# Sundu & Ors v. State of U.P

- **Citation:** (2020) 2 ILRA 705
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-20
- **Case number:** Criminal Appeal No. 623 of 1989
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sundu-ors-v-state-of-u-p-45314
- **Pages:** 4

## Headnote

Law-Indian Penal CodeSection 452, 323/34 - Appeal against
conviction.

Considering the facts and circumstance of the
case, the alleged incident which took place in
the year 1987 about 32 years ago and now
appellants are more than 60 years of age and
considering that the accused/appellants had
suffered the agony of conviction for more than
32 years and no criminal antecedents have
been shown to their credit after passing of so
much long period out of jail, at this stage it
does not appear appropriate to send the
accused-appellant to jail. (Para 17)

The accused-appellants are sentenced to the
period already undergone by them in jail during
trial. (Para 19)

Criminal Appeal partly allowed. (E-2)

List of cases cited:-

## Text

2 All. Sundu & Ors.Vs. State of U.P.
705
(2020)02ILR A704

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.05.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 623 of 1989

Sundu & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri
Hemendra
Kumar,
Sri
Anupama
Tripathi, Sri Rakesh Kumar Tripathi

Counsel for the Opposite Party:
A.G.A., Sri Dushyant Kumar

A. Criminal
Law-Indian Penal CodeSection 452, 323/34 - Appeal against
conviction.

Considering the facts and circumstance of the
case, the alleged incident which took place in
the year 1987 about 32 years ago and now
appellants are more than 60 years of age and
considering that the accused/appellants had
suffered the agony of conviction for more than
32 years and no criminal antecedents have
been shown to their credit after passing of so
much long period out of jail, at this stage it
does not appear appropriate to send the
accused-appellant to jail. (Para 17)

The accused-appellants are sentenced to the
period already undergone by them in jail during
trial. (Para 19)

Criminal Appeal partly allowed. (E-2)

List of cases cited:-

1. Bankat and another Vs. St. of Mah., (2005) 1
SCC, 343,

2. Sattan Sahani Vs. St. of Bihar and others,
(2002) 7 SCC, 604,
3. Uthem Rqajanna Vs. St. of A.P., 2005 (11)
SCC, 531,

4. Neelam Bahal and another Vs. St. of
Uttarakhand, (2010) 2 SCC, 229;

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard learned Counsel for the
appellants and learned AGA for the State.

2. This criminal appeal has been filed
against the judgment and order dated
27.02.1989 passed by IVth Additional
Sessions Judge, Bijnor passed in Session
Trial No.311 of 1987, by which the
appellants have been convicted to undergo
one year R.I. under Section 452 I.P.C. And
Rs.1,000/- fine each under Section 323/34
I.P.C. and in default of payment of fine
shall undergo R.I. for six months and it
was further ordered to pay this amount of
fine to complainant as compensation.

3. The present appeal, as per report
of Chief Judicial Magistrate, Bijnor the
appellant no.3, namely, Lokendra has
expired. The present appeal with regard to
appellant no.3, Lokendra is concerned was
abated vide order dated 19.11.2018 passed
by coordinate Bench of this Court. The
present appeal is confined to appellant
nos.1 Sundu and appellant no.2 Jagga
only. The appellant no.2, Jagga is
presently lodged in jail. Since the nonbailable warrants were also issued against
the appellant no.1 but it could not be
served upon the appellant no.1 so the
appellant no.1 was not arrested but now
the learned counsel for the appellants is
arguing the appeal on behalf of the
appellant nos.1 and 2.

