HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 53 Case :- CRIMINAL REVISION No. - 2540 of 2011 Petitioner :- Devendra Respondent :- State Of U.P. Petitioner Counsel :- Punit Srivastava,Ramanuj Tripathi Respondent Counsel :- Govt. Advocate Hon'ble Vinod Prasad,J.
Revisionist Devendra has challenged his conviction u/s 354/324 IPC and imposed sentences of one year R.I. with Rs. 5000/- fine for each of the offences recorded by Additional Sessions Judge, Court No. 14 Aligarh, vide impugned judgement and order dated 10.6.2011, passed in Criminal Appeal No. 107 of 09, Devendra Vs. State of U.P. in the instant revision. Lower Appellate Court had also ordered that both the sentences shall run concurrently and period of incarceration under gone by the appellant shall be counted while calculating entire period of imprisonment under gone by the revisionist.
Unfolded prosecution allegations as was levelled in the written report Ex. Ka 1, coupled with chick FIR Ex. Ka 5 by the informant P.W. 1 Smt. Maya Devi w/o Sheo Kumar Kori, were that on 26.4.2000, at 5 a.m., when she(informant P.W.1) was going to attend nature's call, revisionist molested her by cuddling her from behind and then gave a teeth bite on her left cheek. Raised alarm by the informant victim attracted Ram Kali w/o Ant Ram and Maha Devi w/o Manak Chandra at the spot and the three ladies chivalrously apprehended revisionist at the spot and brought him to informant's house, where victim informant narrated entire episode to her husband Sheo Kumar, who then scribed informant's FIR, Ex. Ka-1, at her dictation and then the spouses with the help of Irshad brought the revisionist to police station Turkman Gate, district Aligarh, covering the distance of 2 ½ kms, where informant lodged her FIR the same day at 7.30 a.m. P.W. 5 Constable Banwari Lal registered, Ex. Ka-1, by preparing Chick FIR Ex. Ka- 5 and G.D. entry Ex. Ka- 6. Crime was investigated by Sub Inspector Umed Ali, P.W. 3, who concluding it charge sheeted the appellant vide Ex. Ka-3, on 30.4.2000, only for offences u/s 354/324 IPC.
Medical examination of the victim informant was conducted by Dr. Y. Bhardwaj, P.W.4, on the same day at 12.25 p.m. and had prepared her medical examination report. Doctor had noted a single injury on the body of the victim, which was as follows:-
" Teeth mark in the form of abrasion in left cheek 3 cm. x 2 cm. with red colour."
Injury was simple in nature and in doctor 's estimation it was result of tooth bite and was fresh in duration.
Charge sheet of the accused resulted in registration of criminal case No. 909/2000, State versus Devendra before ACJM Aligarh on 26.8.2000, against the revisionist in which case, he was summoned.
Revisionist was charged with both the offence on 7.1.2002 by ACJM, which charges were denied by him and he claimed to be tried. At this juncture it is relevant to point out that learned ACJM had not framed the second charge u/s 324 IPC by mentioning correct facts, which was not in consonance with prosecution allegations. In the said charge it is mentioned that revisionist had assaulted victim Maya Devi by sharp edged weapon and caused her injury, which was never prosecution allegation. Charge has to be specific and clear and has to be in consonance with material contained in the case diary.
In it's attempt to bring home revisionist guilt, prosecution examined in all five witnesses, out of whom, victim informant Maya Devi P.W.1and eye witness Maha Devi, P.W.2 were fact witnesses. Formal witnesses included Investigating Officer S.I. Umed Ali P.W. 3, Dr. Y. Bhardwaj P.W.4 and constable Banwari Lal P.W.5. Besides oral evidences of aforesaid witnesses, prosecution relied upon documentary evidences of written report Ex. Ka-1, Site Plan Ex. Ka-2, Charge Sheet Ex.Ka-3,medical examination report of the victim Ex. Ka- 4, chick FIR Ex. Ka-5, GD entry Ex. Ka-6 and office note Ex. Ka-7.
In his statement u/s 313 Cr. P.C., accused revisionist refuted prosecution evidences and his defence plea was that of his false implication.
Judicial Magistrate, Aligarh after marshalling of prosecution evidences and looking to the facts and circumstances of the case and evidences tendered by the prosecution, came to the conclusion that guilt of the revisionist has been established by the prosecution beyond any shadow of doubt and therefore convicted the revisionist for both the charges and imposed sentence of one year R.I. with Rs. 5000/= fine for the charge of molestation, u/s 354 IPC, and two years R.I. with a fine of Rs.5000/= for the charge u/s 324 IPC and further ordered that in default of payment of fine, revisionist shall undergo three months further R.I., and that both of his sentences shall run concurrently, vide it's impugned judgement and order dated 8.10.2009.
