Jammu & Kashmir High Court
Suresh Kumar vs State Of Jammu And Kashmir on 11 July, 2007
Equivalent citations: 2007(3)JKJ346
Author: Virender Singh
Bench: Virender Singh
JUDGMENT Virender Singh, J.
1. Appellant-Suresh Kumar (hereinafter to be referred to as 'Accused') alongwith his three co-accused namely Smt. Tripta Devi, Ms. Jyoti Bala & 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.
2. Suresh Kumar has been sentenced to undergo rigorous imprisonment for four years and a fine of Rs. 5,000/- for the offence punishable under Section 307 RPC, 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.
3. Aggrieved by the judgment of conviction and sentence, the accused has preferred the instant appeal.
4. The case of the prosecution can be put, thus:
The date of occurrence is 03.10.1992. Time is 12.15 p.m. PW Madhu Soodan is the injured in this case. He unfolds that on 03.10.1992 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 to Post Graduate Institute, Chandigarh (PGI) where he remained admitted from 04.10.1992 to 13.10.1992. On his statement the present case was registered. The accused was allegedly arrested on 07.10.1992 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 under Section 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 hereinabove.
5. In order to substantiate the charge, the prosecution examined Madhu 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.
6. The case set up by the accused as emerges from the statement recorded under Section 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.
7. 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.
8. 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 RPC, contending that the conviction of the accused for the said charge is not sustainable in as much 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 RPC. In this regard, he has drawn the attention to main medical evidence on record, which is as under:
9. 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 with the noting that a definite opinion would be given after report from the District Hospital Kathua. Subsequently on 06.11.1992, aforesaid Dr. Bhanu Pathania on the basis of the report of one Dr. A.H. Ramzan, 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 caused by a sharp edged weapon.
10. Mr. Sethi states that before 06.11.1992, the date on which aforesaid Dr. Bhanu Pathania had opined that injury to be grievous in nature, admittedly, injured was discharged from PGI Chandigarh and on the basis of complete record available to Dr. Pathania, he had given the said opinion. Dwelling upon his arguments, 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 say that injuries No. 1 & 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 RPC especially when Dr. A.H. Ramzan of Neurosurgery Department (PGI Chandigarh) was not produced by the prosecution to prove the entire treatment given to the injured. Therefore, according to learned Counsel, the present case would simply fall down to Section 326 RPC instead of Section 307 RPC, the charge for which the accused stands convicted.
11. Mr. Vinod Bakshi, learned Dy. Advocate General, vehemently opposes the submissions advanced by Mr. Sethi and submits that the weapon used by the appellant and the seat of injury (head) would be enough to conclude that the conviction recorded under Section 307 RPC is justified and the present case does not call for diluting the offence.
12. I find substantial weightage in the arguments advanced by Mr. Sethi vis--vis the offence and in my considered view, the present case does not fall within the mischief of Section 307 RPC.
13. Admitted position is that the treating doctor (Dr. A.H. Ramzan) who had attended to the patient has not been produced by the prosecution. 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 SKIM 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 to this aspect 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. On the other hand, there is no medical evidence on record (PGI Chandigarh) to show that as to what type of treatment was provided to the injured. The opinion of Dr. Bhanu Pathania subsequently given on the basis of entire treatment given by the treating doctor (Dr. A.H. Ramzan) reflects that the injury (head injury) was grievous in nature. From this, it can be comfortably 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 No. 1 & 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. He did not say that the collective effect of the injuries was that the patient would have died, if not timely treated. 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 say in the aforesaid terms so as to bring the case of the prosecution falling under Section 307 RPC. I am not inclined to give any weightage to the said statement, in the absence of best medical evidence withheld by the prosecution.
14. The net result is that the main injury for which the accused is charged and convicted under Section 307 RPC would dilute to Section 326 RPC only. I, consequently, alter the conviction from the said charge and instead convict him under Section 326 RPC.
15. 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 instant trial for long eight years. After suffering conviction, he was granted the concession of suspension of substantive sentence. 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 24 years of age. He lost his wife view years back and his entire family is dependent on him. He has to look after his children. Besides this, the parents of the accused are also dependent on him. 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 about one month, which includes the period he remained in custody as an under trial prisoner and sending him to jail once again would adversely affect his entire family.
16. 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 sentence of imprisonment can be reduced from one year also the minimum sentence provided under the Act.
17. On the basis of aforesaid mitigating circumstances, Mr. Sethi requests for a concessional tilt with regard to the reduction of sentence, which is again opposed by Mr. Bakshi, the learned State counsel.
18. I find substance in the submissions advanced by Mr. Sethi on this count.
19. 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 v. 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 realize 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.
20. 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 and State of Haryana v. Sukhbir Singh and Ors. , Their Lordships, while dealing with the provisions of compensation as envisaged in the Code of Criminal Procedure, observed, thus:
10. ...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 re-assure 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 better way.
21. 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.
22. 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 said amount before the concerned Chief Judicial Magistrate, who, after issuance of notice to the injured, shall disburse the said amount to him. It is also made clear that the default in making the said amount within the stipulated period would disentitle the accused to the relief granted to him in the aforesaid term and in that eventuality he shall undergo the entire substantive sentence as already awarded by the learned Trial Court.
23. 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.
24. Mr. Sethi states that he has conveyed the order to the appellant, who is also present in the Court.