Fauran Singh & Others vs State Of U.P.
2017 Latest Caselaw 6431 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 11								       Reserved
 

 
Case :- CRIMINAL APPEAL No. - 40 of 1998
 

 
Appellant :- Fauran Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sushil Kumar
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Shailendra Kumar Agrawal,J.

1. This Criminal Appeal has been filed by the accused/ appellants Fauran Singh and Ruman challenging the impugned judgment and order dated 19.12.1997 passed by II Addl. Sessions Judge, Aligarh in Sessions Trial No.107 of 1993 (State of U.P. Vs. Fauran Singh and others); Crime No.81 of 1992, Police Station Iglas, District Aligarh, whereby accused/ appellants were convicted and sentenced under Section 324 IPC with three years' rigorous imprisonment.

2. Filtering out the unnecessary details, the prosecution story in brief is that on 19.03.1992 at about 5.00 p.m. complainant Prithvi Singh was smoking Hukka while sitting at the ambo (Chabutara) of his house; that after sometime one Tulli reached there and started smoking Hukka with the complainant; that subsequently co-accused Chhitu also reached there and asked the said Tulli why he is smoking hukka with complainant Prithvi Singh, on which complainant asked that it was an occasion of Holi festival and if Tulli was smoking Hukka, why he was raising objection; that in the meantime accused Fauran Singh armed with country-made pistol, accused Ruman armed with Ballam (spear) and accused Sughadi armed with Lathi reached there; that seeing them complainant began to proceed in his house and all the accused followed him and accused Fauran fired shot by his country-made pistol, but Smt. Jai Devi, wife of the complainant came between the accused and complainant, due to which Smt. Jai Devi sustained firearm injury on her occipital region; that accused Ruman struck spear blow on the person of complainant, due to which he sustained injury on front of right leg; that hearing the commotion, witnesses Talebar, Ran Singh and other reached at the spot and intervened in the matter; that thereafter accused escaped from the spot and the complainant Prithvi Singh taking his wife Smt. Jai Devi came at Police Station Iglas on the day of occurrence itself.

3. Complainant Prithvi Singh got scribed the written report Ex. Ka-1 by one Devki Singh and presented the same for registration of case, on the basis of which chik FIR Ex. Ka-7 was prepared and the entries were made in G.D. at crime no.81 of 1992 at 9.35 p.m. on 19.03.1992 at 9.35 p.m., carbon copy of the G.D. is Ex. Ka-8.

4. After registration of the case, the injured Prithvi Singh and Smt. Jai Devi were sent along with 'Chitthi Mazroobi' for medical examination at P.H.C. Iglas. Both the injured were examined by PW-2 Dr. R.K. Gupta. On 20.03.1992 at about 10 a.m. injured Smt. Jai Devi was examined and on her person single fire wound of entry on scalp mid line 28 cms above bridge of nose, margins inverted, laceration of the size 0.2cm x 0.2cm x 0.4 cm were found, but no exit wound was found. Blackening, tattooing and scorching were absent. Injury was simple and caused by fire arm. Duration of injury was about 18 hours. The patient was referred to M.S. Hospital, Aligarh for X-ray of skull for location of pellets.

5. On the person of injured Prithvi Singh, the doctor found incised wound 1.5 cm x 0.2 cm x 0.2 cm on front of right leg, 8.8 cm below the knee cap. The injury was simple in nature and caused by sharp edged weapon and was about 18 hours old. Injury report of injured Smt. Jai Devi is Ex. Ka-2 and injury report of injured Prithvi Singh is Ex. Ka-3.

6. On 21.03.1992 at M.S. District Hospital, Aligarh, Dr. A.K. Gautam, Senior Radiologist got prepared X-ray plate of injured Smt. Jai Devi, Ex. Ka-10 and submitted the X-ray report Ex. Ka-9. As per X-ray report one radio opaque rounded foreign body was found in occipital region, on the basis of which supplementary report Ex. Ka-4 was submitted.

7. After registration of the case, investigation was entrusted to PW-4 Sri Jagdish Kumar, S.I. posted at Police Outpost Gorai, P.S. Iglas. On 21.03.1992, he started the investigation. He received the copy of G.D. and injury reports of the injured, recorded the statement of Umesh Kumar, who prepared the chik FIR and registered the case in G.D.. On 24.03.1992, he recorded the statements of the witnesses and prepared site plant of place of occurrence, which is Ex. Ka-5. On completion of investigation, he submitted the charge sheet Ex. Ka-6 against the accused.

8. Charges under Sections 307/34, 323/34, 504 and 506 IPC were framed against the accused, who pleaded not guilty and claimed to be tried.

9. To prove its case, the prosecution has examined as many as seven witnesses namely PW-1 complainant injured Prithvi Singh, PW-2 Dr. R.K. Gupta, who examined the injuries of the injured persons, PW-3 Holawar (ocular witness), PW-4 SI Jagdish Kumar Investigating Officer, PW-5 Constable Umesh Kumar, who prepared chik FIR Ex. Ka-7 and entered the case in G.D. at serial no.36 vide its copy Ex. Ka-8, PW-6 Dr. Qamar Ahmad, who proved the X-ray report Ex. Ka-9 and the X-ray plate Ex. Ka-10 of injured Smt. Jai Devi and PW-7 Smt. Jai Devi.

10. All accused/appellants in their statements u/s 313 Cr.P.C. have denied all material facts of the prosecution. Co-accused Chhitu alias Chhitar Singh stated that on 11.02.1985, the complainant Prithvi Singh and two others assaulted him, regarding which a complaint was filed against the complainant Prithvi Singh and others, in which he and his brother Fauran (appellant) gave evidence, due to which he and his brother have falsely been implicated in this case. To prove the aforesaid incident, copy of FIR, copy of injury report dated 11.02.1985 have been produced, but they have not examined any witness to prove these documents.

