No. 509 of of 1982 (State Vs. Kanhai and two others) proceeded to hold the deceased Kanhai son of Nanhey guilty for offences under Sections 324 and 323/34 IPC and he was acquitted with respect to offence under Section 307 IPC and so far as accused Ramesh, since deceased and the appellant herein Chhavi Krishna, son of Kanhai are concerned, they were convicted for offence under Sections 324 and 323 both read with Section 34 of IPC sentenced to undergo 9 months and 6 months rigorous imprisonment, respectively. Both sentences to run concurrently.

8. Learned counsel for appellant has submitted that from the bare look of allegations contained in the First Information Report, the incident is stated to be of 1.11.1981 at 3 p.m., wherein it is alleged that first informant Roop Kishore was coming from Village Guthna and going to Gunnaur through Raipur and when he reached on Raipur Gunnaur Chauraha near Guava Grove, appellant herein along with Kanhai and Ramesh came from the side of Gunnaur and Kanhai and Chhavi Krishan (appellant herein) exhorted. Accused Ramesh thrashed upon the first informant Roop Kishore (injured) and Kanhai caused knife injury to him. Chhavi Krishan appellant herein had caught hold of Roop Kishore. 3 of 6

9. Submission of learned counsel for appellant is that the only role assigned to Chhavi Krishan appellant herein is only catching hold of Roop Kishore, first informant and it was co-accused Ramesh, who has caused lathi injuries and Kanhai, who has caused knife injury.

10. In nutshell, the submission is that Sections 323, 324 read with section 34 IPC would not be attracted. Further submission is that no such incident had occurred and appellants were even not present when the said incident took place. He also submits that the incident is dated 1.11.1981 and the conviction order is dated 9.2.1984. More than 44 years have passed and looking into the role so assigned to appellant as well as conduct of appellant and that there is no criminal history, the sentence pursuant to the conviction under Sections 323, 324 read with section 34 IPC be altered and modified to fine.

11. Learned State Law Officer, on the other hand, has submitted that as per allegations contained in First Information Report and statements of prosecution witnesses and also the finding returned in the judgment under challenge, the role assigned to appellant is catching hold of Roop Kishore first informant and the injuries through lathi was caused by co-accused Ramesh and Kanhai also caused knife injuries to the first informant. Since more than 44 years have passed and conviction is under Sections 323, 324 read with section 34 of the IPC, the sentence be altered and modified to fine.

12. I have heard the submissions so made across the Bar and perused the record carefully.

13. First Information Report alleges that on 1.11.1981, appellant along with Kanhai and Ramesh at 3 p.m. when the first informant was coming from village Guthna to Gunnaur through Raipur and when he reached on Rampur Gannaur Chauraha near Guava Grove then appellant herein along with two accused (deceased) came from the side of Gunnaur. Appellant herein along with deceased Kanhai had exhorted. Accused Ramesh 4 of 6 (deceased) thrashed upon the first informant Roop Kishore and Kanhai (deceased) co-accused Ramesh (deceased) caused injuries though knife and lathi to him and Chhavi Krishan appellant herein had only caught hold of Roop Kishore.

14. As many as 6 injuries were sustained by first informant Roop Kishore. All injuries are of fresh duration simple except injury nos. 1, 5 and 6 advised x-ray of skull. Injury no.1 was caused by sharp weapon and injury nos. 2, 5 and 6 were caused by blunt object and injury nos. 3 and 4 caused by friction against hard substance.

15. Importantly, the role assigned to appellant Chhavi Krishan was only of catching hold the first informant Roop Kishore and exhortation and Ramesh co-accused was causing lathi injuries and accused Kanhai was causing knife injuries.

16. Bearing in mind the fact that the role assigned to appellant Chhavi Krishan was catching hold of the first informant Roop Kishore in the FIR, which is also the finding recorded in the judgment under challenge as well as the fact that the incident is of the year 1981 and more than 44 years have been passed and there is nothing on record to suggest that appellant Chhavi Krishan has any criminal history and as suggested by learned counsel for appellant, Chhavi Krishan and learned State Law Officer the sentence be modified and altered to fine. Thus, a case is made out for modification and alteration of the sentence.

17. Accordingly, the appeal is allowed in part. Conviction of appellant Chhavi Krishan son of Kanhai under Sections 323, 324 read with Section 34 IPC is upheld. However, in place of sentence of imprisonment for nine months and six months, respectively, the same are modified and altered to a fine of Rs.10,000/- for offences under Section 324 IPC and Rs.2000/- for offences under Section 323 IPC. Fine amount imposed upon appellant accused Chhavi Krishan son of Kanhai, shall be deposited within three months from today. In case of default in payment of fine within the 5 of 6 aforesaid period, appellant shall serve out the entire sentence awarded by the trial court vide judgment and order, which is under challenge.

18. Let a copy of the judgment along with lower court record be sent to Sessions Judge, Budaun for compliance. A compliance report be sent to this Court.

19. Copy of the judgement and order be provided to learned counsel for appellant and to the learned AGA as per rules. Order Date :- 22.7.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad 6 of 6