Rajasthan High Court - Jaipur
Om Prakash vs State Of Rajasthan And Ors on 28 March, 2017
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
BENCH JAIPUR
JUDGMENT
S.B.Criminal Appeal No.773/2013
Amar Lal S/o Shri Nand Lal, by caste Meena, R/o Barana, Police
Station Baran Sadar (Rajasthan)
....Accused-Appellant
Versus
The State of Rajasthan through Public Prosecutor.
with
S.B.Criminal Appeal No.821/2013
Om Prakash son of Shri Laxminarayan, by caste Mahajan, aged 54
years, resident of Barana, Police Station Sadar, Baran, District
Baran (Rajasthan)
....Complainant-Appellant
Versus
1. State of Rajasthan through Public Prosecutor
2. Amar Lal son of Nandlal, by caste Meena, R/o Barana, Police
Station Baran Sadar (Rajasthan)
.....Accused-Respondent
3. Chhotulal son of Surajmal, by caste Meena, R/o Barana,
Police Station Baran Sadar (Rajasthan)
4. Jodhraj son of Ramdayal, by caste Meena, R/o Barana, Police
Station Baran Sadar (Rajasthan)
Date of Judgement ::::: 28.03.2017
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr.Suresh Sahni with Mr.R.M.Sharma, for the accused-appellant.
Mr.R.R.Gurjar,Public Prosecutor for State.
Mr.Satish Kumar Khandelwal, for the complainant.
BY THE COURT:
The accused-appellant-Shri Amar Lal has preferred this Criminal Appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 25.10.2013 passed by the Additional Sessions Judge, Baran in Sessions Case No.260/2011 2 whereby the learned trial Court after holding the appellant guilty for offence under Section 452 IPC sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default thereof to further undergo simple imprisonment for one month, for offence under Section 326 IPC he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for one month, for offence under Section 327 IPC he was ordered to suffer rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for one month and also holding appellant guilty for offence under Section 307 IPC, awarded him rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to suffer simple imprisonment for one month. It was further directed by the trial Court that all the substantive sentences would run concurrently. It is to be noted that trial Court acquitted co- accused-Shri Chhotulal and Jodhraj for the offences for which they were charged. It is further to be noted that complainant/victim Shri Omprakash has filed aforesaid S.B.Criminal Appeal No.821/2013 under proviso to Section 372 Cr.P.C. challenging the acquittal of co-accused and a prayer has also been made by him that adequate amount of compensation may be awarded to him from appellan-Shri Amarlal. With the consent of learned counsel for the parties, the aforesaid appeal filed by the victim-Shri Omprakash to the extent of his claim of 3 compensation from accused-appellant-Shri Amarlal was also heard alongwith the accused's appeal and both the appeals are being decided by this common judgment/order.
Brief relevant facts for the disposal of these appeals are that written report Ex.P3 was submitted by Shri Yogesh Gupta, son of injured Shri Omprakash Gupta, on 21.7.2007 at 3.00 p.m. at Baheti Hospital, Kota where injured-Shri Omprakash Gupta was undergoing his treatment before Assistant Sub-Inspector of Police Shri Nand Singh Police Station Baran Sadar in which it was alleged that on 20.7.2007 at about 6.00 p.m. in the evening when he and his father, mother, brother and sister were sitting inside their house, accused-appellant- Shri Amarlal armed with an axe alongwith acquitted-accused-Shri Jodhraj and Shri Chhotelal suddenly entered into their house and after abusing them appellan-Shri Amarlal said that as a result of a report lodged against them they were forced to incurr an expense of Rs.10,000/- and, therefore, the aforesaid amount is required to be paid to them by the complainant's father and when his father refused to oblige them, the acquitted co-accused-Shri Jodhraj and Shri Chhotelal caught his father and appellant-Shri Amarlal made a blow on his head by axe with intention to cause his death as a result of which his father sustained a grievous injury. It was further alleged in the report that appellant also caused injury to his mother by axe. In the report it was also alleged that as the injury of his father was very serious, he was immediately taken to a doctor who referred him to 4 Kota after observing that the injury is very serious upon which he brought his father to Kota and he was busy in his treatment, therefore, some delay has been caused in lodging the report. On the basis of this written report, FIR No.108/2007 came to be registered at Police Station Sadar, Baran on 21.7.2007 at 10.15 p.m. against the accused-persons for offences under Sections 452, 307, 327 read with Section 34 IPC and investigation commenced. After usual investigation charge-sheet was filed against the appellant and the acquitted accused and in order to prove the charges, prosecution produced oral as well as documentary evidence. Appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and specifically stated that he has falsely been implicated in the case by the reason that there was some dispute between complanant and a contractor. It is to be noted that nature of dispute was not disclosed. In defence as many as four documents were got exhibited. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence made available on record convicted and sentenced the appellant as already stated whereas both the co-accused were acquitted. Learned trial Court did not consider the question to award compensation to the victim for the injury suffered by him.
