Amirul Hasan and others vs State of U.P.

Saeed-Uz-Zaman Siddiqi, J.—Accused-appellants Amirul Hasan, Ahmad Hasan and Gaus Mohammad have preferred this appeal against the Judgment and order dated 12.9.2003 passed by VIIIth Additional Sessions Judge, Faizabad in Sessions Trial No. 676 of 1998, by which each of the appellants were convicted for the offence punishable u/s 324, I.P.C. and sentenced to undergo two years rigorous imprisonment and a fine of Rs. 1,000 each; for the offence punishable u/s 323. I.P.C. and sentenced to undergo rigorous imprisonment for six months and Rs. 500 each as fine. During the course of appeal, appellant No. 1, Amirul Hasan died and report to this effect has been received. The Chief Judicial Magistrate, Faizabad has reported that the accused-appellant, Amirul Hasan had died on 9.8.2006.

Brief facts of the case are that, one Sadullah lodged F.I.R. on 21.11.1995 at 7.00 a.m. to the effect that he alongwith his father Ibadullah, brother Shamsuddin son Abdul Kadir were ploughing their agricultural plot No. 626 which was purchased through sale deed dated 8.9.1995. Accused Amirul Hasan armed with knife, accused Gaus Mohammad and Ahmad Hasan armed with lathi and hockey reached there, abused them and directed the complainant party not to plough the field otherwise they will be killed. In the meanwhile, accused-appellants caused hurt with knife, hockey and lathi. The F.I.R. to this effect was lodged at Police Station Akbarpur at 8.45 a.m. and the case was registered under crime No. 482/1995 under Sections 323/324/504/506, I.P.C. The injured were got examined medically. After investigation, the charge-sheet was submitted for the offence punishable u/s 323/324/308, I.P.C.

After taking of the cognizance, the learned First Additional Chief Judicial Magistrate committed the accused to the court of Sessions for trial, vide committal order dated 20.11.1998.

The learned Sessions Court framed charges against the accused for the offence punishable u/s 308/34, 323/34, 504 and 506 (2), I.P.C., to which the accused denied and claimed trial. The prosecution examined the complainant Sadullah as P.W. 1, Abdul Kadir as P.W. 2, Shamsuddin as P.W. 3, Constable Rajkesh as P.W. 5, Investigating Officer C.L. Sharma as P.W. 6 and Dr. B.K. Lal as P.W. 5. The defence did not lead any evidence.

As per medical examination report, 5 lacerated wounds were found on the body of Sadullah, one lacerated wound was found on the body of Ibadullah and two contusions were found on the body of Shamsuddin.

During the course of trial, one lacerated wound and 5 contusions were proved by Dr. B.K. Lal, P.W. 5 on the body of accused Ahmad Hasan and one lacerated wound and two abrasions were found on the body of accused Amirul Hasan. Learned Additional Sessions Judge discussed the evidence, in detail, in the light of the statement of medical expert Dr. B.K. Lal, P.W. 5 and reached to the conclusion that prosecution has got success in proving the guilt against the accused-appellants. He has further observed that the accused persons were bound to explain that two of them have suffered injuries in the accident as alleged by the prosecution.

I have heard learned counsel for the appellants as well as learned A.G.A. and have gone through the records.

During the course of hearing, learned counsel for the appellants conceded that the learned Additional Sessions Judge has correctly convicted the accused-appellants, but submitted that the punishment of imprisonment may be reduced to the period already undergone by the accused-appellants and, in lieu of it, the appellants may be awarded enhanced punishment of fine.

Learned Additional Sessions Judge has not committed error on the point of fact or on the point of law in holding guilt of the accused-appellants. The learned trial court has put in labour and has differentiated the offence punishable u/s 323/324, I.P.C. with that of offence punishable u/s 308, I.P.C. Learned trial court has correctly reached to the conclusion that the ingredients of offence punishable u/s 308, I.P.C. are not borne out of the evidence and, as such, the conviction has been made for the offence punishable u/s 323/324, I.P.C. No interference is called for.

Learned Additional Sessions Judge has correctly awarded the punishment of imprisonment as well as punishment of fine. However, learned Additional Sessions Judge has overlooked the law laid down by the Hon''ble Apex Court in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, , in which it was held that while fixing the quantum of compensation, the Magistrate should consider what would be the reasonable amount of compensation payable to the complainant. In Hari Kishan Vs. Sukhbir Singh and Others, , the Hon''ble Supreme Court has held that power of imposing fine 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 as reconciling the victim with the offender. It is to some extent a constructive approach to crime and a step forward in a criminal justice system. It is because of this that it was recommended that all criminal courts should exercise this power liberally so as to meet the ends of justice, by cautioning that the amount of compensation to be awarded must be reasonable. While holding this the Hon''ble Supreme Court has referred its earlier decision in Sarup Singh Vs. State of Haryana represented by the Home Secretary, . The Court further emphasized that the amount of compensation was enhanced taking into consideration the gravity of the injury, the strata to which the accused belongs, the milieu in which the crime has taken place and further keeping in view the cry of the society for the victims at large.

Keeping in view the law laid down by the Hon''ble Apex Court, this Court is to remind learned Additional Sessions Judge has imposed a meagre fine of Rs. 1,000 + Rs. 500 = Rs. 1,500 each, but has not directed that any amount of fine so deposited should be paid to the victims as compensation. In this case, three persons sustained injuries; though none of them received any grievous injury. But, after all they are victims, who have activated the criminal justice system by lodging F.I.R. and moving the wheels of justice into action, none of them can be thrown away as a forgotten person.

