Gopal Dass And Others vs State Of U.P.
2023 Latest Caselaw 12317 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Court No. - 45
 

 
Case :- CRIMINAL APPEAL No. - 1406 of 1995
 

 
Appellant :- Gopal Dass And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajeev Goswami
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Singh-I,J.

Heard Sri Rajeev Goswami, 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 29.08.1995 passed by VIIIth Additional Sessions Judge, Mathura, in Sessions Trial No. 12 of 1992, State of U.P. Vs. Gopal Dass and Others arising out of Case Crime No. 120 of 1990, Police Station- Vrindavan, District- Mathura.

3. By the impugned order, the trial court has convicted the appellants, Gopal Dass, Lala, Munna and Ravi u/s 308 I.P.C. and sentenced them to three years rigorous imprisonment. During pendency of the criminal appeal, appellant, Gopal Dass died and the criminal appeal qua appellant, Gopal Dass, was abated vide order dated 12.10.2022 of the Court. Thus, this appeal remains only qua appellant nos. 2, 3 and 4 namely, Lala, Munna and Ravi.

4. The prosecution case in brief is that on 31.03.1990 at 8.30 a.m., near Gopal Bhawan Bari Kunj in front of the house of Purushottam, accused Gopal Dass S/O Mihi Lal, Munna, Lala and Ravi, all sons of Gopal Dass, resident of Seva Kunj, Police Station- Vrindavan, District- Mathura, surrounded Chailbihari Sharma, and beat him with sticks and water pipe causing injuries to him. At that time, informant, Saroj Sharma, wife of Chailbihari Sharma, was at her house. On getting this information, informant Saroj Sharma ran and reached to the place of occurrence. Her husband, Chailbihari Sharma, was lying unconscious on the road. She carried her husband on rickshaw to police station concerned. The occurrence was witnessed by several persons of the neighbourhood. On the basis of written report (Ext.Ka.1) given by informant, Saroj Sharma, N.C.R. (Ext.Ka.7) u/s 323 I.P.C. was registered in Police Station- Vrindavan on 31.03.1990 at 9.10 a.m. On 11.04.1990, Girdhari Lal Sharma, brother of injured Chailbihari, submitted a written report (Ext.Ka.2) in Police Station- Vrindavan, in which it was mentioned that on 31.03.1990 at 8.30 a.m., in Maan Gali, Seva Kunj, Vrindavan, accused-appellants, Gopal Dass, Munna, Lala and Ravi and non-accused, Chhotey beat his brother, Chailbihari Sharma with lathi and iron rod. The report regarding it was registered by his sister-in-law (bhabhi), Saroj Sharma, on the same day in police station concerned. Due to the injury caused by accused, the condition of his brother is serious from the date of occurrence. He was admitted in Methodist Hospital for treatment where it was found that there is fracture of bone in his body. The entry regarding registration of N.C.R was made in G.D. on 31.03.1990 on 10.10 a.m. Certified copy thereof is (Ext.Ka.8) on record.

5. On the basis of the written report (Ext.Ka.2) given by Girdhari Lal Sharma on 11.04.1990, N.C.R. was converted as Case Crime No. 120 of 1990 u/s 147, 308 I.P.C. Carbon copy of the G.D. regarding registration of the criminal case under the aforesaid sections is (Ext.Ka.9).

6. The injured Chailbihari Sharma was carried to State Contagious Disease Hospital, Mathura, where Medical Officer Dr. S.K. Jain had done the medical examination of the injuries of the injured Chailbihari Sharma, aged 38 years and prepared the injury report (Ext.Ka.3). At the time of occurrence, following injuries were found on the person of Chailbihari Sharma :-

(i) Lacerated wound 5 cm x 0.05 cm skin deep on right side of head 10 cm above the right ear. Margins were irregular. Blood was oozing.

(ii) Lacerated wound 7 cm x 1 cm skin deep on left side of head, 10 cm above the left ear. Margins were irregular. Blood was oozing.

(iii) Lacerated wound 3 cm x 0.5 cm skin deep 3 cm in the injury no. (ii). Margins were irregular. Blood was oozing.

