Babu Ram vs State of U.P.

Ashwani Kumar Singh, J.—This appeal under Section 374(2) Cr.P.C. has been preferred by appellants namely Babu Ram and Siya Ram sons of Sumpati against the judgment and order dated 8.12.2003 passed by learned Special Additional Sessions Judge(E.C. Act), Faizabad convicting and sentencing the appellants under Section 323/34 I.P.C. for a period of two months'' R.I., under Section 325/34 I.P.C. for a period of two years'' R.I. with a fine of rupees five hundred each and in default of payment of fine, further one month''s imprisonment.

Briefly stated, the facts of the prosecution case is that the accused appellants had surrounded the house of complainant P.W. 1 Akhilesh Kumar Verma on 7.3.1994 at about 7.00 p.m. He was alone and his father had gone to market and when his father returned, he asked them not to quarrel. The complainant and his father went to lodge the report of this incident and when they reached ahead of ''Pandey Pakauli'', accused persons appeared and started assaulting with ''lathi'' and ''danda'' with intention to kill his father Ram Kewal Verma. On alarm being raised, Bhagwandeen, Ram Achal and other persons reached at the spot and in the light of torch, they recognized the accused persons who fled away abusing and threatening. Complainant''s father received serious injuries on the head and other parts of the body. It is also stated in the F.I.R. that there was some litigation with the accused persons with regard to land and accused persons were cutting ''Neem'' tree on 7.3.1994 which was on the disputed land. The complainant had objected to it. Thus, the accused persons were inimical.

The written report(Ext. Ka-1) was given at police station. The investigation was conducted and the charge-sheet(Ext. Ka-5) was filed under Sections 307, 323, 325, 504 and 506 I.P.C.

The case was committed to the court of Sessions. Charges were framed under Section 307/34 and 325/34 I.P.C. Accused denied their charges and claimed trial.

Prosecution, in order to prove its case, examined P.W. 1 Akhilesh Kumar, P.W. 2 injured Ram Kewal, P.W. 3 Ram Achal as witnesses of the fact. P.W. 4 S.I. Gayasuddin Investigating Officer as formal witness, P.W. 5 Dr. Ajay Kumar Srivastava and P.W. 6 Dinesh Kumar Pharmacist who medically examined the injured Ram Kewal.

P.W. 1, P.W. 2 and P.W. 3 supported the prosecution case. P.W. 5 Dr. Ajay Kumar Srivastava x-rayed the injuries of Ram Kewal Verma on 9.3.94 and found third, fourth and fifth metacarpal bone of right hand fractured. He also found second, third, fourth and fifth metacarpal bone of left hand fractured. Tibia and Fibula bone were also fractured of the left leg. This witness proved his report(Ext. Ka-8) and x-ray plate(Ext. 1 to 4).

P.W. 6 Dinesh Kumar Pharmacist proved the handwriting of the Doctor Rajendra Singh and medical report(Ext. Ka-9). Injured Ram Kewal was medically examined by Dr. Rajendra Singh on 7.3.1994 at 11.10 p.m. at Primary Health Centra, Maya Bazar district Faizabad. He found as many as eight injuries on his person and advised injury nos. 3, 4, 5 and 6 for x-ray. The injuries were caused by blunt object and were fresh and simple.

P.W. 4 S.I. Gayasuddin proved the site plan(Ext. Ka-3), Fard, torch and ''supurdgi(Ext. Ka-2), blood stain and plain earth(Ext. Ka-4). He also proved charge-sheet(Ext Ka-5), G.D. (Kayami Mukadma) dated 7.3.1994 and chick F.I.R. (Ext. Ka-6-7) respectively.

Statement of the accused under Section 313 Cr.P.C. of the accused was recorded who denied the allegation and stated that since civil litigation was going on between the parties as such, they have falsely been implicated. Injured Ram Kewal was beaten somewhere in dark as he had enmity with other people of village.

Accused persons did not produce any evidence in defence.

Heard learned counsel for the appellants and learned State counsel.

The scrutiny of the evidence as well as discussions made by the learned trial Court suggest that the learned trial Court has analyzed the evidence and reached to the correct conclusion that evidence recorded makes out a case under Sections 323/34 and 325/34 I.P.C.

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 and compensation may be awarded to the injured. It has also been submitted that appellants are neither habitual offender nor previous convict, as such, a lenient view may be taken.

I have considered the arguments advanced by the learned counsel for accused appellants in the light of the nature of offence. Both, the learned counsel for appellants as well as learned A.G.A. agreed to the fact that the learned Additional Sessions Judge has rightly awarded the sentence of imprisonment but has not awarded any amount of compensation to the injured. Learned Additional Sessions Judge has not committed any error on point of law. He has awarded the punishment of imprisonment and fine in a traditional manner. Learned Additional Sessions Judge should have exhibited himself to be an activist Judge who takes care of all the persons involved in a litigation and pass order in such a fashion and, in such a way, that justice should appear to have been done between the parties. The rights of the victims should not be ignored. The unfortunate injured must be made to feel that the Court and accused have taken care of him. Any such measure which would give him succor is far better than a sentence by deterrence.

Learned counsel for the appellants, in support of his contention, has placed reliance on the decision in Hari Kishan Vs. Sukhbir Singh and Others, wherein Hon''ble the Supreme Court has held that power of imposing fine is 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 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, Hon''ble the Supreme Court has referred to 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. In K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, , 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 view of the law, as discussed above, and in view of the facts and circumstances of the case, which dates back to the year 1994, I find that the ends of justice would successfully meet if the accused appellants are awarded punishment already undergone by them and they may be imposed the sentence to pay a fine of rupees 5000/- each. The accused appellants shall pay fine within sixty days from the date of receipt of record by the learned trial Court, which, shall, in turn, pay the amount, so deposited, as compensation to the injured person, without delay.. In case of any casualty to the injured, his heir will get the amount of his share. In the event of default in payment of fine, the defaulting accused shall have to undergo imprisonment for six months. The amount of fine shall include the amount already sentenced by the learned trial Court. Amount, if any deposited earlier in this regard before the learned trial Court, shall be adjusted by learned trial Court as directed above.

The Office is directed to send the lower court record along with copy of the judgment to the learned trial court, without delay, so as to ensure that it reaches the learned trial court within ten days from today. With the above observations, the appeal is disposed of, in such a fashion that it is partly allowed. The conviction is confirmed but the sentence is modified to the extent, as stated above.