JUDGMENT
M.C. Jain, J.
1. Four persons, namely, Mushtaq, Israil, Ayyub and Qayyum were tried in S.T. No. 409 of 1979 before the Sessions Judge, Moradabad. The incident had taken place on 25.3.1979 at about 6.30 P.M. in village Bagrauwa, Police Station Bilari, District Moradabad and the F.I.R. was lodged by an injured eye-witness Bhure PW 1 on 26.3.1979 at 4.00 A.M. The distance of the Police Station from the place of occurrence was about 4 miles. One Rashid was murdered in the incident and injuries were caused to Bhure PW 1 and his wife Smt. Jafri. Rashid was done to death by shooting and injury of firearm was also caused to Bhure. Besides, Bhure and his wife Smt. Jafri had sustained lathi injuries too. Firearms were wielded by Ayyub and Qayyum whereas Israil and Mushtaq made use of lathis.
2. The lower Court convicted Mushtaq and Israil under Section 323 I.P.C. as well as under Section 323 I.P.C. read with Section 34 I.P.C. but they were acquitted for the offences under Section 302 I.P.C. and 307 I.P.C. both read with Section 34 I.P.C.
3. Qayyum was convicted under Section 302 I.P.C. for murdering Rashid and also under Section 307 I.P.C. read with Section 34 I.P.C. He was, however, acquitted for the offence punishable under Section 323 I.P.C. and under Section 323 I.P.C. read with Section 34 I.P.C.
4. Ayyub was convicted under Section 302 I.P.C. read with Section 323 I.P.C. and under Section 307 I.P.C. but was acquitted under Section 323 I.P.C read with Section 34 I.P.C.
5. Mushtaq. Ayyub and Qayyum appellants died during the pendency of appeal and the same abated so far as they were concerned as per order dated 24.3.2004. The Court is, therefore, concerned only with appellant Israii whose conviction, as stated above, is under Section 323 I.P.C. and under Section 323 I.P.C. read with Section 34 I.P.C. He has been sentenced to one year’s rigorous imprisonment under Section 323 I.P.C. and one year’s rigorous imprisonment has been awarded for the offence under Section 323 I.P.C. read with Section 34 I.P.C. Both the sentences were directed to run concurrently. It is not necessary to relate the sentences passed against the other accused-appellants since they have died and the appeal had abated respecting them.
6. The defence of Israii before the lower Court was of false implication owing to enmity.
7. At the trial, besides leading medical evidence and that related to investigation of the case, the prosecution examined two eye-witnesses, namely, Bhure injured PW 1 and Mehboob Alam PW 2 whose name found place as eye-witness in the F.I.R.
8. We have heard Sri Ghanshyam Josrii, holding brief of Pt. Mohan Chand, Counsel for the appellant and Sri A.K. Kushwaha, learned A.G.A. from the side of the State. The Counsel for the accused-appellant Israii confined his argument only on the aspect of sentence that offence proved against him being only of having voluntarily caused hurt, he should be treated with leniency in the matter of sentence. It is true that the charge under Section 323 I.P.C. read with Section 34 I.P.C. and under Section 323 I.P.C. simpliciter had been proved against him at the trial on the trustworthy evidence of two eye-witnesses out of whom one was himself the injured. The accused-appellant Israii allegedly wielded lathi. He was not found to share common intention of the firearm wielding Co-accused.The blunt weapon injury of Bhure was a contusion on the dorsum of left hand Which was a simple one. Smt. Jafri sustained a contusion and an abrasion. Her injuries were also simple. The incident took place more than 25 years back on 25.3.1979. He had given a lathi blow to Bhure causing a contusion to him as mentioned above. Then, he and Mushtaq also caused injuries to Smt. Jafri. Mention has been made above regarding her simple injuries too. His conviction under Section 323 I.P.C. simpliciter is for having caused simple hurt to Bhure and under Section 323 I.P.C. read with Section 34 I.P.C. for having caused simple hurt to Smt. Jafri. We feel inclined to accept the submission from the side of the accused appellant Israil that no useful purpose would be served to unsettle his settled life by awarding him substantive sentence of imprisonment for an offence committed more than 25 years back of causing simple injuries to two persons (total injuries 3). We also note from the record that he was arrested after the incident on 2.4.1979 and bail was granted to him by the lower Court on 12.4.1979. He was convicted by the trial Court on 13.8.1981. The bail was granted by this Court on 18.8.1981 consequent upon the filing of the appeal and the bail bonds were furnished in pursuance thereof on 21.8.1981. Thus he suffered incarceration also for about 18 days.
9. The ends of justice would be met to modify his sentence to the period of imprisonment already undergone plus the fine of Rs. 1,000/- on each count i.e. a fine of Rs. 1,000/- for the offence punishable under Section 323 I.P.C. simpliciter and another fine of Rs. 1,000/- for the offence under Section 323 I.P.C. read with Section 34 I.P.C. In default of payment of fine, he shall undergo further rigorous imprisonment for three months on each count. In this way, he shall either pay total amount of Rs. 2,0007- as fine or shall undergo further rigorous imprisonment for six months in default of payment of fine.
10. We accordingly,partly allow this appeal, upholding the Conviction of the accused appellant Israil under Section 323 I.P.C. and under Section 323 I.P.C. read with Section 34 I.P.C. on another count and modifying his sentence to the period of imprisonment already undergone plus payment of fine of Rs. 1,000/- on each count or to suffer rigorous imprisonment for three months on each count (total rigorous imprisonment of six months). The fine should be paid by 31.8.2004. In default of payment of fine, he shall be arrested and lodged in jail to serve out the sentence of imprisonment awarded to be undergone in default of payment of fine indicated above.
11. The Office is directed to send the copy of the judgement along with record of the lower Court within one week. The compliance be reported to this Court by 15.9.2004.