Ramjan vs State Of U.P.
2023 Latest Caselaw 2475 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved on 12.1.2023
 
Delivered on   24.1.2023 
 
Court No. 14
 
Case :- CRIMINAL APPEAL No. - 481 of 1996
 
Appellant :- Ramjan and others
 
Respondent :- State of U.P.
 
Counsel for Appellant - B.D. Misra,Arti Ganguly,Hemant Kumar Mishra,L.C.Tyagi,Om Chandra Sahu,Pawan Kumar Yadav,Pradeep Kumar Srivastava,Praveen Singh,R.K. Singh,Vijai Vikram
 
Counsel for Respondent - Govt.    Advocate
 
with
 
Case :- CRIMINAL APPEAL No. - 543 of 1996
 
Appellant :- Chhota and Another
 
Respondent :- State of U.P.
 
Counsel for Appellant - B.D.Misra,L.C.Tyagi,Narendra Gupta
 
Counsel for Respondent - Govt.  Advocate
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. Heard Sri Hemant Kumar Mishra, learned counsel for the appellant no. 1- Ramjan, Sri Om Chandra Sahu, learned counsel for the appellant no. 2- Sultan, learned counsel for the appellant for appellant- Chhota and Thakuri and Sri Arvind Kumar Tripathi, learned A.G.A. as well as perused the record.

2. Since appellants of the both the appeals have been convicted by a common judgment, therefore, both the appeals are being decided by a common judgment.

3. The present appeals have been preferred against the judgment and order dated 24.10.1996 passed by the IVth Additional District and Sessions Judge, Hardoi in S.T. No. 401 of 1992 arising out of crime no. 188 of 1990, Police Station- Atrauli, District- Hardoi by which the appellants-Ramjan, Chhota, Sultan, Ghishu and Thakuri were convicted. Appellants Ramjan and Sultan were convicted and sentenced under Section 148 I.P.C. for two years rigorous imprisonment and fine of Rs. 500/- each and in default of payment of fine one month additional imprisonment and under Section 307 I.P.C. for four years rigorous imprisonment and fine of Rs. 1,000/- each and in default of payment of fine two months additional imprisonment. Appellants- Chhota, Ghishu and Thakuri were conviction under Section 147 I.P.C. for one year rigorous imprisonment and under Section 307/149 I.P.C. for four years rigorous imprisonment and fine of Rs. 1,000/- each and in default of payment of fine two months additional imprisonment.

4. The brief facts of the present case emerges as such F.I.R. of the alleged incident has been lodged by Krishna Kumar Singh with allegation that on 20.9.1990 at 8:00 p.m. after seeing the agricultural form, the first informant along with Udaibhan Singh, Shiv Shankar Tiwari and Putanna Singh were returning and when they reached near tube-well and lit the torch, then they saw appellants- Ramjan, Chota, Sultan, Ghishu and Thakuri on the way. Due to previous enmity the appellant- Ramjan inflicted injuries by 'kanta' upon the complainant and due to this the complainant got deep muscle injury on his left cheek. Appellant- Sultan opened fire by the country made pistol but no one got any gun shot injury. Thus, the appellants only attempted to murder of the first informant. F.I.R. of the alleged incident was lodged by means of the written report (Ext. Ka-1). The scriber of the written report was Udaibhan Singh. On the basis of the written report, the F.I.R. was lodged in Police Station- Atrauli, District- Hardoi against the appellants under Section 147, 148, 149, 307, 324 I.P.C. on 21.9.1990 at 11:15.

5. Due to misconception that the place of incident is Police Station-Mall, Luknow, therefore, initially the case was registered as Nil/1990 but later it was registered as case crime no. 188/1990 P.S.-Atrauli, Lucknow on 28.9.1990 by G.D. report no. 7 at 7:20 as Ext. Ka-4 and the investigation was entrusted to S.I. Parmanand during the course of investigation.

