Allahabad High Court
Satya Prakash And Others vs State Of U.P. on 5 November, 2019
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 27.09.2019
Delivered On:- 05.11.2019
Case :- CRIMINAL APPEAL - 141 of 2009
Appellant :- Satya Prakash And 2 Others
Respondent :- State Of U.P.
Counsel for Appellant :- Preet Pal Singh Rathore, Anil Kumar Srivastava, Anurag Sharma, Ashok Kumar Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth, J.
1. Heard Sri Anurag Sharma, learned counsel for the appellant, Sri Pankaj Srivastava, learned A.G.A. for the State and perused the lower court record.
2. This criminal appeal has been preferred by appellants, Satya Prakash, Om Prakash and Ram Prakash, all sons of Chandra Pal, against the judgment and order of conviction dated 07.01.2009 passed by Special Judge, S.C./S.T. P.A. Act, Budaun in Special Sessions Trial No. 140 of 1996, arising from Case Crime No. 259 of 1991, State vs. Satya Prakash and 2 Others, convicting and sentencing the appellants to 3 years rigorous imprisonment and fine of Rs. 200/- each, under Section 452 I.P.C.; to 6 months rigorous imprisonment under Section- 323 I.P.C. read with Section 34 I.P.C.; to 3 years rigorous imprisonment along with fine of Rs. 200/- each, under Section 325 I.P.C read with 34 I.P.C.; to 1 year's rigorous imprisonment along with Rs. 100/- each under Section 504 I.P.C. and to 1 year's rigorous imprisonment along with fine of Rs. 200/- each under Section 3(1)(X) of S.C./S.T. Act. On failure to deposit the fine the appellants are directed to undergo six months further imprisonment. All the sentences were directed to run concurrently.
3. The prosecution case in short is that the informant, Ram Deen, son of Ganga Ram Khatik, resident of village Byor, Police Station- Binavar, District- Budaun, gave an application dated 28.09.1991 at the aforesaid police station alleging that on the direction of the village pradhan the informant along with Jagdish and Ram Babu were constructing village street on 27.08.1991 as labourers. The appellants came to them and abusing them stated that they do not come to work at their place and are working here on the direction of pradhan. The informant and his companions asked them not to abuse them but they came with lathi-danda in their hand and started beating them. They got terrified and ran into their houses. The appellants entered into their houses chasing them and caused injuries to them. When the ladies of the house came to save them they were also beaten. This incident took place at about 6:00 p.m and was seen by villagers, Jhamman, Shivraj and others who saved them. In this incident the informant suffered injury in the finger of right hand and Jagdish and Ram Babu also suffered injuries over their bodies.
4. The aforesaid application was registered as F.I.R. on 28.09.1991 at 12:10 p.m at Police Station- Binawar and Case Crime No. 259 of 1991 was registered against the appellants. The investigation was carried out and the Investigating Officer submitted charge sheet against the appellants.
5. Charges were framed under Section 452 I.P.C. read with Section 34 I.P.C., 323 I.P.C. read with Section 34 I.P.C., Section 325 I.P.C. read with Section 34 I.P.C., Section 504 I.P.C. read with Section 34 I.P.C. and Section 3(1)(X) of S.C./S.T. Act. The appellants denied the charges and sought trial.
6. The prosecution examined the informant, Ram Deen, as P.W.-1, who proved the prosecution case as per the allegations made in the F.I.R. P.W.-2, Dr. T.N. Sharma, proved that there was fracture on base of the proximal phalenx of right index finger of the injured, Ram Deen, P.W.-1. No fracture was found on the person of injured, Jagdish. P.W.-3, Jagdish, stated that he knows the accused-persons who are the residents of his village and are thakur by caste. He repeated the allegations made in the F.I.R. in his statement P.W.-4, Dr. Kalanidhi Saraswat, stated that she examined the injury of the injured, P.W.-1, between the index and middle finger of his right hand and referred him for x-ray. The injured informed about pain in lower part of his waist. She also found pain and swelling in the left leg of the other injured, Jagdish, P.W.-3. She proved that the aforesaid injury can be caused by hard and blunt object. Court witness- 1, Constable, Atar Singh, proved that he was posted along with Constable, Ram Das and Sub-Inspector, R.N. Pandey, and he recognised the signatures on the F.I.R. and the site plan and charge sheet.