(iv) Three contusions of size 9 cm x 3 cm which were overlapping over one another on the right side of shoulder. X-ray advised.

(v) Abrasion red in colour 7 cm x 3 cm on back of right forearm.

(vi) Abrasion 3 cm x 2 cm behind of right forearm, 5 cm below the injury no. (v).

7. In the opinion of the Medical Officer P.W.3 Dr. S.K. Jain, injury nos. (i) to (iv) were caused by blunt object. Injury nos. (v) and (vi) appears to be caused by friction. All the injuries were fresh at the time of examination. The injuries could be caused by iron rod or pipe. They could have been caused on 31.03.1990 at 8.30 a.m.

8. The Investigating Officer PW4 S.I. Hoti Lal Sharma has prepared the site plan (Ext.Ka.4). He took the blood-stained clothes worn by injured Chailbihari Sharma. He took clothes which had become blood-stained after the occurrence in possession and prepared the memo thereof which is (Ext.Ka.5).

9. The injured Chailbihari Sharma was admitted in the Methodist Hospital, Mathura on 31.03.1990 where he had undergone medical treatment. The medical report and discharge summary of the hospital is (Ext.Ka.10). In the Methodist Hospital, Mathura, x-ray of his right shoulder, chest, head, rt. side chest, palm of hand was done. X-ray report (material Exts.1 to 4) is in the trial court file but it was not proved in the trial court. Injury summary and discharge report (Ext.Ka.10) was prepared by Dr. Anita Sundaram which was proved by P.W.6 Dr. D.W. Thomas.

10. After investigation, the Investigating Officer submitted charge-sheet (Ext.Ka.6) against the accused-appellants, Gopal Das, Munna, Lala and Ravi and non-convicted accused, Chhotey.

11. The case was committed by the Ist Additional Chief Judicial Magistrate to the court of Sessions. On 26.09.1992, the trial court framed charge u/s 147, 148 and 308 I.P.C. against accused-appellants, Gopal Das, Munna, Lala and Ravi and non-convicted/accused, Chhotey.

12. The prosecution in support of the charges, examined PW1 Smt. Saroj Sharma and PW2 Chailbihari Sharma as witnesses of fact whereas PW3 Dr. S.K. Jain, PW4 S.I. Hoti Lal Sharma, PW5 Banney Khan and PW6 Dr. D.W. Thomas, were examined as formal witnesses.

13. P.W.1 Smt. Saroj Sharma and P.W.2 Chailbihari Sharma gave evidence about the occurrence. P.W.1 Saroj Sharma proves written report (Ext.Ka.1). P.W.2 Chailbihari Sharma proves the written report dated 11.04.1990 submitted by his brother, Girdhari Lal Sharma in the concerned police station as (Ext.Ka.2).

14. P.W.3 Dr. S.K. Jain, who was posted at the time of the occurrence as Medical Officer, Government Contagious Disease Hospital, Mathura proves the medical report dated 31.03.1990 of injured Chailbihari Sharma as (Ext.Ka.3).

15. The Investigating Officer P.W.4 S.I. Hoti Lal Sharma proves the site plan (Ext.Ka.4). He also proves the recovery memo relating to taking the blood-stained clothes in possession of the injured (Ext.Ka.5). He also proves the charge-sheet (Ext.Ka.6) submitted by him in the case in the court after investigation. He further proved the N.C.R. No. 41 u/s 323 I.P.C. dated 31.03.1990 prepared by O/C Premi Singh. P.W.4 also proved the G.D. relating to institution of N.C.R. No. 41 u/s 323 dated 31.03.1990 time 9.10 a.m. in P.S.- Vrindavan as (Ext.Ka.10). He also proved the conversion of G.D. dated 12.04.2019 relating to N.C.R. No. 41 which has been converted as Case Crime No. 120 of 1990 u/s 123, 147 and 308 I.P.C. which is (Ext.Ka.9). P.W.4 also gave evidence regarding the investigation done by him.

16. P.W.5 Banney Khan, Record Keeper of Methodist Hospital, Mathura proved the medical report and the discharge summary of injured Chailbihari Sharma (Ext.Ka.10).

