Allahabad High Court
Rameshwar And Anr vs State Of U.P. on 28 March, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:53525-DB Court No. - 46 Case :- CRIMINAL APPEAL No. - 2958 of 1983 Appellant :- Rameshwar And Anr Respondent :- State of U.P. Counsel for Appellant :- Kundan Singh,Harish Chandra Tewari.A.C Counsel for Respondent :- A.G.A. Hon'ble Siddharth,J.
Hon'ble Vinod Diwakar,J.
1. This criminal appeal has been preferred assailing the judgment and order dated 15.11.1983 passed by Sri S.K. Gupta, IInd Additional Sessions Judge, Etah, in Sessions Trial No. 27/1983 convicting and sentencing the appellants under section 394 IPC read with section 397 IPC to undergo 7 years rigorous imprisonment and under section 460 IPC to undergo sentence of life imprisonment directing all the sentences to run concurrently.
2. By the order dated 05.12.1983 both the appellants were released on bail. While appellant no. 2 availed the benefit of liberty of bail, appellant no. 1, Rameshwar, could not be released on bail as per the letter of Senior Superintendent of Central Jail, Agra, dated 01.06.2023.
3. The aforesaid jail authority has informed this Court that court may be apprised of the fact that the appellant no. 1, Rameshwar, has not been released on bail and is languishing in jail since 15.11.1983 and in view of the judgment of this Court passed in P.I.L. No. 2357 of 1997, Bachhe Lal Vs. State of U.P. and others and judgment of the Hon'ble Supreme Court in the case of Sona Dhar Vs. State of Chattisgarh (SLP No. 529 of 2019) his premature release from jail should be considered.
4. During the pendency of this appeal appellant no. 2, Mehndi, son of Usman has died and appeal has been dismissed as abated against him on 03.04.2017.
5. The appeal survives only on behalf of appellant no. 1. Rameshwar, son of Ram Chandra.
6. The prosecution case is in brief is that in the intervening night of 25/26.7.1982, at about midnight, an armed robbery took place at the house of complainant, Shiv Raj Singh in village, Nagla Himmat hamlet of Raya, within the circle of Police Station Jaithara, district Etah, in which Johari, the brother of the complainant was gunned down and Ram Chandra, the father of Shiv Raj Singh, was inflicted Lathi injuries at the hands of the hooligans. On the fateful night, complainant, Shiv Raj Singh, alongwith his nephews, Arjun Singh and Ram Kumar, was sleeping under a thatch on north- eastern corner of the courtyard. Deceased, Johari, was sleeping on the roof in a thatch. J?i Singh and Shri Ram, the brothers of the complainant, were sleeping in another thatch in the west of the courtyard. Complainant's father, Ram Chandra and mother were sleeping in another thatch in front of the chaupal in west-south corner of the house. Ladies and the children were sleeping in a Dehliz, of which the main door of the house in east and another door connecting it in the west towards the court-yard. A burning Lantern was hanging on an iron rod embedded in the northern wall of the staircase from which sufficient light was spreading in the entire house. At about mid night, some miscreants entered the house scaling through the roof from the western side. The complainant and other family members woke up on hearing some sound and they noticed and recognised appellant no.1, Rameshwar, armed with a S. B. B.L. gun, appellant no.2 Mehndi armed with a Lathi and co-accused, Jagdish and Rakshpal, armed with pistols in the house. Appellant no.1, Rameshwer, and Mehndi surrounded the house inmates and warned them not to run otherwise they would be shot-dead, while accused Rakshpal and Jagdish looted the house hold articles, from different apartments of the house. When the hoodlums were about to decamp with the looted property, Johari, the brother of the complainant, and Ram Chandra, father of Shiv Raj Singh, complainant, tried to run raising an alarm, on which Rameshwar fired shots at Johari, which hit on his legs and he fell down in the Dehliz (room). Accused Menhdi assaulted Ram Chandra with Lathi. The shrieks and cries of the house-inmates and the sound of the fires attracted Ram Dularey and Ram Dayal, gun-licencees, who arrived there with their guns and torches, and Dalpat Singh and Ram Nath with Lathis flashing their torches. It is said that they witnessed the entire occurrence from northern side of the Cattle Gher of the complainant standing near a tree and Burji(a place for stocking straw for the cattle). On the challenge of the witnesses and the fires made by the gun-licencees, the ruffians decamped with the looted booty, coming outside the house from the eastern door and then went away in the south. Afterwards the house inmates went inside the Dehliz and found Johari lying wounded who also disclosed that Rameshwar made a fire at him. After some times Johari succumbed to his injuries at the same place. It is alleged that the house inmates and the witnesses saw and recognized fully the accused in the light of the burning lantern in the courtyard and the torches of the witnesses while fleeing.
7. The prosecution witnesses proved the prosecution case alleged in the FIR by producing cogent and reliable evidence. The trial court has considered the prosecution case and defence case in sufficient detail and has found that although the deceased, Johari, received fire arm injuries, but it is not clear who amongst the four accused caused him fatal fire arm injury. P.W.-1 had assigned the role of firing to the appellant no.1, Rameshwar. The conviction of the appellant no.1 and other convicts have been made with the help of section 460 IPC with the finding that the action of the accused makes them jointly liable for causing death or grievous injury while they committed the offence of lurking house trespass or house breaking at night. All the four accused were convicted and sentenced under section 460 IPC and also under section 397 read with section 394 IPC.
8. Learned Amicus Curiae and learned AGA for State have been heard in sufficient detail.
9. This Court has also considered the evidence on record and the findings recorded by the trial court. There does not appears to be any major legal or factual error found in the judgment of the trial court. Minor and ignorable discrepancy in the prosecution case/evidence pointed out by the learned Amicus Curiae appearing for the appellant no.1 could not be made ground for acquitting the appellant no.1.
10. Considering that the appellant is languishing in jail since 15.11.1983 conviction of the appellant is confirmed, but his sentence is reduced to the period already undergone from the sentence to life awarded to him by the court below under section 460 IPC and sentence for seven years under section 394/397 IPC.
11. The judgment and order of trial court stands modified to the extent stated above.
12. Surviving appellant no.1, Rameshwar, is directed to be released from jail forthwith, if not required in any other case.
13. Criminal appeal is partly allowed.
14. Let only a photostat of record of court below sent back and copy of this judgment be notified to the court below within period of ten days for ensuring compliance of Section 437A Cr.P.C., by the appellant no.1.
15. Office will retain the record of trial court for the purpose of hearing of connected Criminal Appeal No. 2806 of 1983.
16. Learned Amicus Curiae Sri. Harish Chandra Tiwari, is entitled to professional fee of Rs. 10,000/- which shall be paid to him within six weeks from the date of demand being raised.
Order Date :- 28.3.2024
Abhishek
(Vinod Diwakar,J.) (Siddharth, J.)