Shiv Ram & Another. vs State Of U.P.
2021 Latest Caselaw 9857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved  on: 03.08.2021
 
Delivered on: 09.08.2021
 
Court No. - 30
 

 
Case :- CRIMINAL APPEAL No. - 984 of 2001
 

 
Appellant :- Shiv Ram & Another.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Upendra Sharma,Ram Chandra Dwivedi,Sanjay Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

(Appellant no. 1-Shiv Ram had died during the pendency of appeal)

1. Heard Mr. Upendra Kumar Sharma, Advocate holding brief of Mr. Ram Chandra Dwivedi, learned counsel for appellant, Mr. Veer Raghav Chauhan, learned A.G.A. for the State and perused the lower court record.

2. This criminal appeal has been preferred by the appellant challenging the impugned judgment and order dated 17.10.2001. The appellant has been convicted and sentenced three years rigorous imprisonment for offence punishable under Section 324 IPC and amount of Rs. 1,000/- has been imposed as fine with default stipulation by the court of Additional Sessions Judge, Fast Track Court No. 1, Sitapur, Barabanki in Sessions Trial No. 569 of 1995 (State Vs. Shiv Ram and others) arising out of Case Crime No. 39 of 1991, Police Station Ataria, District Sitapur.

3. Brief facts of this case emerges out as under:-

4. The complainant Vikrmaditya lodged a written report Ex. Ka-1 at Police Station Ataria, District Sultanpur on 09.03.1991 with the allegation that his brother at the time of incident was pursuing B.Sc. In D.A.V. College, Lucknow. The alleged date of incident, appellant Gurcharan demanded Rs.1,820/-, which was borrowed by his brother. When he was returning from Lucknow to homeOn 09.03.1991 at about 6:30 p.m., then near the village accused Shiv Ram son of Chhotkau, Haredev, Gurcharan and Sukkha armed with Banka inflicted grievous injuries with intention to kill his brother. On screaming, complainant Vikrmaditya, Mahadev, Chandra Shekhar rushed the spot and all the accused persons fled away from the place of occurrence. Due to this act of accused persons, his brother Shri Krishna got serious injuries on his body. With this allegation, FIR of this case (Ex. Ka-1) was lodged at Police Station Ataria, District Sitapur.

5. On 09.03.1991 at about 10:30 p.m., the investigation of this case was entrusted to mr. B.P. Singh, who was Investigating Officer of this case. During investigation, the Investigating Officer prepared site plan on pointing out of complainant. During investigation, injured Shri Krishna Chandra was medically examined and following injures were found on the body of the victim:-

(i) Incised wound 7 c.m. x 2 c.m. scalp bone deep on right side of scalp, 2 c.m. above right side of eye.

(ii) Incised wound 5.5. c.m. x 1 c.m. scalp bone deep situated in right side of head, below 4 c.m. from injury no. (i).

(iii) Incised wound 5 c.m. x 1.5 c.m. scalp bone deep 9 c.m. above from ear.

(iv) Incised wound 2 c.m. x 0.5 c.m. scalp bone deep, below 3 c.m. from injury no. (iii).

(v) Incised wound 5 c.m. x 1.2 c.m. scalp bone deep 2 c.m. above from injury no. (iii).

(vi) Incised wound 2 c.m. x 0.5 c.m. scalp bone deep 7 c.m. below left side of ear.

(vii) Incised wound 9 c.m. x 4 c.m. scalp bone deep on left side 6 c.m. below ear,

(viii) Incised wound 4.5 c.m. x 2.5 c.m. muscle deep present on back 7 c.m. below right shoulder.

(ix) Incised wound 1 c.m. x 0.5 c.m. skin deep present on back of right shoulder.

(x) Incised wound 1 c.m. x 0.5 c.m. skin deep on the back of left thumb in between thumb and index finger."

6. Injury no. (i) to (vi) were kept under observation and injury no. (vii) to (x) were found simple in nature.

7. The injury report (Ex. Ka-9) was proved by Pharmacist (PW-5) C.K. Singh as secondary evidence.

8. The Investigating Officer after concluding the investigation, submitted charge sheet against appellants Shiv Ram, Haredev, Gurcharan and Sukkha for offence punishable under Sections 307 IPC and before the competent court on 20.11.1991.

9. The learned C.J.M. Sitapur after taking cognizance committed the case against the accused persons for trial on 25.8.1995.

10. The trial court framed charges on 17.10.1996 against the appellants/accused persons for offence punishable under Section 307 read with Section 34 IPC. The appellants/accused persons pleaded not guilty and claimed to be tried.

