IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2)(b) Description of Case. Criminal Appeal No. 139 of 2006 Date of decision : -25.02.2008 A.F.R. (Approved for Reporting) Not approved for reporting Date:-25.02.2008 Initials of Judge Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal no. 139 of 2006 (Old No. 1892 of 1988) 1. Bhuwan Singh S/o Lachchan Singh 2. Narain Singh s/o Ganga Singh 3. Bache Singh S/o Lachcham Singh All R/o Deegra Patti Palla Borarau Tehsil & District Almora. ---Applicant Versus 1. State of Uttaranchal 2. Sri Jayant Singh S/o Bache Singh R/o village Dingra, Patti Palla Bararo Tehsil Someshwar, District Almora -----Respondent Mr. B. S. Adhikari, Advocate for the appellants. Mr. Nandan Arya, A.G.A. for the State. Per:- Hon’ble J.C.S. Rawat, J. This is a criminal appeal under section 374 of the Code of Criminal Procedure (for short ‘Code’) against the judgment and order dated 19.08.1988 passed by the learned Sessions Judge, Almora in S.T. No. 62/1987 convicting the appellants and sentencing them to undergo RI for three months under section 323 IPC read with section 34 IPC. Each of the appellants were directed to pay fine Rs.1000/- each under section 323/34 IPC. However, the appellants were acquitted under section 147, 148 & 307/34 IPC and the rest of the accused persons, namely Diwan Singh, Girish Singh, Jagat Singh, Smt. Shanti Devi, Smt. Manguli, Smt. Naruli, Anand Singh, Lachham Singh, Mohan Singh, Balwant Singh, Jaint Singh, Kushal Singh, Anand Sundari and Smt. Basanti were acquitted from the charges leveled against them. 2. The appellants Nos. 2 & 3 (Narain Singh & Bache Singh respectively) are since deceased, the appeal stands abated against them under section 394 of the Code of Criminal Procedure. 3. The facts according to the prosecution are that Jayant Singh, complainant was employed in the army from where he was superannuated in the year 1981 and he started living in the village Digara alongwith his wife. On 10.08.1986 at about 11 am. When he was coming from the shop he heard noise of Mohani Devi- wife of one Hira Singh and saw that accused Narain Singh and mother-in-law of Mohani Devi were beating Mohani Dei alongwith Girish Singh, Bhuwan Singh, Govind Singh, Bache Singh, Anand Singh and others. The complainant rescued here. Thereafter, the complainant came to his house and in the evening it was rumored that Mohani Devi had committed suicide. The complainant rescued her. Thereafter, the complainant came to his house and in the evening it was rumored that Mohani Devi had committed suicide. The complainant and other villagers reached in the house of Mohani Devi. The complainant accompanied by Bache Singh – the Gram Pradhan went to the Patwari and brought the Patwari to the village but the dead body of Mohani Devi had been crmated by then. On 08.09.1986 at about 9 pm, Narain Singh gave threats to the complainant that he would kill him. On 09.09.1986 a written complaint of this fact was sent by registered post to the Governor of U.P., the Commissioner Nainital and the District Magistrate, Almora. On 09.09.1986 at 1 pm the complainant was sitting in his house alongwith his wife. At about 2:30pm, the appellants-accused alogwith other co- accused came to the house of complainant. Appellant Bache Singh assaulted Jayant Singh with a ‘lathi’ appellant Bhuwan Singh caught hold of him by his Narain Singh was armed with a ‘Bariyath’. The wife of Jayant Singh was dragged out of her house. When she raised an alarm apprehending danger to her life and chastity Jayant Singh fired a shot in self-defence. According to the prosecution, the complainant was taken to hospital and he was discharged from the hospital on the next day. The Investigating officer arrested him from the hospital and he was sent to jail on 10.09.1986 on the basis of FIR Ex.Kha.2 lodged by the accused. He was released on bail from jail on 14.10.1988 and thereafter he filed a complaint before the Chief Judicial Magistrtae, Almora. After recording the evidence under section 200 & 202 Cr.P.C. the accused persons including the appellants were summoned by the Magistrate. 