Kamla Prasad @ Raj Kumar vs State Of U.P.
2012 Latest Caselaw 2265 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- CRIMINAL APPEAL No. - 233 of 2001
 

 
Petitioner :- Kamla Prasad @ Raj Kumar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- R.P.Mishra
 
Respondent Counsel :- Govt.Advocate
 

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

This appeal has arisen out of the judgment and order dated 20.03.2001 passed by Second Additional Sessions Judge, Gonda in ST No. 205/93 by which the appellant has been convicted for the offence punishable under section 323 IPC, sentencing him to undergo rigorous imprisonment of six months and offence punishable under section 324 IPC sentencing for one year rigorous imprisonment.

Briefly stated, the prosecution case is that the FIR was lodged by the complainant against his two real brothers Kamla Prasad (Appellant) alias Raj Kumar and Raj Dutt, to the effect that on 10.06.1989 at about 11.00 am, the complainant was carrying wood on his tractor/trolley.  Both the accused were hidden near village- Birwa ki Phulwari within P.S.- Kodia, District- Gonda,  attacked with the help of Kudal with an intent to kill.  In result, the complainant received head injury.  On the alarm raised by the complainant, a number of villagers reached at the spot.  The FIR was lodged, injuries on the body of the complainant Ram Kumar Pandey were examined medically.  After conclusion of investigation, charge-sheet was submitted.

After committal of the case, learned Sessions Judge framed charges against the accused appellant Kamal Prasad alias Raj Kumar punishable under section 307 IPC against the accused Raj Dutt to which they denied and claimed trial.  After conclusion of the evidence, the learned Trial Court examined the accused under Section 313 Cr.P.C.  After hearing the learned Sessions Judge acquitted accused Raj Dutt and convicted the accused appellant for the offences punishable under section 323/324 IPC and sentenced him to undergo rigorous imprisonment of six months for the offence punishable under section 323 IPC and rigorous imprisonment for 18 months for the offence punishable under Section 324 IPC.   Hence, appeal has been preferred.

Heard learned counsel for the accused appellant as well as the learned AGA on behalf of the State and have gone through the records.

During the course of arguments, learned counsel for the accused appellant conceded that there is no infirmity in the order in recording conviction and submitted that the matter is very old, and rigorous imprisonment may be commuted to the period already undergone by the accused appellant, and the accused may be sentenced to pay fine.

I have considered the evidence on records on the point. Conclusively, I find that the learned Session Judge has correctly reached to hold the guilt, but has simply awarded sentence for imprisonment and; has not imposed any amount as fine, by which the complainant/injured could have been compensated.

The learned Session Judge has not committed any error in doing so because there was no mandate of law to have necessarily awarded fine, in addition to the punishment of imprisonment.

But the trend of the society has taken a vertical change. 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.

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.

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 being guardian of guardians, in particular, to 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.

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 have no rights, who suffer injustice silently and, in extreme cases, depend upon the mercy of police officers.

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 Assitance 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.

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.

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.

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.

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.?

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.

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.?

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.

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.

In view of the abovementioned aspects, I confirm the conviction awarded by the learned Session Judge to the accused appellant but convert the sentence of imprisonment to the period already undergone by him; Subject to condition that the accused applicant pay a fine of Rs 10,000/- before the learned Trial Court within thirty (30) days from today which shall, in turn, be paid to the injured/ victim without delay by the learned Trial Court. In  case of default, the accused, appellant has to undergo six months imprisonment, which shall be terminated earlier, as soon as the fine is deposited.  This sentence is being awarded for the offence punishable under section 324 IPC.  There is no need to pass separate order for the offence punishable under section 323 IPC.  The amount of fine in the form of compensation shall be paid to the victim which is none else but real brother of the accused appellant.  While doing so, I justify my judicial conscience that the payment of compensation shall transmit a message to the family that substantial justice has been made with the family in this case.

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.

The Registry is required to circulate the copy of this judgment to all the Session Judges/ CJMs, who, in turn, be directed to dispense with justice in accordance with law, Keeping in view of the directions contained as above, in such a fashion, that a message may be transmitted to the society, at large, that Courts are not meant to award punishment alone, each and every citizen may feel involved in dispensation of justice, without a feeling of being ignored at any stage, of the criminal justice system, which are conscious enough to stand boldly to the aspirations of the society; with the object to refurbish the existing image.

Order Date :- 29.5.2012

Nitesh