Ajay Gupta and Others vs State and Others

J.P. Singh, J.—Appellant-Suresh Kumaii (hereinafter to be referred to as 'accused') along with his three co-accused namely Smt. Tripta

Devi, Ms. Jyoti Bala and Ms. Sunita were charged under Sections 307/34, Ranbir Penal Code. He was separately charged for the offence

punishable under Sections 4/25B, Arms Act. Vide impugned judgment of learned Sessions Judge, Kathua, he stands convicted for the aforesaid

charges. Record reveals that Mst. Tripta Devi died during the trial and the other two ladies accused stand acquitted. Admitted position is that the

State has not preferred any appeal against the acquittal earned by them.

Suresh Kumar has been sentenced to undergo rigorous imprisonment for four years and a fine of Rs. 5,000/- for the offence punishable u/s 307,

R.P.C., in default thereof to further undergo simple imprisonment for six months; sentenced to undergo rigorous imprisonment for one year and a

fine of Rs. 1,000/- for the offence punishable under Sections 4/25, Arms Act and in default of paying of fine to further undergo simple

imprisonment for two months. Both the sentences have been ordered to run concurrently.

Aggrieved by the judgment of conviction and sentence, the accused has preferred the instant appeal.

The case of the prosecution can be put, thus:

The date of occurrence is 3-10-1992. Time is 12.15 p.m. P.W. Madhu Soodan is the injured in this case. He unfolds that on 3-10-1992 at

about 12.15 p.m., he was proceeding towards Arvan crossing and after crossing the shop of the accused, when he reached near the office of

Notified Area Committee, the accused who was armed with sword and the other three co-accused (since acquitted) attacked on him. The three

ladies caught hold of him and the accused gave him a sword blow on his head and shoulder, resultantly he fell down. He was removed to hospital

at Parole, wherefrom referred to Jammu and then the Post-Gradu-ate Institute, Chandigarh (PGI) where he remained admitted from 4-10-1992 to

13-10-1992. On his statement the present case was registered. The accused was allegedly arrested on 7-10-1992 and pursuant to his disclosure

statement, the weapon of offence (the sword) was got recovered. Statements of other witnesses, who happened to be on the spot were also

recorded u/s 161, Cr. P.C. and after completion of the investigation the challan was presented against the accused in terms of Section 173, Cr.

P.C, then charged for the offence indicated herein-above.

In order to substantiate the charge, the prosecution examined Mahdu Soodan injured witness (complainant), Kushal Singh, Shiv Raj Singh,

Rattan Singh, Rakesh Singh, Des Raj, Rasal Chand, Dr. Bhanu Pathania, Bodh Raj, Madan Lal and Amir Chand Padha.

The case set up by the accused as emerges from the statement recorded u/s 342, Cr. P.C. is of total denial. He also examined one Nath Ram in

defence. After appreciating the entire evidence, he now stands convicted and sentenced as indicated hereinabove.

I have heard Mr. Sunil Sethi, learned Counsel appearing for the appellant and Mr. Vinok Bakshi, learned Dy. Advocate General, representing

the State. With their assistance, I have gone through the records very carefully.

Mr. Sethi at the very outset fairly submits that he does not join the issue with regard to the merits of the case on all aspects except asking for

acquittal with regard to 307, R.P.C., contending that the conviction of the accused for the said charge is not sustainable inasmuch as the

prosecution has not been able to prove that the main injury (head injury) on the person of Madhu Soodan was sufficient in the ordinary course of

nature to cause death, but for timely aid. According to Mr. Sethi, the prosecution has withheld the material medical evidence in this regard and,

therefore, the main offence would not technically fall within the mischief of Section 307, R.P.C. In this regard, he has drawn the attention to main

medical evidence on record, which is as under:

As per the initial medical legal report prepared by Dr. Bhanu Pathania of PS Parole, he noticed one incised wound on the right parietal region

of head approximately 5"" long, bone deep 1/2 wide. The second injury was also an incised wound on the left shoulder, which was also

approximately 5"" long, 1"" deep, 1"" wide. Initially the opinion about the nature of the injury was reserved. Subsequently on 6-11-1992, aforesaid

Dr. Bhanu Pathania on the basis of the report of one Dr. A. H. Rarnzan, Sr. Resident Neurosurgery of PGI, Chandigarh, gave the opinion that the

injury (head injury) on the person of injured was grievous in nature. Both the injuries were stated to have been caused by a sharp edged weapon.

Mr. Sethi states that before 6-11-1992, the date on which aforesaid Dr. Bhanu Pathania had opined that injury to be grievous in nature,

admittedly, injured was already discharged from PGI, Chandigarh and he, on the basis of complete record available to him, had given the said

opinion. Mr. Sethi then submits that simply that when Dr. Pathania stepped into the witness-box, it was put in his mouth by the Public Prosecutor

to state that injuries Nos. 1 and 2 were sufficient in ordinary course of nature to cause death, that fact, by itself, would not bring the case of the

prosecution within the four corners of Section 307, R.P.C. especially when Dr. A. H. Ramzan of Neurosurgery Department (PGI, Chandigarh)

was not produced by the prosecution to prove the entire treatment provided to the injured. Therefore, according to learned Counsel, the present

case would simply fall down to Section 326, R.P.C. instead of Section 307, R.P.C, the charge for which the accused stands convicted.

Mr. Vinod Bakshi, learned Dy. Advocate General, vehemently opposes Mr. Sethi on this aspect and submits that the weapon used by the

appellant and the seat of injury (head) would be enough to conclude that the conviction recorded u/s 307, R.P.C, is justified and the present case

does not call for diluting the offence.

