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2018 DIGILAW 2168 (ALL)

Yogesh v. State of U. P.

2018-10-09

SIDDHARTH

body2018
ORDER : Siddharth, J. 1. Heard Sri Satya Prakash Chaturvedi, learned counsel for the revisionist and learned A.G.A. for the State. 2. No one is present on behalf of the opposite party No. 2 despite service of notice on her as per the office report dated 14.03.2018. 3. This criminal revision has been preferred against the order of conviction and sentence dated 19.07.2011 passed by Additional Sessions Judge, Aligarh in Criminal Appeal No. 6 of 2011, under Sections 498-A I.P.C. as well as against the judgment and order dated 18.12.2010 passed by Judicial Magistrate, Iglas, Aligarh in Criminal Case No. 51 of 2007 (Pushpa vs. Yogesh), under Sections 489-A, 504 and 506 I.P.C., P.S.- Gonda, District-Aligarh, Revisionist has been convicted under Section 498-A I.P.C. for three years rigorous imprisonment and a fine of Rs. 10,000/-. 4. The prosecution case is that the prosecutrix, Smt. Pushpa, was married to the revisionist about the year 2002 and sufficient amount of dowry and household goods and jewelry were given by her parents. The family members and her husband started harassing her to bring Rs. 20,000/- and one buffalo. She was physically and mentally tortured and therefore turned out of her matrimonial home. She therefore filed a complaint and after examination of the complainant and her witness is under Section 200 and 202 Cr.P.C. the accused were summoned. The prosecution witnesses were examined and the statement of the accused under Section 313 Cr.P.C. were also recorded. The trial court came into conclusion that the offence under Section 498-A Cr.P.C. is only proved against the revisionist and he was directed to undergo three years rigorous imprisonment and a fine of Rs. 10,000/-. 5. The appellate court confirmed the order of conviction and sentence and hence this revision has been preferred. 6. Learned counsel for the revisionist has submitted that remaining sentence of the appellant may be reduced to the sentence already undergone and fine may be imposed upon the revisionist. In the interest of justice, since a very long time lapsed from the date of occurrence, it would not be justified to send revisionist to jail again. 7. A perusal of the record shows that the incident took place in the year 2001, the trial court passed the order on 18.12.2010 and the Appellate Court has rejected the appeal on 19.07.2011. 7. A perusal of the record shows that the incident took place in the year 2001, the trial court passed the order on 18.12.2010 and the Appellate Court has rejected the appeal on 19.07.2011. The revisionist has been in jail during the pendency of this appeal for a period of 15 months and 20 days after dismissal of this appeal on 05.09.2016, as per the statement of the counsel for the revisionist and he has also been in jail for a period of 18 days earlier. About 17 years have passed and despite the fact that crime is affront to the human dignity, the argument of the counsel for the revisionist merits consideration. 8. 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. 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. 9. 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. 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. 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 compensation that it may in its wisdom decide to award to the victim or his/her family. 10. 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. 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. 11. Having an overall consideration of the fact situation and also time lag in between, the court is of the view that sentence of conviction of revisionist for offence under section 498-A is confirmed but sentence is reduced to the period already undergone to meet the ends of justice. The fine of Rs. 30,000/- is directed to be paid to the victim as compensation. The revisionist, Yogesh, is directed to deposit Rs. 30,000/- (Rs. thirty thousand) before the trial court within three months and on receipt of the amount same shall be released in favour of the victim. In case of failure of deposit of the amount by the revisionist within the time provided he shall be required to serve out the remaining sentence. 12. This revision is partly allowed.