Bhola And Another vs State Of U.P.
2012 Latest Caselaw 2268 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- CRIMINAL APPEAL No. - 471 of 2004
 

 
Petitioner :- Bhola And Another
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- M.L.Syal
 
Respondent Counsel :- Govt.Advocate
 

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

1.The accused appellants Bhola and Raghunath have preferred this appeal, against the judgment and order, dated 17.02.2004 passed by Learned Additional Sessions Judge, Fast Track Court (Court No. 1), Hardoi, in ST No. 112/99, by which the accused appellants have been convicted for the offences punishable under Sections 323/34 and 324/34 IPC and, have been sentenced to undergo rigorous imprisonment for six months and two years each respectively.  Both the accused appellants have been  acquitted for the charge framed against them for the offence punishable under Section 308/34 IPC.

2.Briefly stated, the prosecution case is that one, Radheshyam, son of Ram Lal lodged an FIR at P.S- Bilgram, District- Hardoi on 10.04.1998 to the effect that the accused appellants were carrying Ghura at 7.00 am, which was objected to by the complainant.  Both the accused became annoyed and hit the complainant with Phaoda.   He made hue and cry, upon which Chandan and Sobran reached at the place of occurrence, who saved the complainant.  The accused, then fled away, after threatening to kill.  The FIR to this occurrence was lodged at 09.30 am.  The injuries on the body of complainant Radheshyam were examined at PHC, Bilgram and, after examination of injuries, the case was converted into case for the offence punishable under Section 308 IPC.  After investigation, the charge-sheet was submitted, the learned Magistrate took cognizance and the accused were committed to the Court of Sessions for trial.

3.The Learned Trial Court framed charges against the accused appellants for the offence punishable under Section 308/34, to which they denied and claimed trial.

4.The prosecution examined Radheshyam as P.W.-1, Chandan as P.W.-2, Constable Satya Narain as P.W.-3, Dr. M.A. Siddiqi as P.W.-4 and S.I. Suresh Bahadur Singh as P.W.-5.  There is documentary evidence as well.  The defence did  not lead any evidence.

5.As per medical expert, two lacerated wounds and one abrasion was found on the body of the injured Radheshyam.  One lacerated wound was found on the right side of head and, one one the left side of shoulder.  The abrasion was found on the right side forehead, above eyebrow. The learned Trial Court has examined the injured  Radheshyam (P.W-1) and in the light of the statement of Dr. M.A. Siddiqi,  has reached to the conclusion that the prosecution has got success in proving the guilt of the accused appellant.  But the ingredients of an offence punishable under Section 308 IPC were not borne out of the evidence.  The learned Trial Court has also rightly mentioned that the accused Raghunath  had also received three abrasions and one contusion and the other accused Bhola also received two contusions and, one lacerated wound.  But the injuries on the body of both the accused as well as on the body of victim were of simple nature.

6.I have heard the learned counsel for the accused appellants as well as learned AGA and have gone through the records.

7.The learned Trial Court has discussed, in detail, the ocular evidence and have matched it with the medical evidence and has finally reached to the conclusion that the guilt of the accused appellants is proved beyond every shadow of doubt.  However, the learned Trial Court did not sentence any of the accused to pay  fine, nor has awarded any amount of compensation.  Legally, the learned Trial Court has not committed any error on point of law as there was no mandate of law that the sentence of fine should have necessarily been awarded.

8.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.

9.Learned Additional Sessions Judge has correctly awarded the punishment of imprisonment as well as punishment of fine. 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.

10.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.

11.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.

12.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.

13.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.

14.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.

15.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.

16.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.

17.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.

18.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."

19.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."

20.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.

21.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.

22.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. 

23.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. In default of payment of fine, each of the accused shall have to undergo imprisonment for 6 months.

24.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.

25.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 :- 29.5.2012

Nitesh