7. The statements of the accuseds under Section 313 Cr.P.C. were recorded wherein they denied the incident and stated that they have been implicated on account of enmity with the pradhan and the injuries suffered by the injureds was stated to be on account of falling on the heap of bricks.
8. The trial court considered the arguments raised on behalf of the accuseds like, absence of production of any independent witness of the incident, delay in F.I.R., false implication in the case, improbability of the injury from the incident alleged, non-production of the ladies who were in the house of the injureds at the time of incident, etc., and found the offences alleged against the appellants proved beyond doubt. Hence, this appeal has been preferred.
9. Counsel for the appellant has submitted that the prosecution story is doubtful since none of the female members of the family of the informant were examined before court as prosecution witness, when name of Smt. Kalawati, wife of Ram Deen, was mentioned a witness in the charge sheet dated 07.11.1991 by the Investigating Officer. He has submitted that the non-production of the aforesaid witness proved that the prosecution case was doubtful and the allegations against the appellants were taken.
10. He has next submitted that as per Section 3(1)(X) of S.C./S.T. Act, the insult or intimidation of a member of Schedules Caste should be in public view. No caste coloured remarks were made against the informant and his companions and the offence did not took place in public view. He has submitted that no words have been mentioned by P.W.-1 or P.W.-3 which may indicate that they were insulted or intimidated intentionally being member of a Scheduled Caste or Scheduled Tribe only. He has relied upon the judgment of the Apex Court in the case of Swaran Singh and others vs. State, (2008) 8 SCC 435, in this regard.
11. The third submission of the counsel for the appellant is that the P.W.-2, Dr. T.N. Sharma, radiologist has stated in his cross-examination that the injury suffered by the informant can be caused by falling on heavy object like a brick. The injured informant, Ram Babu and Jagdish, were admittedly constructing street when the incident is alleged to have occurred. P.W.-4, Dr. Kalawati Saraswat, has also stated the same thing regarding the manner of injuries suffered.
12. Fourth submission of the counsel for the appellant is that none of the independent witnesses, namely, Jhamman son of Ranjeet and Shivraj son of Kedar, who are stated to have witnessed the incident were produced when they have been mentioned as witnesses in the charge sheet by the Investigating Officer.
13. It has been finally been submitted that more than 28 years have passed since the incident dated 27.09.1991 and the appellants have no criminal antecedent except this implication and therefore no useful purpose would be served by sending the appellants to jail again. They have already suffered much mental agony in contesting the case before the trial court and before this court and may be acquitted of the charges.
14. Learned A.G.A. has submitted that merely non-production of the female members of the family of the injureds cannot be said to caste doubt on the prosecution case. The injured witnesses, P.W.-1 and P.W.-3, have been examined before the court below and they have proved the incident and the injuries suffered by them. P.W.-2 and P.W.-4, the radiologist and doctor respectively have also been examined and they have proved the injuries suffered by the injureds. The doctor and the radiologist have only stated that the injuries suffered by the injureds can be caused by falling on hard object or bricks. They have not stated that the injury was caused by falling on bricks. Only possibility of such injuries by falling on the heap of bricks has been expressed. He has further submitted that the eye-witnesses mentioned in the F.I.R. were not examined because nobody wants to get involved in dispute between the members of the same village and it cannot be said that the prosecution case stands belied on account of the non-production of the eye-witnesses.
15. The offence under Section 3(1)(X) is fully proved against the appellants since the incident took place on an open street, which was within full public view. The appellants being thakurs by caste intentionally, intimidated and abused the injureds who refused to work at their place and were working on the public street on the direction of the pradhan of the village. He has submitted that the offence under the alleged section is fully made out even if no caste coloured remarks were made by the appellants.
16. Finally, it has been submitted that the prosecution has fully proved the case against the appellant beyond doubt and therefore the criminal appeal deserves to be dismissed and the judgment of the trial court deserves to be confirmed.