4. After taking cognizance against the accused by the Chief Judicial Magistrate, the case was committed to the court of Sessions for trail and the trail court framed charges against the accused persons. They denied the charges leveled against them and claimed their trail . 5. The prosecution in support of its case examined five witnesses. Dr. J. S. Tolia PW1 has proved the injury report of Jayant Singh and Dr. R. K. Pande PW2 has proved the injury report of Smt. Anandi Devi. Jaynat Singh PW3, Anandi Devi PW4 and Hayat Singh PW5 have given and eye-witness account of the occurrence. 6. The accused persons were examined u/s 313 Cr.P.C. Bhuwan Singh-appellant also lodged an FIR (Ex.Kha.2) alleging therein that at 2:30pm Jayant Singh fired upon his brother Govind Singh and when appellant Bhuwan Singh tried to rescue his brother he also sustained injury on his person. 7. The appellants in the trial eventually were convicted and sentence by the trial court as mentioned above. In the cross-case under sections 302, 307 IPC & 27 Arms Act, Jayat Singh was acquitted by the Sessions Judge, Almora vide judgment & order dated 19.08.1988. 8. We have heard learned counsel for the accused- appellants and learned A.G.A. for the respondent-State. Perused the record carefully. 9. The learned counsel for the appellants did not dispute the propriety of the finding of the learned Sessions Judge in regard to the guilt of the appellants who had been convicted for the offence punishable under section 323/34 I.P.C. Learned counsel for the appellants submitted that the occurrence took place about twenty one years ago; appellant Bhuwan has attained the age of about 60 years as on today; two of the appellants had died during the pendency of appeal; and no useful purpose will be served if the aged appellant Bhuwan Singh is to serve the sentence of imprisonment and that he may be sentenced to pay fine for the offences of which he had been found guilty. It was further submitted that Govind Singh, the brother of Bhuwan Singh-appellant was shot dead in the incident and a case was registered against Jaynat Singh. Jayant Singh also filed a complaint before the Chief Judicial Magistrate after inordinate delay accusing the accused, including the present appellant Bhuwan Singh. It was further submitted by the learned counsel for the appellants that in the cross case complainant- Jayant Singh was acquitted from the charges on the ground that he fired shot in self-defence. 10. It needs to be motioned here that the present appellant-Bhuwan Singh has assigned the role of catching hold of Jayant Singh by his neck at the time of causing injury by other appellants and co-accused. The incident took place in the year 1986, Bhuwan Singh remained on bail during the pendency of trial as well as during the pendency of this appeal. Keeping in view of the above facts, circumstances, the nature of the prosecution evidence, the manner of the incident, the role of the appellant Bhuwan Singh and the injuries said to have been caused y the appellants and co- accused, it would be just and proper to award the sentence of fine instead of sentencing him for imprisonment. Considering the facts of the case, I am of the view that if he is sent to the jail after a long period that will only add the fuel to the fire to their enmity and further that if a lenient view of fine instead of imprisonment is taken by the court, it may act as cementing factor to the strain in their relations. The ends of justice will be satisfied if suitable modification in the sentence is made in this case. 11. The appeal is partly allowed. Conviction of the appellants under section 323/34 IPC is affirmed. The sentence awarded in modified to the sentence already undergone and appellant-Bhuwan Singh is sentenced to pay fine of Rs.6000/- (Rupees Six Thousand only) under section 323/34 IPC instead of sentence of imprisonment of three months and fine of Rs. 1000/-. The appellant shall deposit the fine with the court concerned within a period of three months from today. 12. Let the record be sent back to the court concerned for compliance and report to be submitted within four months. (J.C.S. Rawat, J.) Dated 25.02.2008 LSR