Kamlesh And Others vs State Of U.P.
2023 Latest Caselaw 12502 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 639 of 2021
 

 
Revisionist :- Kamlesh And Others
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Dilip Kumar Pandey,Ramesh Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. Heard learned counsel for the revisionists, learned AGA for the State and perused the material available on record.

2. This criminal revision has been filed under Section 397/401 Cr.P.C. against the judgment and order dated 10.9.2021 passed by the First Additional Sessions Judge, Raebareli in Criminal Appeal No. 74 of 2016 arising out of Criminal Case No. 584 of 2007, Crime No. 147 of 2000, U/s 323,326,504 IPC relating to Police Station- Gurubuxganj, District- Raebareli, whereby dismissed the appeal and confirmed the judgement and order dated 18.10.2016 passed by Additional Chief Judicial Magistrate, court no. 13, Raebareli by which the revisionists were convicted and sentenced for the offences under section- 323 I.P.C. for one year rigorous imprisonment with fine of Rs. 500/- in default of payment of fine two months additional imprisonment; and under section- 326 I.P.C. for six years rigorous imprisonment with fine of Rs. 2,000/- in default of payment of fine eight months additional imprisonment.

3. The prosecution story, in brief, is that prior to the incident at around 7.00 am, some altercation took place between the revisionists and the complainant. On 25.6.2000 at 7 am, when he went to bring water from the tap of Rajaram, the revisionists committed marpeet with lathi and danda. When the complainant shouted, then Kaushalya and wife of the complainant rushed to the spot and immediately all the revisionists fled from the spot by pouring acid on him. This incident was witnessed by the villagers and on the basis of the written report, the FIR was lodged against the revisionists as case crime no. 147 of 2000, U/s 323,326,504 IPC.

4. After investigation chargesheet was submitted before the magistrate who took cognizance and framed charges against the revisionists U/s 323,326,504 IPC. Charges were read over to the accused-revisionists in Hindi. They denied the charges levelled against them and claimed to be tried.

5. In order to prove its case, following witnesses were examined by the prosecution:

(i) PW-1 Gaya Prasad who supported the version of the prosecution and stated that the revisionists inflicted injury to him by lathi and danda. Later on they poured acid on him and due to this he got acid burn injury. He proved the written report as Ex-ka-1.

(ii) PW-2 Kaushalya, who is the independent witness. She supported the prosecution version and clearly stated that the accused-revisionist Kamlesh poured acid on the complainant Gaya Prasad.

(iii) PW-3 Rajkumari who also supported the version of the prosecution.

(iv) PW-4 Dr. N. K. Srivastava who examined the injury of the injured Gaya Prasad on same day of the incident and following injury was found on his body:

1. Superficial chemical burn injury which was present on left side and right side of the face, around neck, left hand and upper arm and right lower arm. The injured got about 22 per cent burn injury.

2. Four contusions present on left hip measuring 15 cm x 15 cm.

The doctor opined that both the injuries were fresh. Injury no.2 was simple in nature caused by hard and blunt object and injury no.1 was kept under observation. The doctor proved the injury report of the injured Gaya Prasad as Ex-ka-2. 

(v) PW-5 Constable Moharrir who prepared the chik FIR and proved it as Ex-ka-3 and GD as Ex-ka-4.

(vi) PW-6 Investigating officer who was examined before the trial court as secondary witness and he proved the site plan as Ex-ka-5 and chargesheet as Ex-ka-6.

6. After completion of the prosecution witnesses, statement of the revisionists were recorded U/s 313 CrPC in which they stated that they have been falsely implicated case.

7. Learned trial court after appreciating the evidence available on record convicted and sentenced the revisionists as stated above.

8. Being aggrieved with the conviction and sentence order dated 18.10.2016 passed by the trial court, the revisionists approached before the appellate court by means of appeal which was dismissed by the appellate court vide order dated 10.9.2021 giving finding that there are no contradictions in the statement of the witnesses examined before the trial court. There is no reason for false implication of the revisionists and thus, the appellate court confirmed the order of the trial court vide order dated 10.9.2021. Being aggrieved with this order, this revision has been preferred by the revisionists.