Aggrieved by aforesaid conviction and sentence, revisionist preferred Criminal Appeal No. 107 of 2009 Devendra versus State before Sessions Judge, Aligarh, which appeal was partly allowed by Additional Sessions Judge, Court No. 14, Aligarh, who vide its impugned judgement and order dated 10.6.2011,upheld appellant/ revisionist conviction for both the offences but diluted and altered his sentences on both the counts by ordering that for the first charge u/s 354 IPC, appellant/ revisionist shall pay only Rs.2500/= as fine besides imprisonment of one year RI, and for the second offence u/s 324 IPC he shall serve only one year RI instead of two years RI and shall pay Rs.2500/= as fine instead of Rs. 5000/=. Lower appellate court further reduced default sentences to one month RI for both the offences. In this revision challenge is to the aforesaid conviction and sentence recorded by the courts below.
This revision was admitted only on the question of sentence and hence revisionist counsel was heard on that aspect with learned AGA against it.
It is submitted by the learned counsel for the revisionist that revisionist had no criminal history or background and it was his first crime. Revisionist was only 32 years of age at the relevant time and crime was committed because of infatuation and voluptuousness without any criminal proclivity. Learned counsel pointed out that charge framed against the revisionist as well as question put to him under 313 Cr.P.C. were defective and misled him and in fact he was not questioned at all regarding any incriminating circumstances appearing against him in prosecution evidence. It was further submitted that medical report Ex. Ka-4 does not indicate any grievous injury except teeth bite marks. In such a view learned counsel submitted that lower appellate court as well learned Magistrate should have given benefit of Probation of First Offender's Act to the revisionist, which they had not done without sufficient reasons. Learned counsel further submitted that the incident occurred at the spur of the moment without any pre-plan and not for any ulterior motive. It was further argued that offence was committed ten years ago and revisionist had already under gone the ordeal for such long period, during course of which, there is no report of his further involvement in any other crime. It is recapitulated that incident happened when revisionist was a young boy of 20/21 years of age and he has suffered a lot for his youthful mistake. It is further submitted that after dismissal of his appeal on 10.6.2011 revisionist had already under gone more than four months of imprisonment. In such a view, it was submitted that sentence of the revisionist be reduced. In support of his submissions revisionist counsel relied upon trial court's observations that the revisionist was the sole bread earner of his family and was not a previous convict.
Learned AGA however submitted that lower appellate court itself had reduced the sentence and hence there is no scope for it's further reduction.
I have given my anxious consideration on the said aspect of the matter. It is an incident which occurred all of sudden without any motive or premeditation. Revisionist was aged about twenty/twenty one years at the time of the incident, which occurred a decade ago. There is no record of any other criminal involvement of the revisionist. Prosecution has also not brought on the record any criminal proclivity harbingered by the revisionist. No doubt he had given a teeth bite on the left cheek of the victim informant but that was also not with any criminal intent. It had left only teeth bite mark and no other cut injury. He is the sole earner of bread of his family and there is no body to look after them. This aspect was accepted by the trial Magistrate as well. In such a view, in my humble opinion, looking to the age and period already under gone between crime and present date, the period of imprisonment already under gone by the revisionist as substantive sentence and the condition of his family, the ends of justice will be served if the revisionist is sentenced to the period of imprisonment already undergone by him with some compensation to the victim.
In such a view, this revision is allowed in part. Conviction of the revisionist for both the charges u/s 354 and 324 IPC are hereby maintained but sentence on both the counts is reduced to the period of substantive imprisonment already under gone by him. Fine as was awarded by the lower appellate court on both the counts are hereby maintained but out of that Rs. 2500/- is awarded as compensation to the victim, which shall be handed over to her within one month of realisation of fine from the appellant. Revisionist is permitted to deposit the fine on both the count within two weeks from the date of his release, failing which it shall be realised from him as arrears of land revenue and compensation as awarded to the victim shall be paid to her by the trial Magistrate after noticing her, with two weeks after the same is deposited or realised. Revisionist is in jail, he shall be set at liberty forthwith unless he is wanted in any other case.
This revision is partly allowed as above.
Let a copy of this judgement be certified to the trial Magistrate.
Order Date :- 31.10.2011 SKS