Research › Search › Judgment

Uttarakhand High Court · body

2019 DIGILAW 207 (UTT)

Salekh Chand v. State of Uttarakhand

2019-03-15

SHARAD KUMAR SHARMA

body2019
JUDGMENT : 1. The present Criminal Revision arises out of judgments of conviction, whereby, the present revisionists have been convicted for commission of the offences under Section 323 and 427 of IPC. By virtue of the judgment of conviction dated 13.08.2008, impugned in the Revision, each convict has been sentenced to undergo six months simple imprisonment each and a fine of Rs.200/- each has been imposed for the offences under Sections 323 and for 427 of IPC by the Judicial Magistrate, Laksar, District Haridwar. Both the sentences were to run concurrently. It was further directed that in an event if the accused revisionists fail to deposit the fine thus imposed by the conviction order, they will have to undergo, a further sentence of simple imprisonment for a period of one month each. This judgment of conviction of Trial Court dated 13.08.2008 was challenged in Criminal Appeal No. 49 of 2008, Salekh Chand and others Vs. State and others. The Appellate Court vide its impugned judgment dated 18.12.2010, had dismissed the Criminal Appeal and confirmed the sentence as imposed by the Trial Court. 2. Before coming to any logical conclusion, it becomes necessary for this Court to deal with the brief set of allegations, which was initially levelled by the complainant as against the present revisionists, which was initiated by virtue of lodging of an F.I.R., which was registered as Case Crime No. 236/03, under Sections 452, 323, 504, 506 and 427 IPC. After, the commission of the offences on 07.10.2003, it was the case of the complainant that he attempted to lodge an F.I.R. against the present revisionists, but, since there was denial to register the same by the Police, he has filed an application under Section 156 (3) of the Cr.P.C. on 10.10.2003 (Ex. Ka-1), on which, an order was passed by the Magistrate on 17th October, 2003, directing the SHO to register the F.I.R. and, consequently, the F.I.R. was lodged against the present revisionist on 25th October, 2003, as Case Crime No. 236 of 2003 at Police Station Laksar, District Haridwar (Ex.Ka-5). 3. Ka-1), on which, an order was passed by the Magistrate on 17th October, 2003, directing the SHO to register the F.I.R. and, consequently, the F.I.R. was lodged against the present revisionist on 25th October, 2003, as Case Crime No. 236 of 2003 at Police Station Laksar, District Haridwar (Ex.Ka-5). 3. As per the allegation levelled against the present revisionists, they were charged of their alleged involvement in the commission of offences under Sections 323, 504, 506 and 427 I.P.C. and as per the allegations, the incident is said to have been occurred on 7th October, 2003, at 7:00 p.m., whereby, the revisionist No.1, being equipped with lathi; the revisionist No. 2, being equipped with danda and revisionist No. 3, being equipped with sariya (iron rod), are said to have assaulted the victim and Nathia, who was the fourth convict, joined the three accused persons and had inflicted the injuries by beating the victim by slapping and boxing him with the blows of fists. 4. The Medical examination was conducted by PW4 Dr. Braham Singh on 8th October, 2003 and as per his medical report, he has opined that the nature of the injuries, which have been suffered by the victim Rati Ram, who was shown to be of 60 years of age, had suffered from the injuries, which were of the following nature : 1. He has complained about the pain on the right side of his chest. 2. He has complained about the pain in his testes. 3. In the report, it was found that there were two scratches, on the person of victim which were 6 cm. and 4 cm. in size. Besides this, there was contusion on the right hip of the victim. It was opined by the Doctor that all the injuries were caused by hard and blunt object and it was further opined that the injuries were ½ days old. 5. However, in accordance with the opinion expressed by the PW4, Dr. Brahma Singh, all the injuries were shown to be of simple in nature. According to the case of the revisionists, there had been series of some civil litigation between them and the complainant’s family; there was an enmity amongst themselves due to which the incident dated 7th October, 2003 is said to have chanced. Brahma Singh, all the injuries were shown to be of simple in nature. According to the case of the revisionists, there had been series of some civil litigation between them and the complainant’s family; there was an enmity amongst themselves due to which the incident dated 7th October, 2003 is said to have chanced. However, there is no detail of litigations, which was produced by the revisionists before Courts below to substantiate his case which were pending against them. 6. The learned Trial Court, after considering the evidence adduced by the parties, had passed the impugned judgment dated 13th October, 2008 of conviction for the offences under Sections 323 and 427 I.P.C., however, the revisionists were acquitted for the offences under Sections 504 and 506 I.P.C. The judgment dated 13October, 2008 was put to challenge in an appeal before the Additional Sessions Judge/2F.T.C., Haridwar by way of Criminal Appeal No. 49 of 2008 and the Appellate Court, too, vide its judgment dated 18th December, 2010, had affirmed the order of conviction, consequently, the present revision challenging the two impugned judgments dated 13.10.2008, passed by the Trial Court and judgment dated 18.12.2010, rendered by Appellate Court. 7. Heard Mr. Sanjay Kumar, Advocate on behalf of Mr. Tapan Singh, Advocate for the revisionists and Mr. Pratiroop Pandey, learned A.G.A. for the State. 8. The argument of learned counsel for the revisionists is that looking to the nature of the injuries and the statement of PW4 Dr. Brahma Singh, it would not tantamount to that the injuries suffered were satisfying the conditions for convicting of the revisionists under Section 323 IPC, as all the injuries suffered by the Rati Ram have been opined to be of simple in nature and they would not be fatal enough to attract Section 323 I.P.C. He further submitted that if the set of allegation, if it is scrutinized, pertaining to the offence under Section 427 IPC, it is absolutely an improbable story which has been built up by the complainant that the loss was caused to the balcony by the accused persons which according to him is not practically possible until and unless, he is equipped with implements and tools, suitable enough to cause such damage to the property. 9. 