Vinod Kumar vs State of U.P. and Others

Leave granted.

The present appeal is directed against the order dated 17.7.1998 passed by the High Court of Allahabad, whereby the unexpired portion of the sentence of five years rigorous imprisonment has been converted into fine, and to the sentence already undergone. The High Court confirmed the conviction of both the accused Bhola and Surajpal. The trial Court held Balraj Pal guilty of Section 323 IPC only while Bhola and Suraj Pal accused held guilty u/s 304 Part II and Section 323 read with Section 34 IPC. They were held not guilty u/s 302 and Section 323 and were sentenced under Sections 149 and 147 IPC to five years rigorous imprisonment. Accused Girja, Inderjeet and Budhu were acquitted. The present appeal is preferred against the said order of the High Court for the enhancement of their sentence. Both were also sentenced u/s 323, 34 Indian Penal Code for one year rigorous imprisonment under it. Both the sentences were to run concurrently.

The submission on behalf of the appellant is that once the said two were convicted u/s 304 Part II, IPC the sentence of imprisonment already undergone which was only few months with fine imposed by the High Court was not justified and was too meager. The High Court should have maintained the sentence. On the other hand, learned Counsel appearing for the accused submits that this was a case in which accused is out of jail since 1998. Further it is a case of only one lathi blow on Partiraj, the deceased who died only on the next date. We heard submissions of learned Counsel for the parties and examined the judgment of courts below and its record. On the facts and circumstances of this case, we feel it appropriate that the sentence of one year to the accused with fine already imposed would do the full justice. Accordingly, the present appeal is allowed to this extent. The High Court order is modified to be read as sentence to the said two accused under Sections 149 304 Part II, IPC to be one year rigorous imprisonment with fine. The present appeal is accordingly allowed with the aforesaid observation. The period already undergone will be excluded from the total period of one year.