4. Brief facts of the case are that on
22.07.1987 at about 4.00 p.m. the
706 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant no.3, Lokendra, appellant no.2
Jagga and appellant no.1 Sundu armed
with dandas and the other accused armed
with stones entered into the house of the
complainant.
The
husband
of
the
complainant was lying down inside the
house and beaten the husband of the
complainant by dandas and stones. The
husband of the complainant raised alarm,
which attracted the attention of the
witnesses Jasrath and Pappu, who saved
the husband of the complainant from the
accused persons. The husband of the
complainant received injuries and he was
medically examined on the same day at
about 8.45 p.m. by Dr. S.K.Rastogi,
Medical Office Incharge, Meerut. It was
further mentioned in the complaint that the
first information report could not be
lodged at the police station because the
police has not noted down the report of the
complainant.
The
husband
of
the
complainant sent a telegram to the
Superintendent of Police, Bijnor and copy
of the same has been exhibited as Ka-1
was filed by the prosecution. The house of
the complainant later-on succumbed to the
injuries in Delhi where an inquest was
prepared and post mortem was conducted
by Dr. D.N.Bhardwaj on 14.03.1986. After
the death of her husband, the complainant
moved an application to Superintendent of
Police, Bijnor alleging the entire incident
and on the basis of that application, a case
was
ordered
to
be
registered
and
investigated.

5. The first information report Ext.
Ka-3 and G.D.Report Ext.Ka-4 were
prepared on the basis of the application
of the complainant to Superintendent of
Police,
Bijnor
Ext.Ka-2.
The
first
information report and the G.D. Report
were
duly
proved
by
the
PW-2,
Investigating Officer of the case.

6. PW-5, Dr.S.K. Rastogi, who has
medically examined the injured, Gyun
Singh at about 8.45 p.m. has found seven
injures,
contusion,
two
abraded
contusion, Linear abrasion, contusion
and complaint of pain on back of lower
part of neck and back of chest on both
sides.

7.
PW-6, Dr. D.N.Bhardwaj,
Medical Officer, Lady Harding Medical
College, Delhi, who conducted the postmortem was also examined, who proved
the post-mortem report Ext.Ka-9.

8. The prosecution in order to
prove its case has examined PW-1, Smt.
Kishan Dai, wife of the deceased, eyewitnesses of the case, PW-2, Pappu and
PW-3, Jasrath, PW-4, K.M.Mishra, the
Investigating Officer of the case, PW-5,
Dr.S.K.Rastogi,
Medical
Officer,
District
Hospital,
Bijnor,
PW-6,
Dr.D.N.Bhardwaj,
Medical
Officer,
Lady Harding Medical College, Delhi.
The accused persons did not produce any
witness in their defence.

9. PW-2 Pappu and PW-3 Jasrath
are the eye witnesses of the occurrence.
They narrated the entire prosecution
version in their statements on oath. Thus,
the statement of the complainant is fully
corroborated by the evidence of PW-2
and PW-3. PW-2, is the real brother of
the deceased as per his own admission in
the cross-examination but the PW-3 is an
independent eye witness of the incident.
Both the witnesses are residing in the
same locality as is clear by their
unrebutted statement on this point and,
therefore, they are natural witnesses. No
enmity of any kind of the accused with
theses witnesses is established or proved
by any evidence on record.
2 All. Sundu & Ors.Vs. State of U.P.
707

10. After taking the prosecution
evidence, the statement of the accused
under Section 313 Cr.P.C. was recorded
and the accused had not led any evidence
in their defence. The accused in their
statements recorded under Section 313
Cr.P.C. alleged that they have been falsely
implicated in the present case due to
village partybandi.

11. Learned counsel for the appellant
submitted that the appellant no.2 was
earlier in jail got for some time and now
the appellant no.2 is in jail for the last
about eight months and the appellant no.1
has was also in jail for some time. He next
submitted that it was the first offence of
the accused/apellants and after conviction
the accused had not indulged in any other
criminal activity. He further submitted that
on the question of legality of sentence he
is not pressing this appeal and only
pressing on the quantum of sentence and
he has prayed for taking lenient view
considering the age of the accused and
their age related ailments.

12. Learned A.G.A. on the other
hand has opposed the argument of learned
counsel
for
the
appellant
and
has
submitted that the conviction of the
appellant nos.1 and 2 are fully justified
and no interference is required in their
conviction, hence the appeal against the
appellant nos.1 and 2 be dismissed and
accused be directed to suffer the sentence.

13. In the case of Bankat and
another Vs. State of Maharashtra,
reported in (2005) 1 SCC, 343; accused
were convicted under Section 326 I.p.C.
and sentenced for one year imprisonment
with fine. Hon'ble Apex Court reduced the
sentence to the period already undergone
on the ground that the parties have settled
the dispute outside the Court and 10 years
have elapsed from the date of incident.

