KALLU AND OTHERversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2515 of 1987

Kallu And Other
                                                               .....Appellant(s)
                                       Versus
State of U.P.
                                                             .....Respondent(s)

Counsel for Appellant(s)           :    Prem Chandra Dwivedi, V.K. Sharma
Counsel for Respondent(s)          :    A.G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Shri Prem Chandra Dwivedi, learned counsel for the appellants and
Shri Rahul Asthana, learned A.G.A. for the State-respondent.

2. This Criminal Appeal has been preferred against the judgment and order
dated 15.09.1987 passed by Additional District Judge in S.T. No. 436 of
1986 thereby convicting and sentencing the appellants to undergo two years
R.I. U/s 325 I.P.C. with a fine of Rs.500/- each.

3. It is to be noted that the the present appeal has already been abated qua
appellant no.1 namely Kallu vide order dated 18.08.2022 of this Court and
now the present appeal survives only with respect to the appellant no.2
namely Chhinga.

4. The prosecution case, in brief, is that on 12.06.1985, the informant's
brother, Islam @ Aslam, was sitting in his bara with cattle when a buffalo
cart belonging to the accused entered the bara and the animals started
grazing. When the complainant's brother drove them out, the accused
persons became annoyed. Thereafter, accused Kallu, armed with a farsa, and
accused Chhinga, armed with a lathi, came to the spot, abused the victim,
and upon protest, assaulted him with the intention to cause death. As a result
of the assault, the injured sustained multiple injuries, including a fracture in
his right hand.

5. A first information report was lodged, and the injured was medically
examined. After investigation, a charge sheet was submitted under Sections
308, 323, and 325 I.P.C.
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6. Charges were framed and read over to the accused, who denied all the
allegations and claimed trial.

7. The prosecution examined as many as five witnesses, namely: P.W.-1
(complainant), P.W.-2 (injured, Islam @ Aslam), P.W.-3 Dhammu, P.W.-4
Dr. D.S. Sharma, and P.W.-5 S.I. Surendra Pal Singh.

8. The complainant (P.W.-1) supported the prosecution case. P.W.-2, the
injured witness, who was deaf and mute, communicated the occurrence
through gestures. P.W.-3 Dhammu interpreted and explained the gestures of
P.W.-2., P.W.-4 Dr. D.S. Sharma proved the injuries sustained by the
injured, and P.W.-5 S.I. Surendra Pal Singh narrated the course of
investigation and the evidence collected.

9. Upon appreciation of the evidence, the learned trial court held that the
prosecution failed to prove the offence under Section 308 I.P.C., but found
the appellants guilty under Section 325 I.P.C. and sentenced him to undergo
two years' imprisonment along with a fine of Rs. 500/-.

10. The learned counsel for the appellant no.2 does not dispute the finding of
guilt recorded by the trial court and has confined his arguments only to the
question of sentence. It is submitted that the incident is of the year 1985, i.e.,
about four decades old. The appellant no.2 has undergone seven days'
imprisonment when he was sent to jail in execution of a non-bailable warrant
issued against him. It is prayed that the sentence of imprisonment be
modified to the period already undergone.

11. Learned A.G.A. supports the conviction.

12. The issue that arises for consideration is whether the substantive
sentence of imprisonment requires modification.

13. The testimony of P.W.-2 carries great evidentiary value. Merely because
the victim was deaf and mute, his testimony cannot be discarded,
particularly when it has been interpreted and explained by P.W.-3 Dhammu.
The presence of the injured at the place of occurrence is undisputed, and his
testimony is corroborated by medical evidence and the injury report duly
proved by P.W.-4 Dr. D.S. Sharma, which discloses a fracture in his right
hand. The prosecution evidence is consistent and reliable, and no material
contradiction has been pointed out to disbelieve the prosecution case.
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                                    14. The trial court has rightly convicted the accused-appellants for the
                                    offence under Section 325 I.P.C. The findings of guilt recorded by the trial
                                    court under Section 325 I.P.C. do not call for any interference. However, so
                                    far as the question of sentence is concerned, this Court cannot ignore that the
                                    incident occurred in the year 1985, and nearly four decades have elapsed.
                                    The appellant no.2 has faced prolonged trial and appellate proceedings. It is
                                    a settled principle that long lapse of time and prolonged litigation are
                                    mitigating circumstances warranting reduction of sentence.

                                    15. In the facts and circumstances of the case, the ends of justice would be
                                    served if the sentence is modified to the period already undergone while
                                    maintaining the fine.

                                    16. Accordingly, the conviction is affirmed. However, the sentence is
                                    reduced to the period already undergone by the appellant no.2, while
                                    maintaining the fine imposed by the trial court.

                                    17. The appeal is partly allowed.

                                    18. In case the fine has not been deposited, the same shall be deposited
                                    within a period of two months from the date of receiving a certified copy of
                                    this judgment.

                                    19. Let a copy of this judgment, along with the trial court record, be
                                    transmitted to the trial court for necessary compliance.

                                    March 28, 2026
                                    Pravesh Mishra
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PRAVESH KUMAR MISHRA
High Court of Judicature at Allahabad