17. P.W.6 Dr. D.W. Thomas, proved the medical report and the discharge summary of injured Chailbihari Sharma (Ext.Ka.10) which was prepared by Dr. Anita Sundaram who had worked with P.W.6 Dr. D.W. Thomas and has mentioned the following injuries :

(i) bone deep injury on the head;

(ii) fracture in the rib nos. 1, 2, 3, 4, 7 and 8 on the right side of chest

(iii) fracture in the right shoulder of the injured

(iv) fracture in the proximal phalynx bone of the index finger of right hand.

In the opinion of P.W.6 Dr. D.W. Thomas, injuries were fatal in nature. They could have been caused on 31.03.1990 at 8.30 a.m. X-ray plates were given to the injured Chailbihari Sharma which were produced at the time of examination of P.W.6 Dr. D.W. Thomas. He proves the x-ray plates of injured relating to index finger and right ribs and the wrapper of the x-ray plate as (material Exts. 1 to 4). Injuries mentioned in the discharge slip was prepared on the basis of injury report and x-ray report.

18. On 20.06.1995, the trial court recorded the statements u/s 313 Cr.P.C. of accused, Gopal, Munna, Lala, Chhotey and Ravi. They have denied the prosecution case. They have submitted that false prosecution papers were filed. They have also stated that injured Chailbihari Sharma had occupied the land of the accused persons. He falsely implicated the appellants. Chailbihari Sharma had received injuries in an accident. The accused examined D.W.1 Brij Gopal in his defence.

19. Heard learned counsel for the appellant, learned A.G.A. and perused the entire appellate as well as lower court record.

20. The definition of attempt to culpable homicide is given in Section 308 I.P.C. which is as follows :

308. Attempt to commit culpable homicide.-- Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

21. Before the accused can be held to be guilty u/s 308 I.P.C., it was necessary to arrive at a finding that the ingredients thereof namely, requisite intention or knowledge was existing.

22. In Tukaram Gundu Naik Vs. State of Maharashtra, (1994) 1 SCC 465, the Apex Court has held that when the accused can only be attributed knowledge that by inflicting such injuries, he was likely to cause death and attempt to commit such an offence would be one punishable u/s 308 I.P.C.

23. Learned counsel for the appellants has argued that P.W.1 Saroj Sharma is not an eye-witness. She came at the place of occurrence only after the incident. There is only one witness, P.W.2 Chailbihari Sharma, who is the injured. When only injured P.W.2 Chailbihari Sharma has given evidence regarding the occurrence, conviction cannot be made on the basis of evidence of single partisan witness.

24. Learned A.G.A. for the State has stated that the prosecution has proved the case beyond reasonable doubt on the basis of oral and documentary evidence. The Apex Court has held in Suresh Sitaram Surve Vs. State of Maharashtra, AIR 2003 SC 344 that the evidence of an injured eye-witness cannot be discarded in toto on the ground of inimical disposition towards the accused particularly where his evidence when tested in the light of broad probabilities, it can be concluded that he was natural eye-witness and had no reason to concoct a case against the accused. He has further submitted that in case sentence is reduced to the period already undergone, the victim be paid compensation as provided under Section 357 Cr.P.C.

25. In the light of the above law propounded by the Apex Court, the appreciation of evidence of injured P.W.2 Chailbihari Sharma is to be done.

26. P.W.2 Chailbihari Sharma has proved by his evidence the date, time and place of occurrence. He has stated that on 31.03.1990 at 8.30 o'clock, he was going to P.S.- Vrindavan and when he was in front of the house of Purushottam in Seva Kunj, accused, Gopal and his sons, Munna, Chhotey, Lala and Ravi, with the intention of causing death, beat him with the pipe and danda. Gopal and Chhotey were armed with water pipe and others were having danda in their hands. He got his injuries medically examined first in Vrindavan and then in Methodist Hospital, Mathura. Due to the injuries received by him, he was admitted in Methodist Hospital, Mathura for 18-19 days. Due to the injuries received in the marpeet, he became unconscious. His ribs were fractured. This witness has been cross-examined in detail by the defence but his testimony regarding the date, time and place of occurrence, participation of accused in the offence and the injuries caused by them and the weapon of assault which they have used in causing injury and medical treatment of injured in the hospital first at Vrindavan and then at Methodist Hospital, Mathura, has not been shaken.

