Jhandu And (2) Ors. vs State Of U.P.
2012 Latest Caselaw 2076 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

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AFR 
 
Court No. - 8
 

 
Case :- CRIMINAL APPEAL No. - 1141 of 2002
 

 
Petitioner :- Jhandu And (2) Ors.
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Kuldeep Saxena,Mohd.Abid Ali
 
Respondent Counsel :- Govt.Advocate
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

1.Accused appellants Jhandu, Zakir and Tazir have preferred this appeal against the judgment and order dated 24.08.2002 by which they have been sentenced to undergo rigorous imprisonment for two years after convicting them for the offence punishable under Section 308/34 IPC.

2.Brief facts of the case are that, one Shakir Ali lodged an FIR on 16.07.1995 to the effect that at about 8.00AM the accused appellants started raising a wall by forcefully closing the open toilet (sandas) of the complainant. When the complainant's brother Idris objected to it, the accused appellants started beating to him with lathi, danda and bricks. In result, Idris fell unconscious and the accused fled away after hurling abuse and extending threat to kill. After hearing hue and cry Ansar Hussain, Mohd. Umar and other co-villagers reached at the scene. Injured was immediately admitted in Suratganj Hospital,  He was referred to the District Hospital, Barabanki. Hence, FIR was lodged in Police Station Mohammadpur Khala, District Barabanki.

3.The injured was medically examined/treated. The case was registered under Crime No.85 of 1995. After conclusion of investigation, charge sheet dated 12.09.1995 was submitted. The learned Magistrate took cognizance and committed the accused for trial to the Court of Sessions which was registered as Sessions Trial No.366 of 1997.

4.The learned Trial Court framed charges against the accused appellants on 5.1.1999 for the offence punishable under Section 308/34 IPC, to which they denied and claimed trial.

5.The prosecution examined Shakir Ali as PW1, Ansar Hussain as PW2, Idris as PW3, Dr. S.K. Tandon as PW4, HC Dashrath Maurya as PW5, Dr. C.C. Dubey as PW6, Dr. M.K. Kanchan as PW7 and Dr. Pramod Nautial as PW8. There is documentary evidence as well. The defence did not lead any evidence but filed documents (sale deed and compromise deed).

6.After conclusion of trial, learned Trial Court examined accused under Section 313 Cr.P.C. and reached to the conclusion that the prosecution has got success in proving guilt of the accused appellant and after convicting the accused appellant, sentenced each of them to undergo rigorous imprisonment for two years. Hence, this appeal has been preferred.

7.I have heard learned counsel for appellants, learned counsel for complainant as well as learned A.G.A. and have gone through the records.

8.During the course of trial it was found that the injured Idris received one contusion, one lacerated wound and one abrasion on left face, right eye brow and right wrist respectively. The injured was in semi-conscious state. The medical experts have found that the injuries were simple in nature and X-Ray was advised. The X-Ray found fracture on left jaw. Doctor has further deposed that though, there was a lacerated wound on left side of eye brow, but there was no injury in the skull.

9.Learned Additional Sessions Judge has exhaustively dealt with ocular as well as medical evidence and has not committed any error on the point of fact or on the point of law, in holding the guilt of the accused appellants. 

10.During the course of hearing, learned counsel for the appellants conceded that the learned Additional Sessions Judge has correctly convicted the accused appellants, but submitted that the punishment of imprisonment may be reduced to the period already undergone by the accused appellants and, in lieu of it, the appellants may be awarded enhanced punishment of fine.

11.I have considered the arguments placed by the learned counsel for accused appellants in the light of the nature of offence, the nature and seat of injuries and the fact that the complainant is contesting by engaging private counsel in this court as well. Both the learned counsels and learned A.G.A. agree to the fact that the learned Additional Sessiond Judge has rightly awarded the sentence of imprisonment  but has not imposed any amount of fine, nor has awarded any amount of compensation to the injured. Learned Additional Sessions Judge has not committed any error on the point of law. He has awarded the punishment of imprisonment in a traditional manner. The general estimation, reputation, opinion and impression about the criminal courts in the estimation of public at large is that they are convicting, acquitting, granting bail or refusing bail, issuing warrants etc. This is a traditional British mode of administration of criminal justice, though the expectation of the society and the demand of public mood is that the criminal courts should deliver justice and do not pass orders in mechanical manner. Learned Additional Sessions Judge should have exhibited himself to be an activist Judge who should take care of all the persons involved in a litigation and pass orders in such a fashion and in such a way that justice should appear to have been done between the parties. The rights of the victims should not be ignored.

12.Learned Additional Sessions Judge has correctly awarded the punishment of imprisonment. However, learned Additional Sessions Judge has overlooked the law laid down by the Hon'ble Apex Court in the case of Bhaskaran v. Sankaran Vaidhyan Balan, reported in AIR 1999 SC 3762, in which it was held that while fixing the quantum of compensation, the Magistrate should consider what would be the reasonable amount of compensation payable to the complainant. In Hari Krishnan and the State of Haryana v. Sukbir Singh and others reported in AIR 1988 SC 2127, the Hon'ble Supreme Court has held that power of imposing fine 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 as reconciling the victim with the offender. It is to some extent a constructive approach to crime and a step forward in a criminal justice system. It is because of this that it was recommended that all criminal courts should exercise this power liberally so as to meet the ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable. While holding this the Hon'ble Supreme Court has referred its earlier decision in Sarup Singh v. State of Haryana, reported in AIR 1995 SC 2452. The Court further emphasized that the amount of compensation was enhanced taking into consideration the gravity of the injury, the strata to which the accused belongs, the milieu in which the crime has taken place and further keeping in view the cry of the society for the victims at large.

