Uttarakhand High Court
Gullu And Anr vs State on 13 December, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.87 of 2004
Gullu & Anr.
........Appellants (in jail)
Versus
State of Uttaranchal (now State of Uttarakhand)
.........Respondent
Mr. Parikshit Saini and Mr. Mohd. Safdar, Advocates for the appellants
Mr. S.S. Adhikari, A.G.A. with Mr. P.S. Uniyal, Brief Holder for the State
Ms. Anjali Noliyal, Advocate for the complainant
Hon'ble Lok Pal Singh, J.
This criminal appeal has been preferred against the judgment and order dated 16.3.2004 passed by Ist F.T.C./Addl. Sessions Judge, Roorkee, District Haridwar in Sessions Trial no.340 of 2001, whereby the appellants have been convicted under Section 308 of IPC and have been sentenced to rigorous imprisonment for a period of four years and fine of Rs.500/- each. It is also directed that in default of payment of fine the accused/appellants shall undergo further one month's simple imprisonment.
2. Briefly stated, facts of the case are that on 5.1.2001 PW1 Smt. Sitara Devi lodged a First Information Report at Kotwali Roorkee with the averments that her husband Jahangir does work of selling clothes. During Eid, accused Haseem borrowed cloth from her husband Jahangir and had promised to give money next day. Next day i.e. on 29.12.2000 at 12.30 pm, when her husband went to the house of accused Haseen for his money, accused/appellants Haseen and Gullu and co-accused, Jubain attacked upon her husband with an intention to kill him, due to which her husband became unconscious and fell down. Thereafter, accused Haseen and Gulla caused injuries to Jahangir with an iron rod and axe, 2 respectively. On hue and cry, one neighbour Guddu came at the spot and saw that accused Haseen was having iron rod and Gullu was having an axe in their hands and Jahangir was lying on the floor, drenched in blood. The accused persons threatened to kill the injured and thereafter fled away from the spot. It has further been stated that her husband's condition was very serious; he was taken to Government Hospital, from where he was referred to Meerut Hospital. On the basis of F.I.R., case crime no.3/2001 was registered against the accused Gullu, Haseen and Zubain in respect of offences punishable under Sections 308, 352, 323 and 506 of IPC. Investigation of the case was carried out and on completion of investigation charge sheet was filed against the accused persons for their trial under the aforesaid sections.
3. Additional Chief Judicial Magistrate, Roorkee, on receipt of charge sheet, after giving necessary copies to the accused persons as required under section 207 Cr.P.C., committed the case to the court of Sessions for trial. On 02.01.2002, Addl. Sessions Judge, after hearing the parties, framed charge u/s 308, 352, 323 and 506 of IPC against the accused persons. The charge was read over and explained to the accused, to which they pleaded not guilty and claimed to be tried. On denial of guilt, the prosecution got examined P.W.1 Smt. Sitara Devi (complainant), P.W.2 Jahangir (injured), P.W.3 Khalid, P.W.4 Guddu, P.W.5 Mahesh Chandra. P.W.6 Dr. A.S. Shukla, P.W.7 Dr. Yogesh Kumar and P.W.8 S.I. Nisha Sharma. Thereafter, oral and documentary evidence was put to the accused under section 313 Cr.P.C in the form of questions, in reply to which they stated that they have been falsely implicated in the case due to previous 3 animosity. However, they did not lead any evidence in defence. The trial court, after hearing the parties and perusal of evidence, by the impugned judgment and order, convicted and sentenced the accused/appellants Gullu and Haseen, as above. However, the trial court acquitted co-accused Jubain from the charges levelled against her. Feeling aggrieved, they have preferred this appeal.
4. Mr. Parikshit Saini and Mr. Mohd. Safdar, learned counsel for the appellants have confined their arguments qua the quantum of sentence only. They have submitted that the F.I.R. was registered on 05.01.2001 and since then, the appellants are consistently facing mental agony about the pendency of the criminal case against them. There is no other criminal case pending against them. He has further contended that the petitioner is a first time offender and thus the appellants are entitled to be granted benefit of Probation of Offenders Act, 1958, or in the alternative, the sentence awarded to the appellant may be reduced to the period already undergone by them.
5. I have heard learned counsel for the parties and perused the entire record.
6. Having re-appreciated the entire evidence on record, and after considering the submissions of learned counsel for the parties, this Court is of the view that the prosecution has successfully proved charge of offence punishable under section 308 IPC against the accused/appellants. The trial court has rightly convicted them under the aforesaid section. The conviction of the appellant is, therefore, affirmed. Now, this Court has to 4 consider the submissions of learned counsel for the petitioner on the point of sentence only.
