Basheer vs State of U.P.

B.K. Sharma, J.—When this revision was taken up for hearing, none appeared for the revisionists and the revisonists also did not appear in person even after the revision of the list. The learned A.G.A. was heard and the record was gone into with his help.

The prosccutoin story was that the she goats of Saghcer, Aqueel and Basheer were grazing the peri of sugarcane of Behsi informant about which the informant kept on raising objection, that on 651980 at 5.30 p.m. when the informant and his cousin Rampati went to look after their agricultural field they saw this accused grazing 45 shegoats in the same and when he was driving cattle to the cattle pound, the accused Sagheer, Basheer, Mohd. Raza and Aqueel reached there and tried to stop him and assaulted the complainant party with lathi, whereupon, the complainant side used lathi in self defence. The informant and Rampati received injuries in the occurrence. The witnesses came to the spot who intervened.

The prosecution evidence at the trial was believed by the trial Court and, he therefore, convicted all the 4 accused of the offence under Section 426 IPC and awarded R.I. for 3 months for that offence and also convicted for the offence under Section 323, IPC and awarded them R.I. for a period of 6 months each. He also convicted them of the offence under Section 325, IPC and sentenced them to R.I. for a period of 1 year and to pay fine of Rs. 100/ and the 4 accusedpersons preferred Criminal Appeal against their conviction and sentence. The Sessions Judge. Azamgarh heard the appeal and came to the conclusion that the learned trial Court had failed to frame a charge under Section 34 IPC and this has prejudiced the accused in their defence but the occurrence being of the year 1980 and the appeal being taken up in 1986, he set aside the conviction under Section 325, IPC instead of making a remand. He discussed various pleas raised before him by the witness and after consideration of the same, found that there was testimony of 2 injured witnesses who WCM also corroborated by the injury reports and acted upon the same lie also found that the injuries of Aqueel accused were also explained. He gave the benefit of his alibi to Sagheer accused and ultimately he allowed the appeal in part and acquitted Sahgeer accused of all the offences and sustained the conviction of Busheer, Mohd. Raza and Aqueel accused for the offences under Sections 323 and 426, IPC and awarded the sentence of fine of Rs. 500/ each under Sectoin 323, IPC and Rs. 100/ each under Section 426, IPC and time was given for payment of fine. In this revision, a prayer was made for stay of realisation of fine but this prayer was refused on 2851986. Now today, the revisionists are absent and their Counsel is also not appearing. It appears that they would have paid the fine or it would have been realised from them. However, it cannot be assumed. Consequently, the revision is dismissed as there is no infirmity in the judgment of the appellate Court. However, since the appellate Court has failed to provide for the contingency of nonpayment of fine, it is directed that in default of payment of fine under Section 323, IPC each one of the accusedrevisionists Basheer, Mohd. Raza and Aqueel shall suffer simple imprisonment for 10 days and in defualt of payment of fine for the offence under Section 426, IPC they shall suffer simple imprisonment for a period of one week.

Let a copy of this judgment be sent to the Sessions Judge, Azamgarh for information and compliance. The compliance report shall be submitted to this Court within 2 months from today.

Revision dismissed