6. The Investigating Officer recorded the statement of the complainant and other witnesses and prepared the site plan. After collecting the injury report, other papers and also completing all the formalities of the investigation, the Investigating Officer filed charge sheet under Section 147, 148, 149, 307, 324 I.P.C. against the appellants. The charge-sheet was filed before the Magistrate court and from the court of Magistrate court the case was committed to the court of sessions where, it was transferred to Additional Sessions Judge, Court No. 4 for trial. The charges were framed against the appellants- Ramjan, Chhota, Sultan, Ghishu and Thakuri under Section Section 147, 148, 149, 307, 324 I.P.C. on 21.9.1993. The charges were read over to the appellants to which they denied all the allegations levelled against them. The appellants claimed to be tried.

7. In this case only P.W.-1 injured- Krishna Kumar Singh was examined by the trial court. All the relevant papers and other papers of prosecution were admitted under Section 294 Cr.P.C. In this case, the injured is complainant-Krishna Kumar Singh. So it is inevitable to reproduce the injury report of the injured-Krishan Kumar Singh, which has been duly admitted by the learned counsel for the appellants during trial. The injury report was admitted as Ext.- Ka-5. The injury of Krishna Kumar was examined on 21.9.1990 at 3:30 p.m. and after endorsing the mark of identification, following injury was found on the body of Krishna Kumar Singh;

(i) incised wound 6 c.m.x o.5 c.m. in diameter muscle deep spindle shaped. Bleeding on touch margin clear, everted on the left side cheek. The doctor opined that the injury caused by some sharp edged weapon and one day old and simple in nature.

8. Since all prosecution paper has been admitted by the defence counsel. Written report of the injured- Krishna Kumar Singh was examined as Ext. Ka-1, Chik F.I.R. as Ext. Ka-2, G.D. report as Ext. Ka-3, G.D. report no. 7 at 7:20, P.S.- Atrauli as Ext. Ka-4, injury report as Ext. Ka-5 and site plan as Ext. Ka-6 and charge sheet as Ext. Ka-7. Thus, the prosecution relies upon the oral evidence of the P.W.-1-Krishna Kumar Singh and also relied upon as Ext. Ka-1 to as Ext. Ka-8 as documentary evidence.

9. In order to prove his case, P.W. 1 was examined before the Court, who is injured/complainant and also sole witness of the incident. P.W-1 has been examined before the court on 22.10.1999 in chief and he supported the entire version of the prosecution and he also proved the written report as as Ext. Ka-1. In his cross examination, he stated that at the time of lodging of the F.I.R. due to injury he was not able to speak, therefore, written report was scribed by eyewitness- Udaibhan, who was present along with the P.W.-1, Krishna Kumar Singh, at time of alleged incident. In his cross examination he stated that his injury was examined in PHC Mall and during treatment bandage was applied but he was not able to specify whether the medical report was prepared by the doctor or not. However, for better treatment and further management he was referred to the Lucknow Medical College.

10. After recording the testimony of the witnesses, the statements of the accused/appellants were also recorded under Section 313 Cr.P.C. by the trial court explaining the entire evidence and other incriminating circumstances against the appellants. In the statement recorded under Section 313 Cr.P.C. , the appellants denied the entire prosecution story in toto. They stated that they have falsely been implicated in the present case due to party bandi. But they did not choose to lead any defence evidence.

11. After hearing learned counsel for both the parties and appreciating the oral and documentary evidence available on record, the learned trial court convicted the accused/appellants as aforesaid. Therefore, these two appeal has been filed by the appellants. It is reported that appellant no. 3- Ghishu of Criminal Appeal No. 481 of 1996, is reported to be no more during pendency of appeal, therefore, the the appeal is abated qua him. in Criminal Appeal No. 481 of 1996, the appellant nos. 1 and 2, namely, Ramzan and Sultan and in Criminal Appeal No. 543 of 1996, the appellant no. 1, namely Chota are represented by their respective counsel. The appellant no. 2- Thakuri in Criminal Appeal No. 543 of 1996 is absconding but in the interest of justice the appeal is being heard and decided on behalf of appellant no. 2- Thakuri also.