27. P.W.1 Saroj Sharma, wife of injured Chailbihari Sharma, who had reached the place of occurrence after the incident has stated in her evidence dated 08.03.1994 that about 4 years ago at 8.30 a.m. in the morning, accused Gopal, Munna, Lala, Ravi and Chhotey beat her husband with danda and water supply pipe in front of the house of Purushottam in Bari Kunj. His husband received grievous injuries on his body. The witness stated that her injured husband, who was present on the spot, informed her when she reached there. P.W.1 Smt. Saroj Sharma has stated that her husband had told her the names of the accused persons who had attacked him. The evidence of P.W.1 Smt. Saroj Sharma and P.W.2 Chailbihari Sharma has been corroborated by oral evidence of doctors, injury report, prosecution papers i.e. written report, chik F.I.R., medical examination report of victim, Chailbihari Sharma at Government Hospital, Vrindavan and Methodist Hospital, Mathura. The evidence of P.W.1 Smt. Saroj Sharma and P.W.2 Chailbihari Sharma are cogent, convincing and reliable. Nothing has emerged in their cross-examination which may raise doubt about the veracity of their evidence.

28. From the appreciation of oral and documentary evidence, it is concluded that on the date, time and place of occurrence, appellants, Munna, Lala and Ravi with the intention of causing culpable homicide not amounting to murder with the knowledge of causing such injury to injured Chailbihari Sharma that if he died, the appellants would be guilty of culpable homicide not amounting to murder, caused grievous injury which was dangerous to life to the injured Chailbihari Sharma. The court has rightly convicted the appellant u/s 308 I.P.C. There is no force in the criminal appeal which is likely to be dismissed.

29. D.W.1 Brij Gopal has deposed in his evidence that there was dispute regarding the house between the parties. He has stated that Chailbihari Sharma had received injuries in the accident but due to the enmity regarding disputed house, he had falsely implicated the appellants in the case. D.W.1 Brij Gopal could not narrate the boundaries of the disputed house. D.W.1 Brij Gopal is not the eye witness of the alleged accident in which Chailbihari Sharma received injuries. Thus, his evidence that Chailbihari Sharma received injuries in some accident and he falsely implicated the accused of the offence, cannot be accepted.

30. From the perusal of the record of the trial court, it is evident that appellants, Ravi, Lala and Munna were taken into custody on 01.05.1990. They were granted bail vide order dated 04.05.1990 by the trial court. Their bail bonds were accepted on 05.05.1990. Therefore, the appellants had remained in jail for 5 days during investigation of the case.

31. 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.

32. 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)

33. 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)

34. 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.

35. 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."

36. 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 has taken place on 31.03.1990 about 33 years ago 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, that the appellants are on bail for the last 33 years and they have not misused the liberty of bail during the said period, 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.

37. In view of above, the appeal is partly allowed. In judgment and order dated 29.08.1995 passed by VIIIth Additional Sessions Judge, Mathura, in Sessions Trial No. 12 of 1992, State of U.P. Vs. Gopal Dass and Others, the sentence is hereby modified to the period already undergone by the appellants and the fine imposed is raised from Rs.2,000/- to Rs.15,000/- to be paid by each accused, 50% of which shall be paid to the injured, Chailbihari Sharma.

38. The appellants, Lala, Munna and Ravi, each shall deposit the aforesaid amount of fine within two months from the date of this judgement. The trial court shall pay 50% of the amount of fine deposited to the injured Chailbihari Sharma and in case of his death, to his successors after proper identification. In case the appellants do not deposit the fine within the aforesaid period, they will have to undergo the sentence awarded by the trial court.

39. Let a copy of the judgement along with the record of the case be sent to the court concerned for execution of punishment as modified by the order passed in this criminal appeal.

Order Date :- 21.04.2023

KS