In support of the appeal, learned counsel for the appellant raised the following grounds:-
(1) The incident is of 20.7.2007 at 6.00 p.m. whereas written report 5 was lodged on 21.7.2007 at 3.00 p.m. at Baheti Hospital, Kota and for the delay so made for lodging the FIR no plausible explanation has been furnished by the prosecution. It is well settled legal position that if FIR for a criminal incident is lodged with a delay without furnishing reasonable and sufficient explanation for the same, the entire incident becomes suspected and accused is entitled to get benefit of doubt. In the present case, the only reason furnished is that the complainant was busy in the medical treatment of his father injured-Shri Omprakash in the hospital but the same cannot be said to be sufficient in view of the fact that several other members of the family were available to lodge the report immediately. The delay further becomes doubtful by the reason that although formal FIR was registered at Police Station Baran Sadar on 21.7.2007 at 10.15 p.m., copy of the FIR was sent to the concerned Magistrate on 23.7.2007 at 11.00 a.m. for which also no explanation has been furnished by the Investigating Officer.
(2) In order to prove the incident no independent witness was produced and only family members of the injured, who are highly interested witnesses, were produced and it was not safe to hold the appellant guilty for such serious offences only on the basis of evidence of such witnesses more particularly in view of the fact that the injury report is also doubtful.
(3) As per the proceedings drawn on the written report Ex.P3, medico legal report of injured-Shri Omprakash and Smt.Sita Bai were 6 got separately prepared i.e. these reports were prepared before FIR was registered but during the course of trial these reports were not produced and deliberately withheld and, therefore, adverse inference must be drawn against prosecution to the effect that if the same were produced during trial, they would have gone against prosecution at least to about nature of injuries found on the body of these injured persons.
(4) As per the written report it is also an admitted fact that soon after the incident injured-Shri Omprakash was taken to a local doctor and looking to his serious condition he referred him to Kota for further treatment which fact shows that the local doctor also prepared prescription and reference letter mentioning the injuries of Shri Omprakash but the prescription and referring letter were also deliberately withheld during trial and, therefore, adverse inference must be drawn against prosecution on this account also to the effect that if these documents would have produced during trial the same would have gone against it regarding nature of injury found. (5) Court statement of injured-PW5-Shri Omprakash cannot be relied in view of his admission that his statement under Section 161 Cr.P.C. was not recorded during investigation whereas according to investigating officer injured-Shri Omprakash was examined and his statement was also recorded.
(6) The incident becomes doubtful by the reason that as per prosecution case only one below with axe was made by the appellant 7 on the head of injuured-Shri Omprakash whereas as per his injury report Ex.P9, which has been prepared by PW1-Dr.Arun Kumar Sharma, two injuries were found on his head and no explanation has been furnished how two injuries were caused by one blow by axe. (7) Injury report Ex.P9 and opinion given by Dr.Arun Kumar Sharma regarding nature of injury No.1 as grievous and dangerous to life becomes further doubtful by the reason that it has not been explained by prosecution on what basis and on whose order Dr.Sharma, who at the relevant time was posted as Medical Jurist at MBS Hospital, Kota, went to Baheti Hospital, Kota, a private hospital, where injured-Shri Omprakash was undergoing treatment and examined him. In absence of such explanation report Ex.P9 and the aforesaid opinion in the form of Ex.P11 is not admissible in evidence more particularly in view of the fact that x-ray report was not available at the time when opinion was given and original surgical and clinical notes prepared by PW15- Dr.Mamraj Agarwal of Baheti Hospital, Kota were not available with Dr.Arun Kumar Sharma.
(8) Although, it is the stand of investigating officer that on the information and at the instance of appellant an axe was recovered by him during investigation but in absence of blood stains and FSL report, it cannot be said that the recovered axe was used by the appellant to inflict injury to injured-Shri Omprakash and his wife- Smt.Sita Bai.
