Ram Babu And Other vs State
2022 Latest Caselaw 18251 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Court No. - 93
 

 
Case :- CRIMINAL APPEAL No. - 1636 of 1994
 

 
Appellant :- Ram Babu And Other
 
Respondent :- State
 
Counsel for Appellant :- S.S. Shukla
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Surendra Singh-I,J.

Heard Sri Mahendra Pratap Singh, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.

2) This criminal appeal has been filed against the judgement and order dated 21.10.1994 passed by IVth Additional District and Sessions Judge, Kanpur Dehat, in Sessions Trial No. 101 of 1992, State of U.P. Vs. Ram Babu and another arising out of Case Crime No. 96 of 1989, Police Station- Sikandra, District- Kanpur Dehat.

3) By the impugned order, the trial court has convicted the appellants, Ram Babu and Ram Prakash u/s 308 r/w 34 I.P.C. and sentenced them to two years six months rigorous imprisonment.

4) The prosecution case as revealed by the written report dated 17.10.1989 submitted by informant Jairam in Police Station- Sikandra is that he is resident of Sahajpur, Police Station- Sikandra, District- Kanpur Dehat. Last year accused, Ram Babu had quarrel with informant's son, Jagdish due to which he kept enmity with the informant and his son. On 17.10.1989 at about 8 a.m., informant's son, Jagdish, was going to meet ex-M.P. of District- Etawah, Ram Singh Shakya, who had arrived in his village at the residence of Shiv Prasad. Accused, Ram Babu was holding a hansia in his hand. He exhorted his son that why is his enemy passing in front of his door. On the exhortation of accused-appellant, Ram Babu, his brother, Ram Prakash armed with a lathi, his son, Anil and Sudhir, armed with kanta arrived there and started beating informant's son, Jagdish. On hearing the noise, informant, Jairam, his other son, Rakesh and Vishram Singh son of Ram Sharan and other persons of his village arrived on the spot and raised alarm on which the accused persons escaped from the place of occurrence. Jagdish received grievous injuries caused by hansia, lathi and kanta. He fell down on the spot and became unconscious. The informant took Jagdish to the Police Station- Sikandra, where he gave the written report on the basis of which Case Crime No. 96 of 1989 u/s 308 I.P.C. was registered against the accused-appellants, Ram Babu and Ram Prakash and two other persons.

5) The institution of the criminal case was entered in the case diary by the Head Moharrir, Tara Singh, who proved the same as (Ext.Ka.4). The investigation of the case was first done by S.I. C.P. Singh and on his transfer by S.I. Madhusudan Singh, who visited the place of occurrence and prepared the site plan (Ext.Ka.5), recorded the statement of the witnesses and after completion of investigation, submitted charge-sheet u/s 308 I.P.C. against accused-appellants, Ram Babu and Ram Prakash. The case was then committed to the court of Sessions by Additional Chief Judicial Magistrate, IIIrd, Kanpur Dehat vide order dated 29.02.2022.

6) On 17.10.1992, the IVth Additional Sessions Judge, Kanpur Dehat, framed charge u/s 308 r/w 34 I.P.C. against accused-appellant, Ram Babu and Ram Prakash. They denied the charge and claimed trial.

7) To prove the charge, the prosecution examined injured PW1 Jagdish, informant PW2 Jairam and eye-witness PW3 Vishram Singh as witnesses of fact whereas Medical Officer PW4 Dr. Subhash Sharma, PW5 S.I. Tara Singh, who was the then Head Moharrir at Police Station- Sikandra, Investigating Officer PW6 S.I. Madhusudan Singh and radiologist PW7 Dr. V.C. Rastogi, were examined as formal witnesses.

8) PW1 Jagdish, PW2 Jairam and PW3 Vishram Singh gave evidence about the occurrence of crime. The informant PW2 Jairam also proved the written report (Ext.Ka.1) which he had submitted at the Police Station- Sikandra on the basis of which first information report was registered.

9) PW4 Dr. Subhash Sharma, the then Medical Officer at District Hospital, Sikandra, examined the injured Jagdish on 17.10.1989 at 8.30 p.m. and had prepared his injury report (Ext.Ka.2). As per the injury report, following injuries were found on the person of the injured Jagdish :

(i) Incised wound 2 cm x 3 cm x bone deep at right side of forehead at right frontal 1.5 cm above from right eyebrow. Margin regular, clotted blood present.

(ii) Incised wound 1.8 cm x 0.5 cm x bone deep at the right side of the face, 0.5 cm away from lateral canthus of right eye and 3 cm slightly below from injury no. 1. Margin regular, clotted blood present.

(iii) Abraded contusion 5 cm x 1 cm at right side of the neck, 1.5 cm on backward from right ear. Size of abrasion 3.5 cm x 0.5 cm. Oozing present. Colour of contusion bluish red in colour.

(iv) Incised wound 4 cm x 0.8 cm x through and through at the left side of the face just above the left side of the upper lip. Similar injury was found on upper jaw below the left lip in the gums. The edges of the injury were clear cut and blood was oozing.

