Ram Lakhan Singh vs The State Of U.P.
2023 Latest Caselaw 1665 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved  on: 06.01.2023
 
Delivered on: 17.01.2023
 
Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 2450 of 2007
 

 
Appellant :- Ram Lakhan Singh
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Shri Sampurnanand,Ajay Singh,Amrish Singh,Mohammad Babar Khan,Rudra Pratap Singh
 
Counsel for Respondent :- Govt.Advocate,A.R.Siddiqui,Rehan Ahmad Siddiqui
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for appellant and Mr. Arvind Kumar Tripathi, learned A.G.A. for the State and perused the trial court record.

2. This criminal appeal has been preferred by appellant Ram Lakhan Singh challenging the impugned judgment and order dated 10.10.2007 passed by learned Additional Sessions Judge/F.T.C. Room No. 9, Lucknow in Sessions Trial No. 1202 of 2006, (State Vs. Ram Lakhan Singh), arising out of Case Crime No. 7 of 2004 under Section 308 IPC, Police Station Chinhat, Lucknow. By the said judgment, the appellant has been convicted and sentenced for three years simple imprisonment and fine of Rs. 1,000/-. In default of payment of fine, he was to undergo for two months additional imprisonment.

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

The FIR (Ex. Ka-1) of this case was lodged on 7.1.2004 at about 8.30 p.m. by complainant Ram Kumari with the allegation that son of Ram Lakhan Singh of her village namely Maanu Singh had made ugly and indecent remark/comments against her daughter on 04.01.2004 at about 6:00 p.m., thereupon her husband Ram Prasad Sharma questioned Maanu Singh to abstain himself from such acts in future. Due to this reason, on 07.01.2004 at about 6:00 p.m. appellant Ram Lakhan Singh, armed with lathi, his brother Nanku Singh (brother of appellant) and Mannu Singh (son of appellant) came near the house of complainant Ram Kumari. As soon as Ram Prasad Sharma reached there, appellant Ram Lakhan Singh inflicted injuries to Ram Prasad Sharma with lathi blow on his head. Co-accused Nanku Singh and Mannu Singh extended threats to injured and his family with dire consequences. In this incident Ram Prasad Sharma got head injury and became unconscious. Meanwhile, Uma Shankar and other villagers rushed towards the place of occurrence and seen the entire incident.

4. On this allegation FIR of this case was lodged by the complainant against Ram Lakhan Singh, Nanku Singh and Mannu Singh on the same day at 8:30 p.m. as Case Crime No. 7 of 2004, under Sections 308, 504 and 506 IPC.

5. The investigation of this case was entrusted to the Investigating Officer. During course of investigation, the Investigating Officer recorded the statement of injured Ram Prasad Sharma under Section 161 Cr.P.C. and collected the injury report of Ram Prasad Sharma, prepared the site plan, recorded statements of other eyewitnesses. The injured Ram Prasad Sharma was sent for medical examination at Balrampur Hospital. The injured was medically examined by Emergency Medical Officer Dr. S.M. Kalra on 7.1.2004. During examination following injuries were found on his body:-

(i) A lacerated wound size 5.5 cm. x 0.5 cm. x scalp deep on right side of head.

6. After completion of formalities of investigation, charge sheet was filed against the appellant Ram Lakhan Singh before the Magistrate under Sections 308, 504 and 506 IPC while other named co-accused persons Nanku Singh and Maanu Singh were exonerated. Thereafter the committal order was passed by the learned Magistrate and case was committed to the court of Sessions and the case was transferred to learned Additional District & Sessions Judge/F.T.C. Court No. 9, Lucknow for trial. The charges were framed against the appellant by the trial court on 27.11.2006 under Sections 308, 504 and 506 IPC in which charges were read-over to the appellant to which he denied the allegation levelled against him and claimed to be tried.

7. In order to prove its case, the prosecution has examined the following witnesses:-

(i) PW-1 Ram Kumari is the complainant of the case and wife of injured Ram Prasad Sharma.

(ii) PW-2 Ram Prasad Sharma is the injured witness.

(iii) PW-3 Km. Seema, daughter of injured, who herself stated to be an eyewitness of the occurrence.

(iv) PW-4 Dr. S.M. Kalra, who medically examined the injured.

(v) PW-5 Uma Shankar is the independent eyewitness.

(iv) PW-6 Mr. R.K. Shukla is the Investigating Officer of the case.

8. PW-1 Ram Kumari in her examination-in-chief has stated that she seen the occurrence. She was present at the place of occurrence. She herself presented the written report of this case before the S.H.O. concerned for lodging of the FIR, which was proved as Ex. Ka-1.

9. PW-2 Ram Prasad Sharma, who is an injured witness, has fully supported the prosecution case. He has stated in his statement that near his house, the appellant inflicted injury with lathi on his head. Although in cross-examination, some minor contradictions occurred in his statement but there is no material contradictions.

10. PW-3 Km. Seema is the daughter of injured. She has fully supported the case of the prosecution.

11. PW-4 Dr. S.M. Kalra, who is the Medical Officer, Women Hospital Lucknow. He has stated in his statement that on 7.1.2004 he was on emergency duty at Balrampur Hospital. He medically examined the injured at about 9:00 p.m., who was brought by C.P. 353 Lal Singh and following injury was found on the body of injured:-

(i) A lacerated wound size 5.5 cm. x 0.5 cm. x scalp deep on right side of head.

The doctor opined that injury caused by hard and blunt object. Duration was fresh. The injury was kept under observation and refer to neurosurgeon but the injured refused to do so.