(9) Investigaing Officer PW16-Shri Nand Singh in his examination- 8 in-chief has said that on 24.7.2007 opinion of doctor was taken regarding nature of injury and on 21.7.2007 injured-Shri Omprakash and Smt.Sita Bai were got medically examined by him but he has not further stated that he took Dr.Arun Kumar Sharma from MBS Hospital, Kota to Baheti Hospital, Kota for their examination and in absence thereof also the injury reports prepared by Dr.Sharma and his opinion regarding the nature of injury is not admissible in evidence. (10) Once co-accused were acquitted by the trial Court on the same set of evidence, on the same set of evidence appellant could not have been convicted. The appellant is also entitled to get benefit of doubt. (11) If this appellate Court anyhow confirms the conviction of the appellant, looking to the fact that the appellant has already served four years of imprisonment, the sentence for offence under Section 307 IPC may be reduced to the period of imprisonment already undergone by him.
(12) So far as award of compensation to the injured-Shri Omprakash from appellant is concerned, in absence of proper material and more particularly in absence of paying capacity of appellant, no compensation can be awarded first time in this appeal. Otherwise, this Court may award a reasonable amount looking to the facts and circumstances.
(13) As per the site map and site inspection report Ex.P4 prepared by the investigating officer during the course of investigation, blood stains were found outside the house of complainant-party near a 9 chabutary which shows that appellant did not enter the house of complainant and in fact the alleged incident occured, if at all, outside their house and, therefore, offence under Section 452 IPC is not made out but learned trial Court did not consider this aspect of the matter also in a right perspective.
On the other hand, learned Public Prosecutor supported by learned counsel for the complainant controverting the submissions made on behalf of the appellant submitted that there is ample evidence available on record showing involvement of appellant in the incident and causing injuries to both the injured with an axe and the impugned judgment is not liable to be interfered on the basis of any of the ground raised on behalf of the appellant more particularly in view of the fact that the findings have been arrived at by the trial Court after properly appreciating and evaluating the evidence available on record. It was further submitted that appellant is a habitual offender involved in several similar cases and, therefore, leniency may not be taken to reduce the sentence awarded by the trial Court. It was also submitted that as per sub-section (3) of Section 357 Cr.P.C. appropriate compensation is required to be awarded to both the injured from appellant as trial Court failed to award it.
On consideration of submissions made on behalf of the respective parties in the light of evidence available on record and the well settled legal position, the grounds raised on behalf of the appellant are liable to be rejected for the following reasons:- 10
(1) From the evidence available on record it is clear that immediately after the incident injured-Shri Omprakash and Smt.Sita Bai were taken by their family members to a local doctor, who after providing them primary medical aid and finding that the condition of injured-Shri Omprakash is very serious referred him to Kota for further treatment and he was brought to a private hospital situated at Kota and was admitted there for his treatment and he was operated upon also. It is also clear from the evidence that intimation about the admission of Shri Omprakash for his treatment and receiving injury as a result of some criminal act was given by Baheti Hospital to Police Station Baran Sadar on 21.7.2007 at 9.30 a.m. and on such intimation, ASI-Shri Nand Singh reached at that hospital and written report Ex.P3 was submitted before him on the basis of which formal FIR was registered. As the priority of the family members of the injured-Shri Omprakash and Smt.Sita Bai at that time was to provide proper and best medical aid to the injured, it was not expected from the family members of the injured to rush to a police station to lodge the FIR and in the overall facts and circumstances of the case it cannot be said that undue delay was made in lodging the report. It is well settled legal position that the prosecution case cannot be doubted and discarded merely on the ground of delay made in lodging the FIR, if otherwise it is well proved and satisfactory explanation is furnished for the delay made. In the present case, the reason furnished by the prosecution in the facts and circumstances of the 11 case is quite satisfactory. So far as the delay made in submitting the copy of the FIR before the Magistrate is concerned, from Ex.P8 it is revealed that the formal FIR was registered on 21.7.2007 at 10.15 p.m. in the night and copy of it was dispatched on 22.7.2007 and it reached at the office of the Magistrate on 23.7.2007 at 11.00 a.m. Although, there is some delay in submitting the copy of FIR before the concerned Magistrate but in absence of seeking explanation from the SHO/IO of the case for such delay, appellant cannot be allowed to raise this point for the first time in this appeal and doubt the veracity of the FIR. In the facts and circumstances of the case, it cannot be said that delay was deliberately made. It is to be noted that as per copy of "Rojnamcha-Aam" Ex.D3A maintained at Police Station Baran Sadar, Rapat No.989 was recorded at 10.15 p.m. on 21.7.2007 about registration of FIR. The contents of this Rapat are exactly similar to contents of the FIR and, therefore, any tempering of FIR is totally ruled out.