9. In the statement recorded under Section 313 Cr.P.C., the revisionists have submitted that the inception of the criminal proceedings was nothing but as a consequence of vengeance for the civil litigation, pertaining to a path which was pending consideration, however, there happens to be no proof to the said effect about the nature of civil proceedings and the Court before which it was pending and the allegations levelled against the revisionists are absolutely false and concocted. 10. Lastly, it has been argued by the learned counsel for the revisionists that the revisionists are simple villagers and they do not have any criminal antecedents, as such, they would be entitled for the protection under Section 4 of the First Offenders’ Probation Act, 1938, which according to the revisionist was argued before the Trial Court but no findings and its effect was considered by both the Courts below. 11. Considering the statements recoded of PW1 Tilak Ram and PW-2 Rati Ram and if the two statements are read in harmony with the statements of PW4, the nature of injuries was not serious enough to entail the provisions as contained under Section 323 I.P.C. for convicting the revisionists for an imprisonment of six months each. The same could be converted into imposition of an adequate fine on the revisionists. 12. This Court is of the view that considering the impact of the provision contained under Section 323 of IPC, in the given set of circumstances of the instant case, the two elements which are necessary for conviction under the aforesaid section are that there has to be an element of deliberate act and the hurt referred therein would mean the grievous hurt as provided under Section 320 of IPC. Hence, looking to the doctor’s report and considering statement of PW4, the injuries would not fall to be hurt falling under the provision of Section 320 IPC, besides this, the incident as narrated in the 156 (3) application and in the F.I.R., it could be said that it was at a rage of turmoil, the incident occurred at spur of the moment, hence, it lacked the deliberate and voluntary intention to cause injury. 13. 13. Even if, the judgment is scrutinized in its totality, besides there have been allegations that the damages was caused to the property, but, both the Courts below have not considered the magnitude of the damages and loss suffered by the property of the victim and also no logic has been applied whether there was possibility of such damage to the property to attract Section 427 IPC or whether there was any possibility to cause damage by hand to the balcony as alleged. Apart from that, there is no reasoning assigned with regard to the commission of the offence under Section 427 I.P.C. 14. In view of the above and after considering the LCR, which has been produced before this Court, this Court is of the view that the revisionists would be entitled for the protection under Section 4 of the First Offenders’ Probation Act, 1938, as there is nothing on record to show that the revisionists are habitual criminals. Section 4 of the First Offenders’ Probation Act, 1938 reads as under:- “4. Power of Court to release certain offenders on probation of good conduct. Section 4 of the First Offenders’ Probation Act, 1938 reads as under:- “4. Power of Court to release certain offenders on probation of good conduct. (1) When any person is convicted of an offence not punishable with death or transportation for life, and no previsions conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that is expedient that the offender should be released on probation of good conduct the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behaviour; Provided that the court shall not direct the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode or regular occupation in the place for which the Court acts or in which in which the offender is likely to live during the period named for the observance of the conditions: Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the [State Government], which is punishable with imprisonment not exceeding six months, the Court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so. (2) Where the offender ordered to be released under subsection (1) is under twenty-four years of age, the Court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order: Provided that the period so specified shall not extend beyond the date on which, in the opinion of the Court, the offender will attain the age of twenty-five years. 3. 3. A court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the conditions with respect to residence, abstention from intoxicants and any other matter as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. 5. A court making an order under Sub-section (3) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.” 15. The Act embodies in itself a reformative object; but to be exercised after considering the set of allegations, evidence and the intricacies of the offence alleged. It has a reformative object but with a humanitarian approach; but the discretion given to the Courts under the Act has to exercised with extreme caution; and with an object not to be exercised for releasing in these offences which have a nature of public offence. The purpose of the Act, it aims to shield the youth from being converted into a obdurate criminals as a result of their association with the hardened criminals, that in which the provisions contained itself carves out the exceptions, where the Courts can exercise the power under the Act will have to judge : (a) Circumstances of the case. (b) Nature of offence. (c) The criminal antecedent of offender. (d) Not to exercise where it happen to be in relations to the public offences. (e) Apart from all other exceptions provided under the provisions of Section 4 itself of the Act. 16. Consequently, the sentence as inflicted by the Trial Court’s judgment dated 13.08.2008 and affirmed by the Appellate Court vide its judgment 18.12.2010 is modified to the extent that the sentence of undergoing imprisonment of six months each by the revisionists would stand quashed and substituted by the imposition of penalty of Rs.2,000/- each. 16. Consequently, the sentence as inflicted by the Trial Court’s judgment dated 13.08.2008 and affirmed by the Appellate Court vide its judgment 18.12.2010 is modified to the extent that the sentence of undergoing imprisonment of six months each by the revisionists would stand quashed and substituted by the imposition of penalty of Rs.2,000/- each. If the revisionists fail to deposit the penalty as imposed by the present judgment, the Magistrate would ensure that they serve the sentence of one month and they would be taken in custody forthwith to serve the sentence, in an event of failure to deposit the fine as imposed by this judgment within two weeks from the date of production of this judgment before the Magistrate concerned. 17. Subject to the above observations, the Revision stands allowed partly.