17. After considering the rival submissions, this court finds that the findings of the lower court regarding the allegations made against the appellants regarding commission of offence under Section 452 I.P.C. can not be sustained. The allegation that the injureds ran into their houses to protect themselves from beating by appellants and thereafter the ladies of the house came out and tried to protect them is not proved from the material on record. None of the ladies of the houses of the injureds were produced in evidence to prove that when the injureds were beaten they came inside the house and thereafter the appellants entered into their houses and pulled the injureds out and again beaten them. There is no evidence in this regard and the best witnesses could have been the ladies of the houses of the injureds who were not produced as witness before the trial court. Merely the self serving statements of P.W.-1 and P.W.-3 are on record to prove such an allegation which cannot be accepted without corroboration from the inmates of their houses. Therefore, the conviction and sentences of the appellants under Section 452 I.P.C. are hereby set aside.
18. The offences alleged under Section 323 IPC read with Section 34 IPC, Section 325 IPC read with 34 IPC and Section 504 IPC are proved against the appellants from the material on record discussed above and on record of the court below.
19. Regarding the offence under Section 3(1)(X) of the SC/ST Act, it appears that the injureds were intimidated, beaten and threatened on a public street where they were working by the appellants but it does not appears that this was done only because the injureds belong to Scheduled Caste or Scheduled Tribe. Therefore, there was no intention to humiliate them only because the injureds belong to such communities. Once such an intent is found missing and no caste name or caste coloured remarks were made by the appellants against the injureds, hence the full ingredients of Section 3(1)(X) of SC/ST Act are missing and the conviction of the appellants under this provision cannot be upheld.
20. The final submission of the counsel for the appellants, that more than 28 years have passed since the date of alleged incident dated 27.09.1991 and the appellants have no criminal antecedent except this case and sending them to jail at this stage is not justified deserves consideration.
21. The Hon'ble Supreme Court has urged all the Courts time and again to exercise the power under Section 357 Cr.P.C. liberally which was intended to reassure the victim that he or she is not forgotten in the criminal justice system and to meet the ends of justice in a better way.
22. In Hari Kishan v. Sukhbir Singh, (1988) 4 SCC 551 the Supreme Court urged all courts to exercise their power under Sec. 357 Cr.P.C. liberally to safeguard the interests of the victim. In this case, the victim and his relatives were attacked by seven persons in the field. The victim received severe head injuries which impaired his speech permanently. The accused were convicted by trial court under Sec.s 307, 323 and 325 of IPC read with Sec. 149 and sentenced to imprisonment for three to four years. On appeal, the High Court acquitted two accused and quashed the conviction of other five accused under Sec. 307/149 IPC, but maintained their conviction under Sec. 325/149 IPC. The accused persons were granted probation and each was directed to pay compensation of Rs.2500/- to victim. On appeal, the Supreme Court did not disturb the sentence of imprisonment but ordered the accused persons to jointly pay a total compensation of Rs.50,000/- to the victim under Sec. 357(3) Cr.P.C. recording following reasons :-
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 better way.
23. In Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770, the Supreme Court went a step further and observed that 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.
24. 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 Sec. 357 Code of Criminal Procedure 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.
25. In K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230 the Apex Court made it clear that the whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment.
26. As regards sentencing policy a Bench of 3-Hon'ble Judges of the Apex Court in the case of Hazara Singh Versus Raj Kumar & Ors. (2013) 9 Supreme Court Cases 516 has highlighted the 'sentencing policy' after taking note of its earlier decisions. Relevant para-13 of the report, reads as under:
"17) We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. "
27. Almost same principles on sentencing were propounded by the Apex Court in the case of State of M. P. vs Babulal & Ors (2013) 12 Supreme Court Cases 308, in the following terms :
"19. In view if the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing mis-placed sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The Punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing."
28. It would be useful to note down certain cases where the Court has considered the period of pendency of appeal and the date of incident in converting the custodial sentence into fine.
29. George Pon Paul Vs. Kanagalet and others (2010) 1 SCC (Cri) 1070- in this case, the appellant was found guilty for the offence punishable u/s 326 and 452 IPC. He was sentenced to confinement till rising of the Court and fine with default stipulation. The High Court on revision by the victims enhanced the sentence, however, the Apex Court did not interfere in the sentence awarded by the trial Court due to long passage of time.