(v) Contusion 9 cm x 1.5 cm at the side of back 3.5 cm below the interior angle of left scapula. Reddish in colour.

(vi) Abraded contusion 7.5 cm x 2 cm at the left side of the back 7 cm below from injury no. 5. Reddish in colour.

(vii) Traumatic swelling 4 cm x 3 cm at the right hand at upper aspect just above the root of right thumb. Deformity in carpal bone was found and could not be moved. It appears that there is fracture in first carpal bone.

(viii) Abrasion 5 cm x 0.5 cm at the left leg of upper aspect 12 cm below from knee joint.

In the opinion of the doctor, all injuries except injury nos. (i), (ii), (iv) and (vii) were simple in nature and caused by hard blunt object. Injury nos. (i), (ii), (iv) and (vii) were grievous in nature and caused by sharp-edged weapon. X-ray was advised for injury nos. (i), (ii), (iv) and (vii). All the injuries were fresh. Injury nos. (i), (ii), (iv) and (vii) could be caused by kanta and hansia. The other injuries could be caused by lathi and danda.

10) PW7 Dr. V.C. Rastogi, the then Radiologist at District Hospital, Kanpur Dehat, who had x-rayed the left hand and left forearm of injured Jagdish, has proved the x-ray report relating to hand as material Ext.1 and 2 and that relating to left forearm as material Ext.3. He has stated that in his evidence that the nature of material Ext.1 and 2 was NAD and in material Ext.3, location of metacarpal phalynx of left thumb seen. He has proved his x-ray report as Ext.Ka.7.

11) The then Head Moharrir at Police Station- Sikandra, S.I. Tara Singh has proved the chik F.I.R (Ext.Ka.3) and the report relating to institution of the case in G.D. (Ext.Ka.4).

12) The Investigating Officer, PW6 S.I. Madhusudan Singh, has proved the site plan (Ext.Ka.5) and charge-sheet (Ext.Ka.6).

13) On 24.09.1994, the court recorded the statement of accused-appellants, Ram Babu and Ram Prakash u/s 313 Cr.P.C. They stated that the witnesses were giving false evidence. They had not committed any offence. They had not caused injury to Jagdish on the alleged place, date and time of the occurrence and a false case was registered due to enmity against them. They did not examine any witness in their defence.

14) Injured PW1 Jagdish has stated in his evidence that on 17.10.1989 at 8 a.m. while he was going to meet the ex-M.P., Ram Singh Shakya, who had come in the house of Shiv Prasad while he was passing in front of the door of the accused-appellants, Ram Babu exhorted his brother, accused-appellant, Ram Prakash and his son, Anil and Sudhir. The accused-appellant, Ram Babu attacked Jagdish with hansia and accused-appellant, Ram Prakash with lathi while Anil and Sudhir attacked him with kanta. On alarm being raised by Jagdish, his father, informant Jairam, his step-brother, Rakesh and Vishram Singh reached there. PW1 Jagdish was seriously injured in the incident. Thus, his presence on the spot of occurrence cannot be doubted. His evidence regarding the incident is reliable and convincing and nothing has been found in his cross-examination which may raise doubt in the veracity of his statement.

15) On hearing the noise raised by PW1 Jagdish, informant PW2 Jairam who arrived at the place of occurrence, has corroborated the evidence of PW1 Jagdish to the extent about the time, date, place and manner of occurrence and the fact that PW1 Jagdish received injury during the course of the occurrence. But he did not corroborate the complicity of accused-appellants, Ram Babu and Ram Prakash, in the offence. He also deposed that after the incident, PW2 Jairam carried the injured Jagdish to Police Station- Sikandra from where on the basis of his written report, F.I.R was registered and the injured Jagdish was brought to P.H.C., Kanpur Dehat, where the Medical Officer noted his injuries and on his advice, he was sent to District Hospital, Kanpur Dehat where x-ray of his left hand and left forearm was done. PW3 Vishram Singh has deposed that he did not witness the occurrence.

16) The Indian Evidence Act has not prescribed any minimum number of witnesses required for proving a fact as it is provided in Section 134 of Indian Evidence Act.

Section 134 of Indian Evidence Act : No particular number of witnesses shall in any case be required for the proof of any fact.

17) It has been held by Hon'ble Supreme Court in Laxmibai (Dead) through LRs Vs. Bhagwantbura (Dead) through LRs, AIR 2013 SC 1204 that in the matter of appreciation of evidence of witnesses, it is not number of witnesses, but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by Section 134 of the Act.

18) From the perusal of evidence of injured PW1 Jagdish, it appears that his testimony is wholly reliable and truthful. Being the injured, he would not spare the actual offender in his evidence. Nothing otherwise has been mentioned in his cross-examination which may shake his testimony and raise doubt about his reliability and veracity. The evidence given by PW1 Jagdish and PW2 Jairam has been corroborated by documentary evidence namely written report, chik F.I.R., entry of institution of registration of criminal case in G.D., injury report and x-ray report with x-ray plate of the injuries received by PW1 Jagdish in the occurrence, site plan and charge-sheet prepared by the Investigating Officer. From the analysis of the oral and documentary evidence, it could be concluded that with a common intention of causing culpable homicide not amounting to murder, accused-appellants, Ram Babu and Ram Prakash injured Jagdish with hansia and lathi respectively, causing him grievous injury. From the evidence on record, the Court comes to the conclusion that the prosecution has proved the charge u/s 308 r/w 34 I.P.C. beyond reasonable doubts against accused-appellants, Ram Babu and Ram Prakash. The trial court has rightly convicted the accused-appellants under Section 308 r/w 34 I.P.C.

