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2017 DIGILAW 932 (ALL)

Shri Pal v. State of U. P.

2017-04-04

VIJAY LAXMI

body2017
JUDGMENT Vijay Laxmi, J. Heard Shri Amit Chaudhary, learned counsel for the appellants and Shri Afaq Zaki Khan, learned AGA for the State and gone through the record. 2. The challenge in this appeal is to the judgment dated 22.01.1996 passed by 5th Additional Sessions Judge, Lakhimpur Kheri in S.T. No. 43 of 1992, arising out of Crime No. 67 of 1991, under Section 307 IPC read with Section 34 IPC, Police Station - Mailani, District - Lakhimpur Kheri, where the appellants, namely Shri Pal, Ganshyam, Tota Ram and Sohan Lal were found guilty of offence punishable under Section 307 IPC read with Section 34 IPC and sentenced to undergo rigorous imprisonment of 5 years. 3. Background facts in nutshell are as follows: - 4. The complainant, the accused and victim all belong to village Nagariya. The complainant Ram Prasad lodged a report on 11.06.1991 stating that incident occurred on 10.6.1991 at about 5.00 PM when he was going towards north of his village to Danuaa Talab for purchasing fishes along with Sri Ram Bhurji, Ram Chandra of his village and his younger brother Ram Bharose. They were bare handed. At that time, Sri Pal with pistol and lathi, Ganshyam with Banka, Tota Ram with axe and Sohan Lal with Lathi in his hand reached on the spot. Shri Pal fired on them but they escaped and started running back towards Jangal. However, accused chased them and caught the informant. They caused him to fall down and assaulted him with lathi, axe and Banka inflicting serious injuries on him. Shri Ram, Ram Chandra and his younger brother got afraid, who saw the incident from some distance. They started pelting stones on the accused and raised outcry. Thus the accused fled away from the spot threatening them to kill. Complainant’s brother, Sri Ram and Ram Chandra took the injured to the hospital for treatment. The report was lodged by the victim-complainant next day on 11.06.1991. The report is exhibit as K-1 on record. 5. Investigation was conducted by Sub-Inspector, Shri Kripa Shankar Verma, who inspected the spot, prepared site plan exhibit K-4, recorded statements of witnesses, the blood stained clothes were taken by him into custody and prepared recovery memo exhibit K-5. After completing investigation, the charge sheet exhibit K-6 was submitted. 6. The report is exhibit as K-1 on record. 5. Investigation was conducted by Sub-Inspector, Shri Kripa Shankar Verma, who inspected the spot, prepared site plan exhibit K-4, recorded statements of witnesses, the blood stained clothes were taken by him into custody and prepared recovery memo exhibit K-5. After completing investigation, the charge sheet exhibit K-6 was submitted. 6. The prosecution examined five witnesses, namely, Ram Prasad informant PW-1, Ram Chandra P.W-2, Ram Bharose P.W.-3, Constable Rajdev P.W.-4 and Kripa Shankar Verma, P.W.-5 in support of their case. The accused in their statements under Section 313 Cr.P.C stated that they were innocent, who were falsely implicated in this case due to enmity. 7. It is argued by learned counsel for the appellants that the fight was accidental which was the result of sudden quarrel. It is submitted that the facts that appellants, complainant and all witnesses belonged to same Village Nagariya, Police Station - Mailani, the nature of injuries which were all simple, the long lapse of period of about 26 years may be taken into consideration and the case of appellants may be considered under Section 324 IPC in place of Section 307 IPC. Learned counsel submitted that the appellants may be considered sympathetically who were willing to pay compensation to victim. 8. Learned Additional Government Advocate supported the impugned judgment. 9. In this case the prosecution has established by reliable evidence on record that the injuries were inflicted by the accused on Ram Prasad by lathi, danda and axe. It is found from injury report that injuries No. 1 and 2 were incised wounds which were caused on right side of face and above left elbow. Injury No. 5 was lacerated wound on shoulder border near right collar bone. Injuries Nos. 3, 4 and 6 were contusions. The injury Nos. 2, 3, 4, 5 and 6 were found to be simple in nature and injury No. 1 was kept under observation. There is nothing on record to show that any serious injury was caused by the accused to the victim. There were four accused, who were involved in the incident. Tota Ram had axe in his hand, who caused incised wound to victim. Shri Pal was having pistol in his hand. But it is not prosecution case that any fire arm injury was caused to victim. There were four accused, who were involved in the incident. Tota Ram had axe in his hand, who caused incised wound to victim. Shri Pal was having pistol in his hand. But it is not prosecution case that any fire arm injury was caused to victim. Thus having considered the number of accused, the nature of injuries caused to the victim and other circumstances of the case, I am of the view that the fight was accidental owing to sudden quarrel. The intention precedes the act attributed to accused. Therefore, intention is to be gathered from all circumstances, and not merely from the consequences that ensue, the nature of weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where injury is inflicted or some of the factors that may be taken into consideration to determine the intention. In this case, the victim suffered simple injuries. The accused though armed with pistol, axe, banka and lathi but the severity of