30. Nasir Vs. State of U. P. (2011) 2 SCC (Cri) 136 - The appellant was found guilty for the offence punishable u/s 399/402 IPC and 25 (1)(a) Arms Act and was sentenced to five years' imprisonment u/s 399/402. The occurrence had taken place about 29-years ago and the appellant remained in custody for more than six months, therefore, the sentence awarded to the appellant was reduced to the period already undergone by him.
17. State of U. P. Vs. Siyaram and another (2013) 2 SCC (Cri) 137 - in this case appellant Jiya Lal was found guilty for the offence punishable u/s 307/34 IPC, however considering the fact that the incident had taken place in the year 1988, appellant has now become an aged person and there is nothing on record to show that he is either habitual offender or previous convict, his sentence was reduced to already under gone but fine was increased to Rs. 10,000/-. In State appeal, the Apex Court did not approve the reduction of sentence, however refused to interfere because the prosecution had been initiated in the year 1988, but fine was enhanced to Rs. 25,000/-.
31. Labh Singh & others Vs. State of Haryana & Anr. (2013) 1 SCC (Cri) 1125 - in this case the appellants were found guilty for the offences punishable u/s 326/324/323 r/w Section 34 IPC. The appellants were very old I. e. 82, 72 and 62 years respectively, incident was 27-years old and they had undergone part of the sentence, therefore, the Apex Court directed each appellant to pay Rs. One lakh compensation to the complainant/injured persons and their sentence was reduced to period already undergone by each of them.
32. Jagpal Singh & others Vs. State of U. P. 2004 (5) ACC 310 - this Court vide judgment dated 26.6.2004 found that the incident had taken on 1.9.1977, the appellants were convicted on 23.4.1981 u/s 325/34 and 324 IPC and so each was sentenced to pay fine of Rs. 2,000/- u/s 324 IPC and Rs. 4,000/- u/s 325/34 IPC.
33. Raghuvera & Ors Vs. State of U. P. 1991 (28) ACC 498, - the trial Court and the appellate Court have convicted the five revisionists for the offences punishable u/s 147 and 307/149 and were sentenced to R.I. for one year u/s 147 and five years' R.I. u/s 307/149 IPC. In revision this court converted the conviction into sections 147, 323/149, 324/149 and 325/149 IPC and observed that all the offences were committed in the same transaction, so separate sentences need not be recorded. The revisionists were sentenced to period of imprisonment already under gone by each of them with fine of Rs. 500/- each. It was further observed that the incident took place about 8-years ago and injured can be compensated with fine. It was held that short term sentences now are not likely to serve any useful purpose.
34. Satsen Vs. State of U. P. 2014 (84) ACC 606, - in this case the appellant was convicted for the offence punishable u/s 307 IPC, but considering the fact that the incident is 33 years' old, appeal came up for hearing after 32-years and the appellant is also ill, the sentence of three years' R.I. awarded by the trial Court was converted into fine of Rs. 30,000/-, out of which Rs. 25,000/- was to be paid to the injured, if he is alive or his legal heirs.
35. After taking into consideration the case-law referred above and striking a balance between the nature of the crime and that the appellants have already suffered the pangs and agony of protracted trial and appeal for the last about 28 years; there is no history of their previous involvement in any other criminal case; each had been in jail for few days in connection with this case and the maximum custodial sentence awarded to the accused-appellants is three years, the ends of justice would be met if the conviction of the appellants are upheld under Sections- 323 read with Section 34 IPC, 325 read with Section 34 IPC and under Section 504 IPC but their sentences are converted into fine of Rs. 15,000/- per appellant. Each of the appellants shall pay Rs. 5,000/- per victim to the three injureds or to their legal heirs and representatives, if any of them is not surviving, within two months from the date of this judgment and order. On failure to make payment of the aforesaid amounts as compensation to the injureds the appellants shall be taken into custody after two months from the date of this judgment and order. They shall serve their remaining sentence under Section 323 read with Section 34 I.P.C., Section 325 read with Section 34 I.P.C. and Section 504 IPC as per the judgment of the trial court.
36. The judgment and order of the trial court is set aside. The appellants are on bail their bail bonds and sureties are discharged.
37. The office is directed to send back the record of the court below along with copy of this judgment and order for compliance.
38. This criminal appeal is allowed.
Order date: 05.11.2019 Rohit