12. The said injury was caused by some hard and blunt object and duration was fresh. The said injury was kept under observation and referred for neurosurgeon but the injured refused for neurosurgery. The doctor proved the injury report as Ex. Ka-2.

13. PW-5 Uma Shankar is the villager of same village and is eyewitness of this incident, who also fully supported the prosecution case.

14. PW-6 S.I. R.K. Shukla, Investigating Officer has also proved the site map as Ex. Ka-3, and charge sheet Ex. Ka-4. Further by means of secondary evidence, check report Ex. Ka-5, and G.D. as Ex. Ka-6 were also proved.

15. Subsequent to closure of prosecution evidence, statement of appellants under Section 313 Cr.P.C. was recorded by trial court explaining entire evidence and other incriminating circumstance. In statement recorded under Section 313 Cr.P.C., the accused appellant denied prosecution version. The appellant did not choose to lead any evidence in his defence.

16. After hearing both the parties and appreciating entire oral and documentary evidence available on record, the trial court convicted the accused appellants as aforesaid.

17. Learned counsel for appellant has submitted that the false FIR has been lodged against the appellant and false evidence has been led by the witnesses. It is further submitted that a litigation was going on between the appellant and one person of village Ratan Singh. Ratan Singh and injured Ram Prasad Sharma belong to same party. Due to this reason wife of injured Ram Prasad Sharma lodged the false FIR of this case against the appellant.

18. Learned counsel for appellant has submitted that the doctor could not opined the nature of injury. During course of investigation, the injury was kept observation. Neither the report of CT scan nor supplementary injury report was brought on record by the Investigating Officer. So in these circumstances, it can be observed that injury inflicted to PW-2 Ram Prasad Sharma is simple in nature and not serious one so the trial court wrongly convicted the appellants under Section 308 IPC and the alleged offence does not fall beyond the purview of Section 323 IPC

19. It is further submitted that the Investigating Officer exonerated two named accused persons, namely, Nanku Singh and Maanu Singh. Thus the prosecution story is concocted and fabricated and is not supported with injury report.

20. Lastly learned counsel for appellant has submitted that during trial the appellant was in jail about 30 days and the appellant was convicted first time and there is no criminal history against the appellant. Further submission is that about 19 years have also passed and presently both the parties, the appellant side and complainant side are well rooted in society. He further submits that it is an old matter and the appellant may not be sent to jail. Further submission is that the appellant is ready to pay compensation to the injured. The appellant has not been convicted previously for any offence, therefore, lenient view may be may be taken against the appellant.

21. Further learned counsel for appellants submitted that though there are sufficient reason to challenge the judgment on merits yet they are restricting the challenge to non-consideration of the applicable of provision contained in Section 4 of Probation of Offenders Act, 1958 (in short "Probation Act") and Section 360 Cr.P.C.

22. Learned A.G.A. for the State has opposed the appeal and has submitted that there is no material irregularity or illegality committed by the trial court. Further submission is that keeping in view the evidence available on record the accused- appellant has rightly been convicted by the trial court.

23. In view of the above, prima facie, in my opinion, no offence under Section 308 IPC is made out although the injury was inflicted on the head of the injured but as per opinion of the doctor, the injury was simple in nature. Therefore, the appellant has been wrongly convicted under Section 308 IPC. The only Section 323 IPC is attracted and the appellants could be convicted under Section 323 IPC.

24. It would be appropriate to quote Section 360 Cr.P.C. reads as follows:-

Section 360 Cr.P.C. reads as follows:

"360. Order to release on probation of good conduct or after admonition :-

(1) When any person not under twenty one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, Character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that, where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu, thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of Sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognisance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant shall be brought forthwith before the Court issuing warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1951), the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders."

Section 361 Cr.P.C. reads as under:-

361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or

(b) a youthful offender under the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.

Section 3, 4 and 5 of the Probation of First Offenders Act reads as under:-

Section 3- Power of court to release certain offenders after admonition.

When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Section 4 Power of court to release certain offenders on probation of good conduct.

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.

Section 5-Power of court to require released offenders to pay compensation and costs.

(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay--

(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and

(b) such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section(1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.

25. It is rightly contended by the learned counsel for the appellant that the effect, relevance and applicability of Section 360 Cr.P.C. have not been considered by the trial court.

26. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?

27. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:

"While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."

28. Coming to the sentence to be imposed on the appellant, since the incident occurred near about 19 years ago and during intervening period he had not indulged 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.

29. In the present appeal fine of Rs.1,000/- has been imposed by the trial court 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 as well as considering the submission of learned counsel for appellant as earlier, this Court is of the view that benefit of Section 4 of the Probation of First Offender Act, 1958 should be provided to the appellants. Thus the appeal is partly allowed. The conviction as directed by trial court is confirmed under Section 308 IPC and is directed to be released on probation under Section 4 of the U.P. Probation of First Offenders Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs.40,000/- before the Court.

30. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C., I am of the view that compensation should be awarded to the injured Ram Prasad Sharma.

31. Therefore, fine of Rs.1,000/- is enhanced to Rs.10,000/-, which shall be deposited before the court below and the same shall be paid to injured Ram Prasad Sharma if he is alive. In case of death, same shall be payable to his legal heirs. If the appellant fails to pay alleged amount then, he shall undergo imprisonment and sentence as directed by they trial court. Fifteen days time is granted to appellant to deposit the fine as mentioned by this Court. The appellant is on bail. He need not to surrender.

32. Fifteen days is provided to the appellant to deposit fine amount from the date of production of a certified copy of this order.

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

34. Office is directed to communicate this order to the trial court concerned. The trial court record be sent back.

Order Date :- 17.01.2023

Virendra