The occurrence took place in the year 1995, the trial was concluded on 12.9.2003 and, this appeal is being taken up by this Court in the year 2012. Seventeen years have elapsed. During this period the trend of the society has taken a vertical change.

People, by and large, are rapidly loosing confidence in the criminal judicial system; victims feel ignored and are crying for attention for justice and; there is a demand that the system must focus on justice to victims, as well. A traditional Judicial system must take note of the pulse of the society at large. Courts are parts of the society and cannot overlook the will of the people; underneath there is a feeling which advocates replacement of the vertical criminal judicial system by a "horizontal line of Justice" where the punishment system is sought to be substituted by a system which gives a central role for the victims.

A practical aspect of the matter is that though maintenance of law and order is a State subject, yet the victim is a complainant who activates the machinery of the Criminal justice system by bringing evidence and information about illegal acts to the attention of the authorities. If the police activates in actual operation, as required by law of the land, the victim then plays an additional role as a witness for the prosecution and helping the State to secure a conviction.

Since crime is conceptuated as an event that threatened and offended the entire community, and was prosecuted by the State on behalf of the people, the actual victim is treated like just another piece of evidence, a mere exhibit to be discarded after the trial. The time is over-ripe to redress, restore and readjust the injustice and imbalance to the crime victims by the Judges, the prosecutors and probation officers etc. Every instrument of State machinery, in general and Judges in particular, should ensure explicit standards of fair treatment to protect the interests of victims and witnesses. The victims ought to receive reimbursement from one source or the other.

The penal philosophy in India is derived from the British model which is based upon concepts of prevention of crime and treatment and rehabilitation of criminals. Victims who suffer injustice silently, have no rights, and, in extreme cases, depend upon the mercy of police officers.

The courts have to draw a silver lining between offenders and offended (victims) through affirmative action; and take a lead to compensate and reimburse the victims under the existing provisions of the Penal Code contained in Chapter-III, Section 357 of the Code of Criminal Procedure, 1973 and other Special Statutes where provision of imposition of fine is prescribed pending draft of ''Victims Assistance Bill'' to become statute prepared by Justice V.R. Krishna Iyer under National Human Rights Commission, with a view that no citizen should feel ignored by applying psycho-social coping model'', the dynamic component of which should be (i) prevention; (ii) action; and (iii) Reappraisal with a will to eliminate and reduce stress in the society, at large.

The Courts should take note of the fact that the Parliament has amended Section 372 of the Code of Criminal Procedure so as to entitle a complainant in a criminal case to file appeal in case the accused gets acquittal or gets lesser punishment or impose inadequate compensation, so as to indulge the victim in the process of justice.

Victims have a valid interest in prosecution of the case and should be involved at all stages of the proceedings. Talking, day in and day out, about interest of the accused, and neglecting the victims, is resulting in hostility of victims and ultimately acquittal, which is eroding the majesty of law and justice.

Current situation of criminal justice deserve to cope with international standards so as to cement the fact that Judges, by and large, are sympathetic and not alien to victims. It will reflect transparency and honesty in the corridors of Justice. As early as in 1983, the Apex Court has recognised the need of State compensation in cases of abuse of power by State machinery, in Rudul Sah Vs. State of Bihar and Another, , Similarly, in Saheli, A Women''s Resources center, Through Ms Nalini Bhanot and Others Vs. Commissioner of Police Delhi Police Headquarters and Others, , compensation was granted to victim''s mother.

In D.K. Basu Vs. State of West Bengal, , it was held, "To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience."

Under Clause 12 of the U.N. Declaration, the onus is on the State to "endeavour to provide financial compensation to both the victims who have suffered bodily injury or impairment of physical or mental health as a result of serious crimes as well as the family of those who have died as a result of victimization."

Judicial and administrative mechanisms should be established and strengthened, where necessary, to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

Victims deserve to be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, for the harm that they have suffered.

It is a weakness of our jurisprudence that victims of crime and the dependents of the victims do not attract the attention of law, the victims reparation is still the vanishing point of our law. However, the concept of "awarding compensation" has been reiterated by Hon''ble Apex Court in the cases mentioned above. In the case of Sarwan Singh and Others Vs. State of Punjab, , it was held that while awarding compensation, it is necessary for the court to decide whether the case is fit enough to award compensation. If the case is found fit for compensation, then the capacity of the accused to pay the fixed amount has to be determined.

In view of the law as discussed above, and in view of the facts and circumstances of the case, I find that each of the surviving accused-appellants namely Ahmad Hasan and Gaus Mohammad are awarded punishment for imprisonment already undergone by them and each of the accused shall have to deposit Rs. 5,000 as fine within 30 days from the receipt of record before the learned trial court. In default of payment of fine, each of the accused shall have to undergo imprisonment for 6 months.

The appeal is allowed in part. The appeal of accused-appellant No. 1, Amirul Hasan stands abated and the conviction of the remaining two accused-appellants namely Ahmad Hasan and Gaus Mohammad is upheld. But, sentence is modified as stated above.

The office is directed to send the lower court''s record alongwith copy of the judgment to the learned trial court, without delay, so as to ensure that it reaches the learned trial court within June, 2012. With these observations, the appeal is disposed of, in such a fashion that it is partly allowed. The conviction is confirmed but the sentence is modified as stated above.