14. In the case of Sattan Sahani Vs.
State of Bihar and others, reported in
(2002) 7 SCC, 604; accused were
sentenced
to
three
years'
rigorous
imprisonment under Section 326 I.P.C. In
appeal, Hon'ble Supreme Court reduced
the sentence to the period already
undergone on the ground that the incident
took place two decades back and parties
have also compromised.

15. In the case of Uthem Rqajanna
Vs. State of A.P., reported in 2005 (11)
SCC, 531, accused was convicted and
sentenced for six months under Section
304-A I.P.C. along with fine and for three
months under Section 338 I.P.C. In appeal
Hon'ble Supreme Court has reduced the
sentence to the period already undergone.

16. In the case of Neelam Bahal and
another
Vs.
State
of
Uttarakhand,
reported in (2010) 2 SCC, 229; accused
was convicted under Section 307 I.P.C.
and was sentenced to undergo seven years'
rigorous imprisonment. Hon'ble Supreme
Court has convicted accused under Section
326 I.P.C. and reduced the sentence to
period already undergone, i.e. almost one
year, on the ground that the incident
happened in the year 1987 when the
accused was of young age of 25 years.

17. After considering the rival
submissions made by learned counsel for
the appellant, considering the facts and
circumstance of the case, considering that
the alleged incident which took place in
the year 1987 about 32 years ago and now
appellant nos.1 and 2 are more than 60
years of age and considering that the
accused/appellant nos.1 and 2 had suffered
708 INDIAN LAW REPORTS ALLAHABAD SERIES
the agony of conviction for more than 32
years and no criminal antecedents have
been shown to their credit after passing of
so much long period out of jail, at this
stage it does not appear appropriate to
send the accused-appellant to jail. It has
been pointed out by learned counsel for
the accused-appellant that the accusedappellant
had
remained
in
jail
for
sometime during trial.

18. Considering all these facts, it
would be appropriate and proper that the
accused be sentenced with the period
already undergone and the amount of fine
be enhanced.

19. Considering all the facts and
circumstances of the case, the accusedappellant nos.1 and 2 are sentenced to
the period already undergone by them in
jail during trial and an amount of fine of
Rs.5,000/- be imposed instead of sending
them to jail.

20. Accused-appellant nos.1 Sundu
and appellant no.2, Jagga are both being
directed to deposit the fine of Rs. 5,000/-
before learned lower court within two
month from the date of issuance of
certified copy of this order, out of which
Rs.2,500/-
shall
be
paid
to
the
complainant, if she is alive and in case
she is dead then it would be paid to her
legal heirs and in default of payment of
fine as directed above, accused shall
undergo simple imprisonment for a
period of fifteen days. If the said amount
is deposited by the appellant no.2, Jagga
he shall be released forthwith, if not
wanted in any other case and the
appellant no.1, Sundu who was not
arrested in compliance of the order of
this Court need not to surrender. The
appellant no.1, Sundu will also deposit
the fine of Rs.5,000/- within two months
from the date of issue of certified copy
of this order.

21. Appeal is partly allowed against
the appellant nos. Sundu and appellant
no.2, Jagga in the above terms.

22. Copy of this order be
transmitted to the concerned lower court
forthwith for compliance.
----------
(2020)02ILR A708

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2020

BEFORE
THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Appeal No. 860 of 1998
connected with
Criminal Appeal No. 1123 of 1998

Munna ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.C. Dwivedi, Sri I.K. Chaturvedi

Counsel for the Opposite Party:
A.G.A., Sri P.B. Umrao, Sri Rajeev
Trivedi, Mrs. Swati Agrawal, Sri Amit
Mishra, Sri Viresh Mishra

A. Criminal Law-Indian Penal CodeSections 302, 323, 324 & 307 - Appeal
against conviction.

The statement of witness regarding injuries
of
deceased
and
injuries
on
injured
persons
are
corroborated
by
medical
evidence. The presence of injured eyewitness is not doubtful, therefore, their
statement are liable to be believed.(Para
18)