(2) In the facts and circumstances of the case the prosecution case cannot be doubted and rejected by the reason that no independent witness was produced to support it as the entire incident is claimed to be occurred inside the house of the complainant and nobody has claimed that during the course of incident or immediately thereafter any person outside from the complainant's family came at the place of incident. It is well settled legal position that when an incident occurs within the fourwalls of a house in normal course it is only the inmates 12 of the house are witnesses of the incident and in such a case if presence of an outsider is shown, the same is seen with some doubt by the courts unless his presence is satisfactorily explained. During the course of cross-examination of eye-witnesses and injured no suggestion was made that some other person outside the family was also present at the time of the alleged incident but his presence has deliberately been concealed. If appellant was so confident that the incident did not occur in the manner as alleged by the prosecution, he was free to produce the person in whose presence it was so occurred as defence witness or he could have himself appeared as witness but it was not done. Appellant without putting his version of the incident before the Court, cannot raise doubt on the prosecution case on the ground that no independent witness has been produced by the prosecution (3) Although, in the endorsement made by the police on the back side of the written report Ex.P.3 it has been mentioned that medico legal examination of injured-Shri Omprakash and Smt.Sita Bai was also separately got done but merely by that reason it cannot be said that before registration of FIR medico legal reports of injured were actually prepared. This endorsement on Ex.P3 was made by prosecution witness PW16-Shri Nand Singh but he neither in his examination-in-chief nor in cross-examination has said anything about preparation of these medical legal reports and, therefore, it cannot be accepted that the said reports were deliberately withheld from the 13 Court and, thus adverse inference must be raised against the prosecution about nature of injuries caused. As per the injury report of Shri Omprakash Ex.P9 it was prepared at 7.15 p.m. on 21.07.2007 whereas injury report Ex.P10 of Smt.Sita Bai was prepared at 7.30 p.m. In my view it was the duty of the defence counsel after inviting attention of Shri Nand Singh towards the endorsement made by him regarding medico legal examination of the injured persons to seek his explanation about existence and non-production of these reports before the Court and in absence thereof the appellant cannot be allowed to raise such a ground and seek adverse inference against prosecution merely on the basis of the aforesaid endorsement made on the back side of the report.
(4) Although, it is an admitted fact that soon after the incident injured-Shri Omprakash was taken to a local doctor and looking to his serious condition he was referred by that doctor to Kota for further treatment after providing him first-aid but there is no material available on record to infer that prescription slip and reference letter mentioning the nature of injuries of Shri Omprakash were also prepared by that local doctor and therefore, it cannot be said that the documents initially prepared regarding injuries of Shri Omprakash were also deliberately concealed from the Court and, therefore, adverse inference must be raised against prosecution on this account also. No suggestion about preparation of aforesaid documents or any other document was made to any of the prosecution witness during 14 cross-examination. From the evidence available on record at the most it is shown that the local doctor after providing first-aid to the injured referred him for further treatment to Kota.