9. Learned counsel for the revisionists submitted that only general allegation of assault has been assigned against the revisionists and as such no specific allegation was assigned against the revisionists for inflicting burn injury. Only on the basis of one injury caused by hard and blunt object, the trial court and the appellate court convicted and sentenced the revisionists. It is further submitted that the prosecution failed to establish any motive against the revisionists. Thus, the judgement of the trial court is based on conjecture and surmises. The trial court and the appellate court failed to appreciate the evidence properly. It is further submitted that there are several contradictions in the statement of the injured witness as well as other witnesses.

10. Learned counsel for the revisionists further submitted that the total incarceration period of the revisionists is about two years and one month and they have already spent substantial period of sentence in jail. Presently, the revisionists are languishing in jail since 10.9.2021.

11. Lastly, learned counsel for the revisionists submitted that however he does not want to argue the revision on merits. He wants to advance his submissions on the quantum of sentence imposed upon the revisionists.

12. Learned AGA appearing for the State supported the judgement of the trial court as well as the appellate court and submitted that there is no illegality, irregularity or perversity in the order passed by the trial court as well as the appellate court. Thus the revision has no force and is liable to be dismissed.

13. Not pressing the criminal appeal after the conviction of the accused/appellant 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.

14. The main goal of the criminal justice system is to prevent the occurrence of crime, to punish the transgressors, the criminals, to rehabilitate the transgressors and the criminals, to compensate the victim as far as possible, to maintain law and order in the society and to deter the offenders from committing any criminal act in the future. Thus, the main object of sentencing should be to achieve above mentioned goal of our justice system.

15. The identity of the revisionists could not be disputed. This fact is established that the acid burn injury was found on the face of the injured Gaya Prasad and due to this incident the injured has got grievous injury. This is an additional circumstance against the revisionists. The appellate court has rightly convicted the revisionists U/s 323,326,504 IPC.

16. Coming to the sentence to be imposed on the revisionists that the incident happened in the year 2000 and thus, 23 years have already passed. This fact is undisputed that there is no minimum sentence provided U/s 326 IPC and maximum sentence provided is life imprisonment which may extend to 10 years and also liable to fine.

17. On perusal of the section 326 IPC, it is clear that the no minimum sentence is provided therein. Presently the revisionists are languishing in jail since 10.9.2021. Thus about one year and 8 months have already passed after rejection of the appeal by learned sessions court. During trial the revisionists were in jail about 3 months. Thus, the total incarceration period of appellant is about two years. The injury which was inflicted on the body of the injured was superficial in nature. The injury which was inflicted to the injured Gaya Prasad was 22 per cent chemical burn injury. The matter pertains to year 2000. As such 23 years have already passed and no useful purpose shall be served to keep the revisionists in jail for remaining period of sentence. The end of justice shall be served if the sentence awarded by the trial court is reduced to the period already undergone.

18. In the present revision fine of Rs. 2,500/- each has been imposed by the trial court on the revisionists. 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.

19. Since the injured has got serious injury but the fine as compensation awarded by the trial court to the injured is inadequate. So in the interest of justice, considering the provisions of Section 357 Cr.P.C., the total fine of Rs. 2,500/- each is enhanced to Rs. 27,500/- each (total Rs. One Lakh and Ten Thousand), out of which Rs. 25,000/- each (total Rs. 1 Lakh) shall be payable to the injured Gaya Prasad and remaining Rs. 10,000/- shall be deposited by the revisionists in the State Exchequer. In case of death of the said injured, the same shall be payable to his legal heirs, failing to deposit the same, the revisionists shall surrender or they be taken into custody to serve out the remaining part of the sentence. One month time from the date of their actual release is granted to the revisionists to deposit the said amount before the trial court.

20. Thus, the revision is dismissed on point of conviction and partly allowed on the point of sentence only. The sentence of six years is hereby reduced to the period already undergone in jail.

21. Let the revisionists- Kamlesh, Ram Sukh, Kallu and Karinge @ Ayodhya Prasad be released forthwith.

22. Office is hereby directed to communicate the order of this Court to the trial court as well as district jail concerned for necessary compliance. The trial court record be also sent back.

Order Date :- 24.4.2023

Shravan