11. The prosecution, in order to prove its case, examined six witnesses. PW-1 complainant Vikrmaditya, who lodged the written report and proved the same as Ex. Ka-1. PW-2 Shri Krishna, is the injured witness, who narrated entire incident. PW-3 the then S.H.O. B.P. Singh is the Investigating Officer of the case. PW-4 S.H.O. K.P. Singh, the second Investigating Officer of the case. PW-5 Constable Gaya Prasad, who prepared the necessary papers relating to this case. PW-6 C.K. Singh, Chief Pharmacist.

12. After relying on the oral testimonies of the witnesses, the prosecution also relied upon the following documents as exhibits:-

Written report (Ex. Ka-1), recovery memo of bloodstained cloths of the injured (Ex. Ka-2), charge sheet (Ex. Ka-3), site plan (Ex. Ka-4), chick FIR (Ex. Ka-5), report regarding weeding out of the G.d. as Ex. Ka-6, carbon copy of G.D. as Ex. Ka-7, report of Police Station Ataria for requesting medical report (Ex. Ka-8), and injury report (Ex. Ka-9).

13. Thus the prosecution relied upon the testimony of PW-1 to PW-6 and as a documentary evidence Ex. Ka-1 to Ka-9.

14. After conclusion of the trial, the trial court exonerated the charges levelled against accused persons under Section 307/34 IPC but convicted appellants Shiv Ram and Gurcharan under section 324 IPC and fine of Rs.1,000/- each was also imposed.

15. Feeling aggrieved with the impugned judgment and order of conviction, the appellants preferred instant appeal. During pendency of appeal, appellant Shiv Ram died, therefore, appeal it so far as it related to Shiv Ram has been abated on 08.03.2018. Presently appellant Gurcharan is challenging this appeal.

16. At the very outset, learned counsel for appellant has submitted that the appellant is a very poor person. Further submission is that the appellant does not want to argue this appeal on merits. He wants some leniency from the Court as the case pertains to the year 1991 and at present the present appellant is 68 years old.

17. Learned counsel for appellant has submitted that he only want to argue this appeal on the point of quantum of sentence only.

18. 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.

19. Now the question arise sentence to be inflicted in such circumstances, what is the appropriate sentence is defined and explained in paragraph nos. 8 to 10 by this Court in the case of Kaushal Kashyap Vs. State of U.P. passed in Criminal Appeal No. 7194 of 2018, which reads as under:-

8. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

9. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs. State (NCT of Delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs. Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs. State of Haryana, (2016) 1 SCC 463.

10. In Kokaiyabai Yadav vs. State of Chhattisgarh (2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

20. Initially the accused appellant has been charge-sheeted under Section 307 IPC. Only appellant no. 2 Gurcharan is surviving appellant and presently his age is 68 years. Perusal of the record shos that appellant was in detention during investigation from 19.03.1991 to 11.04.1991 about 23 days. After conviction, appellant was sent to jail on 17.10.2001 and appellant was bailed out on 22.11.2001. Thus, the appellant was in detention after conviction about one month and six days. During the pendency of the appeal, the appellant was sent in jail on 18.3.2020 since then the appellant is in jail. So in these circumstances, the whole period of detention of the appellant in this appeal more than one year and six months.

21. Under Section 324 IPC, the maximum period of sentence is provided three years and more than one and a half years sentence has already been served out by the appellant-Gurcharan.

22. Coming to the sentence to be imposed on the appellant, since the incident occurred more than three decades ago, presently the appellant is about 68 years of age and during intervening period he had not indulges into any criminal activity nor he had any criminal background, so in view of the above, considering the entire facts and circumstances of the case, this Court is of the opinion that the end of justice would meet, if the sentence of appellant be reduced from three years to the period already undergone by him in jail.

23. In the present appeal fine of Rs.1,000/- has been imposed by the court below on the appellant. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry.

24. Considering the provisions of Section 357 Cr.P.C., the fine of Rs.1,000/- is enhanced to Rs.5,000/-, which shall be deposited before the court below and the same shall be paid to injured Shri Krishna, if he is alive. In case of his death, the same shall be given to his legal heirs. Presently the appellant Gurcharan is languishing in jail in pursuance of non-bailable warrants issued by this Court, therefore, appellant Gurcharan be released from jail immediately, if he is not wanted in any case.

23. Thus the appeal is dismissed on the point of conviction and partly allowed on the point of sentence.

26. Fifteen days is provided to the appellant to deposit fine amount from the date of his release before the court below. If he fails to deposit the same, he shall serve out the remaining period of sentence as awarded by the trial court.

27. The copy of judgment along with lower court record be sent to the trial court and the concerned Jail Superintendent for compliance.

Order Date :- 09.08.2021

Virendra