(5) Court statement of injured PW5-Shri Omprakash cannot be discarded merely by the reason that he in his statement during trial made an admission that during the course of investigation he was not examined and his statement under Section 161 Cr.P.C. was not recorded. In view of the fact that his statement under Section 161 Cr.P.C. is available on record and Investigating Officer has stated that Shri Omprakash was also examined during investigation and his statement was recorded, it appears that the aforesaid admission was made by Shri Omprakash in ignorance. Otherwise also, there is no law to reject and discard Court statement of a witness merely by the reason that during investigation his statement was not recorded. (6) Although, it is the prosecution case that only one blow with axe was made by appellant on the head of injured-Shri Omprakash whereas as per his injury report Ex.P9 two injuries were found on his head but merely by that reason the entire prosecution case cannot be doubted and rejected as looking to the part of the body where the injuries were found and their interse closeness and the nature of the weapon used, possibility cannot be ruled out that both these injuries were result of a single blow made by the appellant. PW15-Dr.Mamraj Agrawal in his cross-examination has stated that both the injuries of Shri Omprakash were result of the same transaction. 15 (7) Injury report Ex.P9 and opinion given by Dr.Arun Kumar Sharma regarding nature of Injury No.1 as grievous and dangerous to life cannot be doubted and rejected merely by the reason that admittedly at the relevant time Dr.Sharma was posted as Medical Jurist at MBS Hospital, Kota whereas injured Shri Omprakash was admitted for his treatment at Baheti Hospital and no written order of a competent authority was produced which permitted Dr.Sharma to examine the injured at a private hospital and prepare his injury report. The injury report and opinion given by Dr.Sharma can also not be doubted by the reason that it was given without looking the x-ray report. In his examination-in-chief PW11-Dr.Arun Kumar Sharma has stated that on the requisition of SHO Police Station Baran Sadar and in compliance of the order of Superintendent MBS Hospital, Kota at the instance of ASI-
Shri Nand Singh he examined Shri Omprakash at Baheti Hospital and prepared his injury report Ex.P9. He has further stated that on 24.7.2007 by way of an application Ex.P11 his opinion was sought by SHO about nature of injuries of Shri Omprakash and on the basis of certified copies of surgical and clinical notes provided to him he opined the Injury No.1 to be grievous and dangerous to life. In his cross-examination the witness has said that the police approached the Superintendent MBS Hospital, Kota and on a telephonic message received from him, he examined injured-Shri-Omprakash. It is thus clear that Dr.Sharma examined the injured at Baheti Hospital on oral 16 order received from the Superintendent Hospital, Kota and I found no illegality in the same as the injured at the time was undergoing treatment at Baheti Hospital and his condition was serious. Similarly, the opinion given by this witness does not become suspect by the reason that it was given without looking the x-ray report as the witness gave it on the basis of CT-Scan report and surgical and clinical notes prepared by Dr. Mamraj Agrawal of Baheti Hospital and copies of the same were provided to him by ASI-Shri Nand Singh. In his cross-examination Dr.Sharma has further said that before injury report P9 was prepared by him he made contact with Dr.Mamraj Agrawal, who was present at Baheti Hospital, Kota. He has also said that copies of the clinical and surgical notes were signed by him. As per injury report Ex.P9 of Shri Omprakash it is shown that Dr.Sharma examined the injured and prepared the report on 21.7.2007 at 7.15 p.m. on a telephonic order of Superintendent MBS Hospital, Kota. PW16-Shri Nand Singh in his examination-in-chief has said that injured-Shri Omprakash was unconscious and was not in a position to move and, therefore, on 24.7.2007 he sought opinion of Medical Officer of MBS Hospital, Kota about nature of injury on the basis of operation notes of Shri Omprakash by way of an application Ex.P11 and the Medical Officer gave his opinion on the back side of application Ex.P11. It cannot be that injured Shri Omprakash was examined by Dr.Sharma of MBS Hospital, Kota without any authority or without obtaining permission from a competent authority including 17 Superintendent of that hospital. It is to be noted that as claimed by Dr.Sharma in his statement, Ex.P19-A, ExP20-A and Ex.P21-A copies of CT-Scan, reports of clinical and surgical notes prepared at Baheti Hospital bear the seal of Medical Jurist, MBS Hospital, Kota and sign of Dr.Sharma. These documents further supports the claim of Dr.Sharma that he gave his opinion about nature of Injury No.1 of Shri Omprakash on the basis of copies provided to him by Shri Nand Singh. (8) Even if it is admitted that the axe allegedly recovered by the Investigating Officer during the course of investigation at the instance of appellant even is not the axe used by the appellant in the incident then the prosecution case is not adversely affected and at the most it can be said that the recovered axe was not used by the appellant to cause injuries to the injured persons but it does not mean that axe was not used by the appellant.