7. Hon'ble Apex Court in the case of State of M.P. Versus Mehtaab 2015 (1) RCR (Criminal) 1008 has held as under:
"8. We find force in the submission. It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society. It is also the duty of the court to duly consider the aspect of rehabilitating the victim. Unfortunately, these factors are missing in the impugned order. No cogent reason has been assigned for imposing only 10 days sentence when an innocent life has been lost. Award of unreasonable compensation has also not been considered. Apart from the sentence and fine/compensation to be paid by the accused, the Court has to award compensation by the State under Section 357A when the accused is not in a position to pay fair compensation as laid down by this Court in Suresh vs. State of Haryana (Criminal Appeal No.420 of 2012 decided on 28th November, 2014). This Court held :
"14. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such 5 duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful."
10. As already observed, the respondent having been found guilty of causing death by his negligence, the High Court was not justified in reducing the sentence of imprisonment to 10 days without awarding any compensation to the heirs of the deceased. We are of the view that in the facts and circumstances of the case, the order of the High Court can be upheld only with the modification that the accused will pay 6 compensation of Rs.2 lakhs to the heirs of the deceased within six months. In default, he will undergo RI for six months. The compensation of Rs.2 lakhs is being fixed having regard to the limited financial resources of the accused but the said compensation may not be adequate for the heirs of the deceased. In such situation, in addition to the compensation to be paid by the accused, the State can be required to pay compensation under Section 357-A. As per judgment of this Court in Suresh (supra), the scheme adopted by the State of Kerala is applicable to all the States and the said scheme provides for compensation upto Rs.5 lakhs in the case of death. In the present case, it will be appropriate, in the interests of justice, to award interim compensation of Rs.3 lakhs under Section 357-A payable out of the funds available/to be made available by the State of Madhya Pradesh with the District Legal Services, Authority, Guna. In case, the accused does not pay the compensation awarded as above, the State of Madhya Pradesh will pay the entire amount of compensation of Rs.5 lakhs within three months after expiry of the time granted to the accused."
8. Hon'ble Apex Court in the case of State of Himachal Pradesh vs. Ram Pal, Crl. Appeal No.393 of 2015, decided on 27.02.2015, has held as under:
13. It is evident from the facts and circumstances of the case that the respondent has not called in question his conviction. We have before us only challenge to the inadequacy of the sentence in the present appeal filed by the State. Moreover, in an appeal under Article 136 of the Constitution, this Court does not re-appreciate the evidence, in absence of perversity or patent legal error, merely because a different view was also possible. We are thus, not inclined to reopen the correctness of conviction of the respondent 7 and proceed to consider the question of adequacy of the sentence. In our view, the sentence of mere fine of Rs.40,000/- imposed by the High Court is not adequate and proportionate to the offence.
We have been informed that a sum of Rs.3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section. This Court has dealt with the issue in Suresh vs. State of Haryana1 , Manohar Singh vs. State of Rajasthan & Ors. (Criminal Appeal No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab (Criminal Appeal No.290 of 2015 decided on 13.2.2015). Having regard to totality of circumstances of the present case, we feel that ends of justice will be served if the accused is required to pay total compensation of Rs.1 lakh and the State to pay a sum of Rs.3 lakhs. 14. Accordingly, we modify the 14. Accordingly, we modify the impugned order passed by the High Court and enhance the compensation to be paid by the respondent accused to Rs.1 lakh to be paid within four months failing which the sentence awarded by the Court of Session shall stand revived. In addition, we direct the State of Himachal Pradesh to pay interim compensation of Rs.3 lakhs. In case the respondent fails to pay any part of the compensation, that part of compensation will also be paid by the State so that the heirs of the victim get total sum of Rs. 4 lakhs towards compensation. The amount already paid may be adjusted.
9. Having regard to the facts and circumstances of the present case and in view of the aforesaid judgments of 8 Hon'ble Apex Court, this Court feels that the ends of justice would be served if the appellants/accused are directed to pay compensation of ` 1,00,000-1,00,000/- each, in total ` 2,00,000/- to the injured/victim.
10. Accordingly, the criminal appeal is disposed of by affirming the conviction of the appellants recorded by the trial court under Section 308 of IPC, but the sentence is reduced to the period already undergone by them subject to the condition that each of the appellant shall handover a cheque or bank draft of ` 1,00,000/- (Rupees One Lakh) to the victim or complainant before the trial court within a period of 15 days from the date of their release. In case of failure in payment of compensation within the stipulated time, the appellants shall be liable to undergo imprisonment, as awarded by the trial court. It is made clear that there will be no change in the sentence of fine.
11. Let the appellants be released forthwith, if not required in any other case. Their bail bonds are cancelled and sureties are discharged.
12. Let a copy of this judgment, along with the lower court record, be sent back to the court concerned.
(Lok Pal Singh, J.) 13.12.2017 Rajni