SHASHI KANT,J. - (1.) Heard Sri Yogendra Misra, learned counsel for the revisionists, learned A.G.A. for the State of U.P. and perused the record.
(2.) This Criminal Revision under Section 397/401 Cr.P.C. has been filed against the judgment and order dated 05.07.1995 passed by the learned Sessions Judge, Mirzapur in Criminal Appeal No. 18 of 1992 (Gappu and others v. State of U.P.) whereby appeal filed by the accused revisionists has been dismissed and judgment and order dated 12.08.1992 passed by the Assistant Sessions Judge, Mirzapur in Sessions Case No. 217 of 1988, State of U.P. v. Gappu and others) , whereby the accused revisionists were convicted and sentenced for three years rigorous imprisonment under Section 307/34 IPC and one year rigorous imprisonment under Section 324/34 IPC has been affirmed.
(3.) Learned counsel for the revisionists urged that : 3. 1. In the charge framed against the revisionist Ram Narain, it is stated that he has caused injuries to the injured persons. He has also been convicted under Sections 307/34 and 324/34 IPC for causing injuries to the injured persons while there is no evidence to the effect that revisionist Ram Narain has caused injury to anyone. Above wrong narration of facts in the charge has caused serious prejudice to the revisionist Ram Narain and he became handicapped to put his defence properly. As such, the revisionists are entitled to be acquitted only on this ground. 3. 2. The first informant Jhaoo Lal has admitted that he did dictate the FIR which is clearly indicative of the fact that FIR was written in the police station on dictation of the police. 3. 3. In the Chithi Majrubi, there is no mention of the time of the incident and crime number, which goes to show that the FIR is ante time. 3. 4. Injured Gopal was sent to the Hospital before lodging of the FIR which shows that the entire prosecution story is false. 3. 5. At the time of the incident, there was a dark night and due to this, alleged incident could be seen by anyone. This fact has also found support from the evidence of P.W. 2 and P.W. 3. 3. 6. The Judgments and orders passed by the Courts below are against the evidence available on records, based on misreading of evidence available on record and are bad in law. 3. 7. The revisionist Ram Narain is father of other revisionist Gappu. The revisionist Ram Narain is an old, weak and infirm person of 65 years while revisionist Gappu is aged about 45 years old and under obligation of family liabilities. 3. 8. The sentence awarded to the revisionists by the Courts below is harsh and excessive in the facts and circumstances of the case. 3. 9. The revisionists are previously convicted and except the present case no criminal case is pending against them. 3. 10. The Courts below have complied the mandatory provisions of Sections 360 and 361 of Cr.P.C. which is an illegality, apparent on the face of record. 3. 11. In support of his above contentions, learned counsel for the revisionist placed reliance on decisions of following cases in support of his above contentions. 3. 12. In Sukhram and others v. State of U.P., AIR 1974 SC 323 , in this case the appellants were convicted under Sections 307/149 and 147 IPC. Considering the facts of the case, the Court has altered their conviction to Section 324/149 from Section 307/149 and also reduced the sentence awarded to the appellants. 3. 13. In Satsen v. State of U.P., 2014 ACR 1407 , in this case considering the 66 years age and ailment of the appellant and the fact that appeal came up for hearing after 32 years, sentence of the appellant under Section 307 IPC was converted into fine. 3. 14. In Babu Ram and Others v. State of U.P., 2012 ACC 78 421 , in this case also after considering the facts and circumstances of the case, conviction of the appellants was converted to Section 324/34 IPC from Section 307/34 IPC and the Magistrate concerned was directed to consider the application for compounding of the offence.;