- (1.) N. S. Gupta, J. Accused-appellants Ibad Ullah, Mati Ullah, Farid and Ashiq named above who were convicted under Section 325/34, IPC and 323/34, IPC vide judgment and order dated December 10, 1979 by Sri P. K. Dixit, the then IV Additional District and Sessions Judge, Shahjahanpur and were sentenced to undergo R. I. for a period of five years each under the first count and for one year each under the second count have come up in appeal before this court.
(2.) THE prosecution claimed that on 18-1-1978 at about 7. 00 a. m. in village Udaipur Moora within the Circle of Police Station Mirzapur district Shahjahanpur the accused-appellants, in furtherance of their common intention, had assaulted Shafiq, irfan and Sabir Husain and caused grievous and simple hurt to them. Shafiq is said to have died on 20-1-1978 in con-sequence of the injuries caused to him by the accused persons. THE accused-appellants were accordingly prosecuted under Section 302/307/34, IPC. After needful trial into the matter the learned trial Judge found the accused-ap pellants guilty under Section 325/323/34, IPC. He accordingly convicted and sentenced them as aforesaid. THE accused- appellants felt aggrieved by the said judgment hence the appeal. I have heard Sri P. N. Misra, learned counsel for the appellants and Sri V. B. Singh, learned Addl. Government Advocate for the State, considered their contentions and have gone through the facts and circum stances of the case. 4- Sri P. N. Misra, learned counsel for the accused-appellants did not press before this court on the merits of the case. He only submitted that a period of about 18 year having elapsed since the date of occurrence of this case, a lenient view in the mater of sentence be taken by this Court and that the accused-appellants to let oft on the basis of the sentence under gone by them and after imposing a token fine of Rs. 4,000 each. It was further argued on behalf of the accused-appellants that the complainant Sabir Husain who was the maker of the FIR and who was one of the injur ed and the accused appellants, have since arrived at a compromise. The leaned counsel for the accused-appellants argued that he also tried to com pound the matter with the legal heirs of the deceased Shafiq Ahmad but they were not available. Reliance was placed up n the following rulings. Duli v. State of U. P. , (1991) 28 ACC 628 p. 634, decided by Mr. Justice H. C. Mittal and M. Justice V. K. Verma of this Court and farusuratnan v. State of Tamil Nadu, (1991) 28 ACC 605: 1991 JIC (SC) 738 decided by Hon. Mr. Justice Kuldeep Singh and Hon'ble Mr. Justice M. M. Punchhi, of the Supreme Court of India. I have given my thoughtful consi deration to the submission made by the learned counsel for the appellants as also the observations made by the Hon'ble Supreme Court and the judg ment of this Court in the rulings referred to above. 5. It is clear from the statement of Sabir Husain PW I and Azi n Khan PW 2 that all the four accused- appellants, namely, Ibad Ullah, Miti Ullah, Farid and Ashiq, in furtheranca of common intention of each othir had voluntarily caused hurt to Shafiq, Man and Sabir on 18-1-1978 at about 7. 00 a. m. in village Udaipur Mora, P. S. Mirzapur district Shahjahanpur and that in consequence of the hurt caused Shafiq Ahmad had died on 20-1-1978. According to the medical evidence of Dr. R. C. Asthana the following injuries were found on the person of Shafiq, Irfan and Sabir; Injuries of Shafiq Ahmad (1) Lacerated wound 4. 5 cm. X 0. 5 cm. XO. 5 cm. on the top of skull. (2) Contusion 4 cm. X 1 cm. on the left eye brow. (3) Contusion 12 cm. X 2. 5 cm. on the lateral aspect of the left side chest. (4) Contusion 4 cm. X 1. 5 cm. on the lateral aspect of left side o glutted region. Patient was semi conscious. Not responding to the questions. Pupil of both side were unequal in size. Lt. pupil was more dilated than Rt. side. Injuries of Sabir Husain (1) Lacerated wound 4 cm. X 1. 2 cm. X scalp deep on the Lt. Lateral aspect of the skull. (2) Contusion 3 cm X 1. 5 cm. on the posterior aspect middle part Rt. arm. Injuries of Irfan (1) Lacerated wound 6. 0 cm. X 0. 8 cm. "x bone deep on the arterial aspect of the skull. (Y) Contusion 2 cm. X 1 cm. on the front of nose. (3) Abraded concussion 5 cm. X 1. 5 cm. on the top of Lt. shoulder. (4) Contusion 5 cm. X 2 cm. on the lateral aspect middle part Rt. arm. (5) Contusion 4 cm. X 2 cm. on the top of Rt. shoulder. (6) Contusion 11 cm. X 1. 5 cm. on the Lt. side chest. (7) Contusion 3 cm. X 1. 5 cm. on the posterior aspect lower part of Rt. forearm 3 cm. above the wrist. 6. The records of the case reveals that in spite of the charges under Section 302/34 and 307/34, IPC having been framed. The trial Court had found the accused appellant guilty only under Sections 325/323/34, IPC. The finding of fact recorded by the trial Court that the accused appellants were guilty of causing grievious hurt to Sri Shafiq Ahmad and simple hurt to Irfan and Sabir, find full support from the evidence of the witnesses of fact namely, Sabir Husain PW 1, Azam Khan PW 2 as also the medical evidence of Dr. R. C. Asthana and I find no cause to differ with the same. 7. True it is that there is no evidence on record to suggest as to who caused fatal injuries to Shafiq, yet the fact remains that Shafiq, the and other injured persons, viz. Irfan and Sabir were assaulted by all the four accused appellants and therefore, all of them were vicariously liable and were rightly convicted by the Court below. 8. Now coming on the point of sentence I find that Section 325, IPC lays down that the offence of voluntary causing grievous hurt shall be punished with imprisonment of either discretion for a term which extend to 7 years and shall also be liable to fine. So the offenders guilty of offences punishable under Section 325, IPC are to be necessarily punished with imprisonment and also with fine. 9. It was pointed out to me by the learned counsel for the accused-appellants himself that the accused- appellants have undergone imprison ment only for a week or so at the trial stage. 10. Keeping in view the number and nature of injuries caused and the fact that in consequence of the injuries caused, Shafiq Ahmad had died after two days and having due regard to the fact that a period of about 18 years has since elapsed after the date of occurrence of the case and the observation of the Hon'ble Supreme Court and this Court, I am of the opinion that it will meet the ends of justice if the accused appellants are sentenced to undergo R. I. for a period of one year and to pay a fine of Rs. 5,000 and in default of the payment of the same to undergo R. I. for a period of six months each under Section 325, IPC and to pay a fine of Rs. 2,000 each and in default of the payment of the same to undergo simple imprisonment for a period of three months each under Sec. 323/34, IPC. The accused appellants are granted two months' time to deposit these fines. It is directed that if the fine is deposited as aforesaid, a sum of Rs. 1,500 shall be paid to the injured Sabir Husain and Rs. 1,500 to the injured Irfan as compensation for their injuries. It is further directed that a sum of Rs. 2,500 shall be paid to the legal heirs of Shafiq Ahmad as compensation for the injuries caused to Shafiq Ahmad. 11. Thus while sustaining the conviction of the accused-appellants under Section 325/323/34, IPC the sentence imposed by the trial Court on the accused-appellants is modified as aforesaid. Let the record of the case be sent to the trial Court for needful compliance. Sentence modified. .;