13.People, by and large, are rapidly loosing confidence in the criminal judicial system; victims feel ignored and are crying for attention for justice and; there is a demand that the system must focus on justice to victims, as well. A traditional judicial system must take note of the pulse of the society at large. Courts are parts of the society and cannot overlook the will of the people; underneath there is a feeling which advocates replacement of the vertical criminal judicial system by a "horizontal line of justice" where the punishment system is sought to be substituted by a system which gives a central role for the victims.

14.A practical aspect of the matter is that though maintenance of law and order is a State subject, yet the victim is a complainant who activates the machinery of the Criminal justice system by bringing evidence and information about illegal acts to the attention of the authorities. If the police activates in actual operation, as required by law of the land, the victim then plays an additional role as a witness for the prosecution and helping the State to secure a conviction.

15.Since crime is conceptuated as an event that threatened and offended the entire community, and was prosecuted by the State on behalf of the people, the actual victim is treated like just another piece of evidence, a mere exhibit to be discarded after the trial. The time is over-ripe to redress, restore & readjust the injustice and imbalance to the crime victims by the Judges, the prosecutors and probation officers etc. Every instrument of State machinery, in general and Judges in particular, should ensure explicit standards of fair treatment to protect the interests of victims and witnesses. The victims ought to receive reimbursement from one source or the other.

16.The penal philosophy in India is derived from the British model which is based upon concepts of prevention of crime and treatment and rehabilitation of criminals. Victims who suffer injustice silently, have no rights, and, in extreme cases, depend upon the mercy of police officers.

17.The courts have to draw a silver lining between offenders and offended (victims) through affirmative action; and take a lead to compensate and reimburse the victims under the existing provisions of the Penal Code contained in Chapter-III, Section- 357 of the Code of Criminal Procedure, 1973 & other Special Statutes where provision of imposition of fine is prescribed pending draft of 'Victims Assistance Bill' to become statute prepared by Justice V.R. Krishna Iyer under National Human Rights Commission, with a view that no citizen should feel ignored by applying psycho-social coping model', the dynamic component of which should be (I) prevention (ii)action and (iii) Reappraisal with a will to eliminate and reduce stress in the society, at large.

18.The Courts should take note of the fact that the Parliament has amended section 372 of the Code of Criminal Procedure so as to entitle a complainant in a criminal case to file appeal in case the accused gets acquittal or gets lesser punishment or impose inadequate compensation, so as to indulge the victim in the process of justice.

19.Victims have a valid interest in prosecution of the case and should be involved at all stages of the proceedings. Talking, day in and day out, about interest of the accused, and neglecting the victims, is resulting in hostility of victims and ultimately acquittal, which is eroding the majesty of law and justice.

20.Current situation of criminal justice deserve to cope with international standards so as to cement the fact that Judges, by and large, are sympathetic and not alien to victims. It will reflect transparency and honesty in the corridors of Justice. As early as in 1983, the Apex Court has recognised the need of State compensation in cases of abuse of power by State machinery, in Rudul Sah vs. State of Bihar AIR 1983 SC 1086, Similarly, in Saheli, a women's Resources Centre through Mrs. Nalini Bhanot vs. Commissioner of Police (AIR 1990 SC 513) compensation was granted to victim's mother.

21. In D.K. Basu vs. State of West Bengal (AIR 1997 SC 610), it was held, " To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience."

22.In Ram Chandra Rao v. State of Karnataka (2002) 4 SCC 578 the Hon'ble Supreme Court reverted its earlier orders in Common Cause v. Union of India (1996) 4 SCC 33 permitting closure of petty criminal cases the trial in which had not commenced even after the lapse of two to three years after institution. The court noted a remedy might "resort to taking revenge by unlawful means resulting in further increase in the crimes and criminals.

23. Under Clause- 12 of the U.N. Declaration, the onus is on the state to "endevour to provide financial compensation to both the victims who have suffered bodily injury or impairment of physical or mental health as a result of serious crimes as well as the family of those who have died as a result of victimization."

24.Judicial and administrative mechanisms should be established and strengthened, where necessary, to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

25.Victims deserve to be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, for the harm that they have suffered.

26.It is a weakness of our jurisprudence that victims of crime and the dependents of the victims do not attract the attention of law, the victims reparation is still the vanishing point of our law. However, the concept of "awarding compensation" has been reiterated by Hon'ble Apex Court in the cases mentioned above. In the case of Sarwan Singh v. State of Punjab reported in AIR 1978 SC 1525, it was held that while awarding compensation, it is necessary for the court to decide whether the case is fit enough to award compensation. It the case is found fit for compensation, then the capacity of the accused to pay the fixed amount has to be determined. 

27.In view of the law as discussed above, and in view of the facts and circumstances of the case, I find that each of the accused appellants are awarded punishment for imprisonment already undergone by them and each of the accused shall have to deposit Rs.10,000/- as fine within 30 days from the receipt of record before the learned Trial Court, which shall be paid as compensation to the injured Idris (and in case of his death to his legal representatives). In default of payment of fine, each of the accused shall have to undergo imprisonment for 6 months.

28.The office is directed to send the lower court's record along with copy of the judgment to the learned Trial Court, without delay, so as to ensure that it reaches the learned Trial Court within June, 2012.

29.With these observations, the appeal is disposed of, in such a fashion that it is partly allowed. The conviction is confirmed but the sentence is modified as stated above.

Order Date :- 23.5.2012

Ram.