I find substantial weightage of the arguments advanced by Mr. Sethi vis-a-vis the offence and in my considered view the present case does not

fall within the mischief of Section 307, R.P.C

Admitted position is that the treating doctor (Dr. A. H. Ramzan) who had attended to the patient has not been produced by the prosecution.

He, in my view, was the best witness to depict the medical condition of the injured. I have seen the proceedings of the learned trial Court. In

March, 1998, a report came that Dr. A. H. Ramzan had left the hospital. In July, 1998, the address was given that he had shifted to SKIMS,

Srinagar. Thereafter about 6-7 opportunities were given to the prosecution, but to no effect. Ultimately, the prosecution evidence was closed by

the order of the Court. Certainly, the fault does not lie with the accused at all. Fairly, more than reasonable time was afforded to the prosecution to

produce the said witness. The matter does not rest here. For my satisfaction. I have, otherwise, seen the report of Dr. Ramzan (although not

proved) and in the said report he has declared the head injury as grievous in nature. The opinion of Dr. Bhanu Pathania subsequently given on the

basis of entire treatment given by the treating doctor (Dr. A.H. Ramzan) is that the injury (head injury) was grievous in nature. From this, it can

comfortably be inferred that the medical evidence till filing of the challan was reflecting the head injury to be 'grievous in nature.' No doubt in his

examination-in-chief, Dr. Bhanu Pathania, had stated that injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature, but

the fact remains that this witness was not the treating doctor of the injured. Surprisingly, this witness also says' that the injury No. 2 was also

sufficient to cause death, whereas this injury was simple in nature caused by a sharp edged weapon, that too on non-vital part of the body. This

indicates that it was put in his mouth from the side of the State for the first time when he appeared before the trial Judge to state in the aforesaid

terms so as to bring the case of the prosecution within the purview of Section 307, R.P.C, 1 am not inclined to give any weightage to the said

statement, in the absence of best medical evidence withheld by the prosecution.

The net result is that the main injury for which the accused is charged and convicted u/s 307, R.P.C. would dilute to Section 326, R.P.C. only.

1, consequently, alter the conviction from the said charge and instead convict him u/s 326, R.P.C.

Mr. Sethi now pleads mercy with regard to the quantum of sentence submitting that the present occurrence is of year 1992. The accused faced

the trial for long eight years. No doubt, after suffering conviction, he was granted the concession of suspension of substantive sentence, but by now

the total time elapsed between the time of occurrence till date is about fifteen years. It can be termed as protracted trial. Praying for sympathetic

tilt, Mr. Sethi then submits that at the time of occurrence the appellant was 33 years of age. To his ill-luck, he lost his wife few years back and his

entire family is dependent on him. He has to look after his children and old parents, who are also dependent upon him. The mitigating circumstance

in favour of the accused is that after being released on bail by this Court, he has not misused the concession of bail. He, otherwise, has not been

booked in any other criminal case, which would reflect his antecedents adversely. Mr. Sethi then submits that the appellant has already undergone

substantive sentence of about one month, which includes the period he remained in custody as an under trial prisoner and sending him to jail once

again at this stage would certainly have adverse effect on his family set up.

Mr. Sethi, on the same set of circumstances, prays for reduction in the sentence with regard to the conviction recorded under Sections 4/25,

Arms Act, submitting that for adequate and special reasons the minimum sentence of imprisonment (one year) can also be reduced.

On the basis of aforesaid mitigating circumstances, Mr. Sethi prays for a concessional tilt with regard to the reduction in sentence, which is

again opposed by Mr. Bakshi, the learned State counsel.

I find substance in the submissions advanced by Mr. Sethi on this count also.

The purpose of criminal justice is to bring peace, discipline and harmony in the society. An opportunity has also to be given to an erring

individual to reform himself. Their Lordships in Karamjit Singh Vs. State (Delhi Admn.), , have observed as under:

Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to

realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and

repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a

criminal case, the Court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the

matter of punishment in the case. An act of balancing is, what is needed in such case a balance between the interest of the individual and the

concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same

time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined within

the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful

member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence,

in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and toward society at large. Such a

situation, has to be avoided again within the permissible limits of law.

No doubt, the deterrent fact of sentence starts paling down with efflux of time and the theory of reformation of the accused is also to be kept in

mind by the Court, but the sufferings of the complainant injured has to be weighed equally and he can be compensated suitably. In Hari Kishan Vs.

Sukhbir Singh and Others, . Their Lordships, while dealing with the provisions of compensation as envisaged in the Code of Criminal Procedure,

observed, thus:

...It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award

compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by

way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not

ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not

forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is,

to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all

Courts to exercise this power liberally so as to meet the ends of justice in a bettery way.

Keeping in view the entirety of facts and circumstances especially certain mitigating circumstances as projected by Mr. Sethi, ends of justice

would be adequately met, if the substantive sentence awarded to the accused on both the counts is reduced to the period already undergone.

Ordered accordingly.

While altering substantive sentence, it is made clear that the sentence of fine as already imposed shall remain intact. Over and above, injured

Madhu Soodan is awarded compensation to the tune of Rs. 30,000/- to be paid by the accused and clear forty five (45) days' time is granted to

him for depositing the same before the Chief Judicial Magistrate concerned, who, after issuance of notice to the injured, shall disburse the aforesaid

amount to him. It is also made clear that the default in depositing the said amount within the stipulated period, would disentitle the accused to the

relief granted to him in the aforesaid terms and in that eventuality he shall have to undergo the entire substantive sentence as already awarded by

the learned trial Court.

The net result is that the instant appeal is partly allowed in the terms of altering the main offence and also modifying the sentence part.

Mr. Sethi states that he has conveyed the order to the appellant, who is also present in the Court.