blow indicated that accused were not tempted to inflict serious injuries. It is very significant. It seems to me that the accused had no intention to commit murder. They had no motive either. Thus, the conviction under Section 307 IPC is not called for. At the most, the accused are found guilty under Section 324 IPC read with Section 34 IPC. The accused are not found guilty under Section 307 IPC. 10. The occurrence took place in the year 1991 i.e. about 27 years ago. Appeal against conviction was filed in 1996. Presently, the convicts Shri Pal A-1, aged about 56 years, Ganshyam, A-2, aged about 53 years, Tota Ram, A-3, aged about 49 years and Sohan, A-4, aged about 44 years. I am conscious that the crime is affront to the human dignity, however, considering the willingness of the appellants to pay compensation who belong to same village and long lapse of period are indeed considerations which may weigh in favour of the appellants for not being awarded a long sentence of imprisonment. 11. The Hon’ble Supreme Court has urged all the Courts time and again to exercise this power liberally which was intended to reassure the victim that he or she is not forgotten in the criminal justice system and to meet the ends of justice in a better way. 11. The Hon’ble Supreme Court has urged all the Courts time and again to exercise this power liberally which was intended to reassure the victim that he or she is not forgotten in the criminal justice system and to meet the ends of justice in a better way. In Hari Kishan v. Sukhbir Singh, (1988) 4 SCC 551 the Supreme Court urged all courts to exercise their power under Sec. 357 Cr.P.C. liberally to safeguard the interests of the victim. In this case, the victim and his relatives were attacked by seven persons in the field. The victim received severe head injuries which impaired his speech permanently. The accused were convicted by trial court under Secs. 307, 323 and 325 of IPC read with Sec. 149 and sentenced to imprisonment for three to four years. On appeal, the High Court acquitted two accused and quashed the conviction of other five accused under Sec. 307/149 IPC, but maintained their conviction under Sec. 325/149 IPC. The accused persons were granted probation and each was directed to pay compensation of Rs.2500/- to victim. On appeal, the Supreme Court did not disturb the sentence of imprisonment but ordered the accused persons to jointly pay a total compensation of Rs.50,000/- to the victim under Sec. 357(3) Cr.P.C. recording following reasons: It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. 12. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. 12. In Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 the Supreme Court went a step further and observed that the award or refusal of compensation in a particular case may be within the Court’s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. To quote: While the award or refusal of compensation in a particular case may be within the Court’s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order Under Sec. 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family. 13. In K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230 the Apex Court made it clear that the whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Sometimes the situation becomes such that no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. 14. In the instant case, the victim is the sufferer who should not be forgotten by merely maintaining the sentence of imprisonment on the accused. Considering the nature of the crime, the fact that the accused and the victims belonged to same village, the fact that the accused are admittedly in a position to pay, it is a fit case to invoke section 357(1) Cr.P.C. and it would be appropriate to impose fine to the tune of Rs.7,000/- on Tota Ram and Rs.6,000/- on other accused persons each under Section 324 read with Section 34 IPC which shall be paid as compensation to victim. It would be appropriate in the interest of justice that the sentence of imprisonment for the offence under Section 324 read with Section 34 IPC be reduced to the period already undergone. 15. Having an over all consideration of the fact situation and also the time lag in between, I am of the view that the sentence of imprisonment of appellants for the offence under Section 324 read with Section 34 IPC is reduced to the period already undergone to meet the ends of justice. In addition, Tota Ram will pay fine of Rs.7,000/- and other appellants each will pay fine of Rs.6,000/- as fine under Section 324 IPC read with Section 34 IPC which shall be paid to the victim as compensation. 16. Tota Ram is directed to deposit a sum of Rs.7,000/- (Rupees Seven Thousand Only)and other appellants each to pay Rs.6,000/- (Rupees Six Thousand Only) in the Court of 5th Additional Sessions Judge, Lakhimpur Kheri within 30 days from today. On receipt of the deposit the 5th Additional Sessions Judge, Lakhimpur Kheri shall release Rs.25,000/- (Rupees Twenty Five Thousand Only) to the victim. In case of non deposit by the appellants convict, they shall be required to undergo 6 months imprisonment. 17. Above being the position, the impugned judgment is modified to that extent. The appeal is disposed of accordingly. 18. In case of non deposit by the appellants convict, they shall be required to undergo 6 months imprisonment. 17. Above being the position, the impugned judgment is modified to that extent. The appeal is disposed of accordingly. 18. Registrar is directed to communicate this order to the 5th Additional Sessions Judge, Lakhimpur Kheri for compliance.