12. Learned counsel for the appellants submitted that alleged incident was take place on 20.9.1990 at 8:00 p.m. and F.I.R. was lodged on 21.9.1990 at 11:15 . Thus, the F.I.R. was lodged with one day's delay but there is no plausible explanation of delay. It has also been submitted that as per injury report Ext. Ka-5 one incised wound was found on the cheek of the injured- P.W.-1. In the injury report doctor also opined that the injury caused by sharp edge weapon and is simple in nature. Thus, the session court without appreciation the medical report and other facts of the case, convicted the appellants under Section 307 I.P.C. He further submitted that oral evidence is contrary to the medical evidence. He further submitted that after considering the single injury report of P.W.-1, offence does not travel beyond the purview of Section 324 I.P.C., as the injury inflicted to the injured was not fatal. Thus, the conviction of appellants under Section 307 /149 is liable to be quashed.

13. Lastly, learned counsel for the appellants submitted that there are sufficient reasons to challenge the judgement on merit and the matter is pertaining to the year 1990 and 33 years has already passed. The appellant-Ramjan is aged about about 80 years and suffering from several ailments. Appellants-Sultan and Chota are aged about 58 years. As the appellant- Thakuri is absconding but he is also senior citizen. Learned counsel for the appellants submitted that during trial the appellants were in incarceration for about one month and after conclusion of the trial all the appellants remained in jail for about one month, therefore, the appellants prayed for probation but learned trial court failed to consider the probation. Thus, learned counsel for the appellant submitted that at this juncture benefit of probation be given to the appellants.

14. Learned A.G.A. vehemently opposed and submitted before the Court that the prosecution is fully able to prove the charges against the appellants. The P.W.-1- Krishna Kumar Singh has fully supported the version of the prosecution and there is no material contradiction in the statement of the P.W.-1, therefore, learned trial court after appreciating the evidence available on record rightly convicted the appellants under Section 307/149 I.P.C.

15. Since learned counsel for the appellants restricted his arguments to grant benefit of probation, therefore, in these circumstances, It would be appropriate to quote Section 360 Cr.P.C., 361 Cr.PC. 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.

16. 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?

17. 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."

18. Coming to the sentence to be imposed on the appellants, since the incident occurred near about 33 years ago and during intervening period The appellants have 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 and on the perusal of the record, it appears that the injury caused to the injured was simple in nature and the same is not dangerous to life. Therefore, I am of the considered opinion that no offence under Section 307 I.P.C. is made out against the appellants and therefore, learned trial court has wrongly convicted the appellants under Section 307 I.P.C., therefore, conviction of the appellants under Section 307 I.P.C. is not sustainable. As the injury is simple in nature and is not life threatening, therefore, only offence 324 I.P.C. is made out against the appellants and maximum sentence under Section 324 I.P.C. has been provided for three years. Thus, after appreciating the evidence available on record, this Court has considered the view that learned trial court wrongly convicted the appellants under Sections 307/149 I.P.C. Thus, the conviction under Section 307/149 I.P.C. is alter under Section 324/149 I.P.C. and considering the entire facts and circumstances, appellants deserve for probation.

19. In the present appeal fine of Rs.1,000/- has been imposed by the trial court on the appellant. Section 357 Cr.P.C. and Section 5 of the Offenders Act 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.

20. Thus the appeal is partly allowed. The conviction as directed by trial court is confirmed under Sections under Section 147, 148, 149, 324 I.P.C. and is directed to be released on probation and under section 4 of the U.P. of the Probation of Offenders Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond of Rs.10,000/- and two sureties of the like amount before the Court.

21. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C. and Section 5 of the Probation of the Offenders Act, 1958, I am of the view that compensation should be awarded to the injured -Krishna Kumar Singh.

22. Therefore, fine of Rs.1,000/- to each appellants- Ramjan, Sultan, Chhota, and Thakuri is enhanced to Rs.5,000/-, each. Thus, Rs. 20,000/- shall be deposited by the appellants. It is also directed that as the appellant- Thakuri is absconding, therefore, learned trial court is also directed to recover the amount of Rs. 5,000/- from Thakuri also. Out of Rs. 20,000/-, Rs. 16,000/- shall be provided to injured -Krishna Kumar Singh, if he is alive. Remaining Rs. 4,000/- shall be deposited before the Court as fine. In case of death of the complainant, same shall be payable to his legal heirs. If the appellants fail to pay alleged amount then, they shall undergo simple imprisonment of one year.

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

24. Thus, the appeals are dismissed on the point of conviction and partly allowed on the point of sentence.

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

Order Date :- 24.1.2023

Anuj Singh