11. After scrutinizing and appreciating the evidence available on record, the learned trial court recorded a finding of acquittal of co-accused Chhitu and Sughadi while convicted the accused-appellants Fauran Singh and Ruman for the offence under Section 324 IPC and there is nothing on record that any appeal has been filed by the State or complainant against the impugned judgment and order of acquittal.

12. Heard Sri Vineet Kumar Singh, learned counsel for the appellants and Ms. Anjum Haq, learned A.G.A. for the State.

13. Learned counsel for the appellants did not make any argument regarding merit of the case and did not challenge the findings recorded by the learned trial court. Learned counsel for the appellants at the very outset conceded that so far as conviction part of the appellants is concerned, the opinion by the learned trial court does not suffer from any error.

14. Learned counsel for the appellants did not harp much so far as the conviction of the appellants under Section 324 IPC is concerned, hence the detailed examination of evidences is hereby eschewed. The main thrust of the arguments of the learned counsel for the appellants is that there was no intention of the accused persons to assault informant or his wife, but the occurrence took place at the spur of moment and the sentence be reduced in terms of fine only.

15. Learned A.G.A. also had no serious arguments on the said score as she has also conceded to the fact that the appeal is old one and the sentence is only for three year and more than 19 years have elapsed, but the appeal could not be decided.

16. Not pressing the criminal appeal after the conviction of the accused by the Court below is like the confession of the offence by the accused. The courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

17. In case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:-

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

18. In Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, the Hon'ble Apex Court has reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:-

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.

16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

19. I also fully agree with the view of the learned Trial Court. The case is fully covered within the purview of section 324 IPC as there was no intention to commit murder of the injured. This incident is very old one of dated 19.03.1992 and the Trial ended on 19.12.1997. Now this is year of 2017 much time have elapsed. Now, it will not be very useful to send accused/ appellants to jail for serving out the remaining sentence as passed by the Trial Court, I agree with the arguments advanced by the learned counsel for the appellants that the accused-appellants Fauran Singh and Ruman may be sentenced for fine as well as for the period of imprisonment already undergone. In the circumstance, I hereby deem it fit to modify the judgment of the Trial Court to the extent that appellants are convicted and sentenced for the period having served in jail and to impose a sentence of fine of Rs.25,000/- on each of the accused/ appellants and in default to undergo a rigorous imprisonment for six months.

20. Despite there being provision, trial courts are reluctant to award compensation. Noticing this inhibition, Hon'ble Apex Court in the case of Hari Krishna and State of Haryana Vs. Sukhbir Singh [(1988) 4 SCC 551], has made following observations:-

"Section 357 of the Cr.P.C. is an important provision but Courts have seldom invoked it. This Section of law empowers the Court to award compensation while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to the victim who has suffered by the action of the accused. This power to award compensation is not ancillary to other sentences but is in addition thereto. 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 crimes. It is indeed a step forward in our criminal justice system. We therefore recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way."

Matter was examined in great detail in the case of Smt. Nilabati Behra Vs. State of Orissa [(1993)2 SCC 746]. This was a landmark judgment which evolve a theory of compensation for the constitutional torts.

In the case of Baldev Singh Vs. State of Punjab [(1995) 6 SCC 593], Hon'ble Apex Court has held that order of compensation would be more appropriate instead of sentence of imprisonment. It has thus advanced the theory of compensation.

In the case of Vijayan Vs. Sadanandan K and another [(2009) 6 SCC 652], it was held that default in payment of compensation authorizes the Court to order a default sentence under 357 (3) and Section 431 Cr.P.C. read with Section 64 I.P.C.

In the case of Manohar Singh Vs. State of Rajasthan and Ors. [2015 (89) ACC 266 (SC)], Hon'ble Apex Court has observed that punishment to the accused is one aspect, determination of just compensation to the victim is the other.

In the case of Ankush Shivaji Gaikwad Vs. State of Maharastra [(2013) 6 SCC 770], Hon'ble Apex Court held that it is a duty of the court, to apply its mind to the question of compensation in every case and Section 357-A Cr.P.C. was inserted on 31.12.2009 to cast a duty upon the State to formulate a Victim Compensation Scheme. Thus it can be safely culled out that compensation to victim has become a rule, whether recourse is had to Section 357 or 357-A Cr.P.C. Now the question is whether an appellate court can award compensation. Section 357 (4) itself provides that order of compensation can be passed by an appellate court as well as revisional court. Moreover, appeal being continuation of trial, appellate court can exercise all the powers which are vested in the trial court as has been held in the case of Subhash Chandra Vs. S.M. Agarwal [(1984) Criminal Law Journal 481], by the Hon'ble Apex Court."

21. Thus I am of the view that just compensation should be paid to both injured, the complainant Prithvi Singh and Smt. Jai Devi/ their legal heirs in equal shares out of the amount of fine to be deposited by the appellants, as appellants have been directed to deposit the amount of fine Rs.25,000/- each, total amount being Rs.50,000/-.

22. In view of the above, the appeal filed by the appellants is allowed in part, whereas the conviction of the appellants by impugned judgment and order is hereby maintained. Their sentence is reduced with fine of Rs.25,000/- each. The appellants Fauran Singh and Ruman are permitted to deposit fine within a period of one month from today, failing which they have to undergo six months' rigorous imprisonment. Concerned court will take all possible steps for realization of fine.

23. Let a certified copy of this judgment be sent to the concerned court immediately for intimation and immediate compliance. Concerned court shall send its report after compliance immediately.

Order Date :- 7.11.2017

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