(9) Although, PW16-Shri Nand Singh in his statement has not specifically said that on 21.7.2007 he took Dr.Arun Kumar Sharma from MBS Hospital, Kota to Baheti Hospital for examination of Shri Omprakash but as already discussed there is other ample evidence available on record to show that on the oral order of Superintendent of MBS Hospital, Kota Dr.Sharma went alongwith Shri Nand Singh from MBS Hospital to Baheti Hospital on 21.7.2007 and after examination of Shri Omprakash he prepared his injury report Ex.P9. (10) As the role attributed to the co-accused in the incident is quite different from the role attributed to the present appellant, it cannot be accepted that appellant is also entitled to be acquitted as the co- 18 accused were acquitted on the same set of evidence. It would not be proper for this Court at this stage to express any further opinion on merit regarding acquittal of the co-accused as the appeal filed by the complainant against their acquittal is separately pending for consideration before this Court.
(11) It cannot be accepted that the appellant did not enter into the house of the complainant and, therefore, offence under Section 452 IPC is not made out against him merely by the reason that blood stains were found outside the house of complainant near a 'Chabutari' and not in the 'Chowk' of the house where the incident has been claimed to be occurred. Both the injured and both the eye-witnesses in their respective examination-in-chief in one voice had said that appellant armed with an axe entered into their house and injuries were inflicted by him when both the injured were inside the house. In the written report Ex.P3 also the place of incident has been claimed to be inner part of their house. In her cross-examination PW1 injured- Smt.Sita Bai has denied the suggestion that at the time of incident channel gate of their house was closed and the incident occurred on the road. Complainant-PW4-Shri Yogesh Gupta in his examination-in- chief has said that as a result of the blow made by the appellant his father fell down and he brought him outside the house. He has further said that blood did not fall at the place where axe blow was made to his father but blood spread on the 'Chabutara' situated outside their house where he brought his father. In his cross-examination the 19 complainant has said that he brought his father within 10-15 seconds after the accused fled away from the place of incident and during that period shirt of his father got stains by blood but it did not fall upon the ground. It is to be noted that no suggestion was made to the witness in his cross-examination to the effect that the appellant did not enter inside their house and the entire incident occurred outside their house on the road or at any other place and false allegation has been made that appellant entered inside their house. No such suggestion was made to injured-Shri Omprakash PW5. PW6-Shri Jitendra Gupta, who claims to be an eye-witness, in this regard in his cross-examination has said that soon after the incident they brought their father outside the house so that he can be taken to hospital. No question was put to this witness in his cross-examination about actual place of incident. It is thus clear that there is ample to show that the incident occurred inner part of the house of the complainant-party.
Now, in the facts and circumstances of the case it is to be seen whether the sentence awarded by the trial Court for offence under Section 307 IPC is fit to be reduced to the period of imprisonment already undergone by the appellant merely in view of the fact that he has already served about four years of imprisonment. To decide the appropriate sentence which is to be awarded to an accused not only the gravity of offence but also the manner in which it was committed to be considered by the Court and it should always be proportionate to the nature of the offence. In the present case, it 20 has been found that appellant after arming him with an axe alongwith acquitted accused suddenly entered into the house of the complainant and after abusing the complainant party demanded payment of Rs.10,000/- from them and when the complainant-party refused to pay it he immediately inflicted a severe blow on the vital part like head of the body of Shri Omprakash and one of the injury has been opined to be grievous and dangerous to life. It is also clear that the size of the wound was 13 to 15 centimeter and bone of the head was found to be broken and operation was conducted on 20.7.2007 as well as on 25.7.2007. As per Ex.P22 it was opined by Dr.Mamraj Agrawal (PW15) on 2.10.2007 that the left hand and leg of Shri Omprakash are paralysed and he is not in a position to walk himself. In my considered view looking to the weapon used by the appellant and the resultant injury and condition of injured-Shri Omprakash imprisonment for seven years cannot be said to be unreasonable and excessive. But in my view once appellant was held guilty for offence under Section 307 IPC and reasonably sentenced, he was not needed to be separately convicted and sentenced for offences under Sections 327 and 326 IPC as injuries were caused by him in the one and the same transaction and his conviction and sentence to that extent is liable to be set aside. It is to be noted that appellant was neither charged nor convicted and sentenced for offence under Section 323 IPC for the injury caused by him to Shrimati Sita Bai which is simple in nature caused by a blunt object.
21
Now, it is to be seen whether demand of compensation made by the victim injured-Shri Omprakash from the appellant under Section 357 (3) Cr.P.C. is reasonable and can be accepted in this appeal more particularly in view of the fact that no material was separately made available on record about paying capacity of the appellant.