19) Learned counsel for the appellants has argued that the date of birth of accused-appellants, Ram Babu and Ram Prakash is 06.04.1953 and 01.01.1954 respectively. Their present age is 69 and 68 years respectively. Accused-appellants, Ram Babu and Ram Prakash, informant, Jairam and injured, Jagdish are residents of the same village. The accused-appellants are living peacefully with informant and injured for the last 28 years after they were convicted by the trial court on 21.10.1994. The attack by the accused-appellants was not planned but it took place suddenly in the heat of moment. It has also been argued on behalf of accused-appellant that during investigation, they remained in jail for 23 days. The duration of custody of accused-appellants, Ram Babu and Ram Prakash, in jail during investigation is corroborated from the date of their arrest mentioned in the arrest memo and the date of acceptance of bail bonds by the trial court. The accused-appellants have prayed that their sentence may be reduced and they may be released for the period which they have undergone in jail during investigation and trial.

20) Learned A.G.A. appearing for the State has vehemently opposed the prayer. However, he could not deny the submissions made on behalf of the accused-appellants. He further submits that in case sentence is reduced to the period already undergone, the victim be paid compensation as provided under Section 357 Cr.P.C.

21) We have heard learned counsel for both the parties and perused the entire lower court record.

22) This Court finds that the alleged eye-witness, informant PW2 Jairam has not fully supported the evidence of injured PW1 Jagdish because it appears that the evidence of PW2 Jairam was recorded about 4 ½ years after the date of occurrence and he is resident of the village of the accused-appellants, Ram Babu and Ram Prakash and due to compromise, he may have settled his dispute and he did not give evidence against the accused-appellants. But the hostile evidence of PW3 Vishram Singh does not obliterate the truthful and convincing evidence of injured PW1 Jagdish and partially true evidence of PW2 Jairam which in turn is supported by documentary evidence. From the perusal of the injuries received by injured PW1 Jagdish and the x-ray report, it appears that injuries on his forehead and face are simple in nature. The only injury received in the metacarpal phalynx of left forearm is grievous as there is dislocation of the aforesaid bone. PW4 Dr. Subhash Sharma has not stated in his evidence that the injuries received by PW1 Jagdish were fatal or life threatening in nature. From the analysis of oral and documentary evidence adduced by the prosecution, the Court comes to the conclusion that on the alleged date, time and place of occurrence in pursuance of common intention, accused-appellants, Ram Babu and Ram Prakash, caused grievous injuries to injured Jagdish. From the evidence available on record, it is not proved that the accused-appellants had attacked the injured Jagdish with the intention of causing such injury which may result in culpable homicide not amounting to murder of Jagdish. Thus, prosecution has failed to prove the charge u/s 308 r/w 34 I.P.C. From the evidence on record, the prosecution has proved the charge u/s 325 r/w 34 I.P.C. against the accused-appellants, Ram Babu and Ram Prakash for which they are liable to be convicted. The appellants have already undergone 23 days in jail during investigation.

23) Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India.

24) Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts.

"... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused 'X' vs. State of Maharastra (2019) 7 SCC 1)

"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).

13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." (State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300)

25) It is also notable that "... where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125)

26) Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.

27) Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:

"11....Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation."

"31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay."

"54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision."

28) Considering the facts and circumstances of the present case as well as keeping in view the position of law as mentioned above and considering that the incident was happened about 33 years back; the incident was occurred in spur of the moment; and considering the judgment passed by Supreme Court in Roop Chand vs. State (NCT) of Delhi, 2020 (3) ALT (Crl.) 331 (A.P.) and Omanakkuttan and others vs. State of Kerala, 2021 (115) ACC 747, this Court is of the view that if the sentence awarded is reduced to the period already undergone and a reasonable compensation is awarded to the victim, the ends of justice would be served.

29) In view of above, the appeal is partly allowed. Judgment and order dated 21.10.1994 passed by IVth Additional District and Sessions Judge, Kanpur Dehat, in Sessions Trial No. 101 of 1992, is hereby modified to the extent that accused-appellants, Ram Babu and Ram Prakash, are convicted u/s 325 I.P.C. instead of Section 308 r/w 34 I.P.C. as done by the trial court.

30) Accused-appellants, Ram Babu and Ram Prakash, are sentenced to the period already undergone, provided they deposit Rs. 4,000/- each as fine out of which Rs. 4,000/- shall be paid to the victim, PW1 Jagdish, within a period of two months from today. In case fine is not deposited, as directed above, appellants, Ram Babu and Ram Prakash, shall undergo the imprisonment for the period sentenced by the trial court.

31) Lower court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

Order Date :- 22.11.2022

KS