Sub-section (3) of Section 357 Cr.P.C. provides that when a Court imposes a sentence of which fine does not form a part, the Court may when passing judgment order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. Sub- Section (4) provides that such order may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. It is thus clear that Court is empowered while imposing sentence to an accused it can further order the accused to pay by way of compensation to the person who has suffered any injury by reason of the act for which the accused person has been so sentenced. Such order can also be passed by the appellate Court. In the present case, as injured-Shri Omprakash has suffered injury at the hand of appellant in the incident for which he has been found guilty and sentenced, this Court has power to award compensation to him from the appellant despite the fact that no such 22 compensation has been awarded by the trial Court. 23
Hon'ble Supreme Court in the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra reported in (2013) 6 SCC 770 while considering the question of award of compensation to victims of crime under Section 357 Cr.P.C. has held that "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. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 Cr.P.C. would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family."
Hon'ble Supreme Court in the case of K.A.Abbas H.S.A. Vs. Sabu Joseph & Anr. reported in (2010) 6 SCC 230 has held that "Section 431 clearly provides that an order of compensation under Section 357 (3) will be recoverable in the same way as if it were a fine. Section 421 further provides the mode of recovery of a fine and the section clearly provides that a person can be imprisoned for non-payment of fine. Therefore, going by the provisions of the code, the intention of the legislature is clearly to ensure that mode of 24 recovery of a fine and compensation is on the same footing. In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payment of compensation under Section 357 (3) should fail."
Hon'ble Supreme Court in the case of R.Mohan Vs. A.K.Vijaya Kumar reported in (2012) 8 SCC 721 has held that "Idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357 (3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the complainant under Section 357 (3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357 (3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the IPC. The conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default."
It is thus clear from these authorities that it is the mandatory duty of the Court to award compensation to the victim in each and every criminal case in which he has suffered some loss or injury. It is also clear that if the accused fails to pay the amount of compensation so awarded by the Court, the Court is empowered to 25 award sentence of imprisonment in default thereof. It is further clear that the amount of compensation must be reasonable in the facts and circumstances of the case and, apart from other, the paying capacity of the accused should also be taken into consideration.
If in the light of the aforesaid principles of law laid down by Hon'ble Supreme Court the facts and circumstances of the present case are considered, there can not be any dispute that compensation is to be awarded to the injured-Shri Omprakash. As already found, appellant caused injuries on his head by a sharp-edged weapon like axe and one of the injury has been opined to be grievous and dangerous to life and it has further been opined that the left hand and leg of the injured got paralyzed in consequence of the said injury and he is not in a position to walk himself. Although, no material is available on record regarding paying capacity of the appellant but having regard to the facts and circumstance of the case and the time lag since the offence was committed, remand of the case at this distant point of time does not appear to be a good option to this Court for determination of the amount of compensation after affording opportunity to the parties to provide material about paying capacity of the accused and in such a situation this Court considers it proper to award the amount to the injured from appellant. Having regard to the nature of injury caused and the manner in which the entire incident occurred and in the facts and circumstances of the case, in the opinion of this Court the ends of justice would be served if a lumpsum 26 amount of Rs. One lac is awarded to the injured as compensation.
Consequently, S.B.Criminal Appeal No.773/2012 filed by the accused-appellant-Shri Amarlal is partly allowed and his conviction and sentence for offences under Sections 327 and 326 IPC is set aside but his conviction and sentence for offences under Sections 452 and 307 IPC is upheld and affirmed and to that extent his appeal stands dismissed.
S.B.Criminal Appeal No.821/2013 filed by the victim-injured-Shri Omprakash to the extent of claim of compensation from accused- respondent-Shri Amarlal is allowed and an amount of Rs.one lac is awarded to the injured-Shri Omprakash from accused-Shri Amarlal under Section 357 (3) Cr.P.C. A period of thirty days from today is granted to the accused-Shri Amarlal to deposit this amount by way of a demand draft issued by a Nationalized Bank in the trial Court. If such amount is deposited, the same would be paid to the injured-Shri Omprakash after obtaining a proper receipt therefor. In case the accused fails to deposit the said amount within the period so granted to him by this Court, he would be liable to undergo additional sentence of simple imprisonment for six months. It is made clear that this sentence is apart from the default sentence awarded to him for offences under Sections 452 and 307 IPC.
(PRASHANT KUMAR AGARWAL), J teekam Reserved judgment