Allahabad High Court
Nitha Yadav vs State Of U.P. on 2 September, 2020
Equivalent citations: AIRONLINE 2020 ALL 2216
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 28.08.2020 Delivered on 02.09.2020 Court No. - 42 Case :- CRIMINAL APPEAL No. - 371 of 1992 Appellant :- Natha Yadav and others Respondent :- State of U.P. Counsel for Appellant :- R.D. Singh,Akhilesh Kumar Mishra,Raj Bahadur (AC) Counsel for Respondent :- A.G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. This criminal appeal was initially filed by four appellants, namely, Natha Yadav, Prabhu Nath, Mahendra and Godhan. However, appeal qua to Appellant-2, Prabhu Nath and Appellant-4, Godhan was abated vide order of this Court dated 23.05.2018. Sri Jawahir Yadav, Advocate has appeared on behalf of surviving Appellants-1 and 3.
2. This appeal has been preferred against judgment and order dated 13.02.1992 passed by Third Additional Sessions Judge, Ghazipur in Session Trial No. 344 of 1987 (State vs. Natha Yadav and others), whereby appellants were convicted under Sections 304/34, 323/34 IPC and sentenced for ten years rigorous imprisonment with fine of Rs. 10,000/- and in case of default, sentence of six months rigorous imprisonment under Section 304/34 IPC and six months rigorous imprisonment with fine of Rs. 500/- and in case of default, one month rigorous imprisonment under Section 323/34 IPC.
Prosecution Story
3. As per prosecution case on 16.03.1987 at about 12.30 afternoon the Informant-Paras Yadav was taking water for agriculture purpose from the pumping set of Baijnath Yadav. At that time accused persons came and objected the Informant from taking water. Resultently a scuffle started wherein accused persons started assaulting Informant by Lathi and Stick. During this informant's uncle Baijnath Yadav and his Badi Maa, Smt. Savitri Devi reached there in order to save him but accused persons assaulted them also. The occurrence was witnessed by Murat, Sakin and Ram Das.
4. Immediately thereafter injureds were referred to Primary Health Center, Saidpur, Ghazipur where they were medically examined and a report was also submitted at Police Station Saidpur being Chic No. 41, under Sections 323, 504, 506 IPC. Injured, Baijnath was referred to S.S. Hospital, B.H.U. on the same day and he was admitted in Neurosurgery Ward. However, Baijnath succumb to death during treatment next day (17.03.1987 at 12.20 hours). An information to this was submitted at Police Station Lanka. Panchnama was prepared and post-mortem was conducted of deceased on 18.03.1987 at about 4.00 pm at Lal Bahadur Shastri Hospital, Ram Nagar, Varanasi.
5. The relevant part of injury report and post-mortem report of deceased and injured and Doctor's opinion are reproduced hereinbelow as mentioned in impugned judgment:
"Injury Report of Deceased-Baijnath Yadav ¼1½ QVk gqvk ?kko 2x0.5 ls0eh0 x gM~Mh dh xgjkbZ rd] eLrd ij nk,a rjQ] nkbZ HkkSg ds ckgjh fgLls ij ftlls jDr L=ko gks jgk FkkA ¼2½ QVk gqvk ?kko 2x0.5 ls0eh0 x gM~Mh rd xgjk flj esa nk, rjQ nk, dku ls 8 ls0eh0 Åij ftlesa lwtu lfgr 9 x 4 ls0eh0 FkkA ¼3½ cgqr ls QVs gq, ?kko eLrd ij ckbZ rjQ 10x0.5 ls0eh0 ds {ks= esa ftuesa lwtu 12 x 7 ls0eh0 ds {ks= esa Fkk tks ckbZ HkkSg ds Bhd ckgjh fgLls esa FksA ¼4½ uhyxw fu'kku 10x3 ls0eh0 flj esa ck, rjQ dku ls 4 ls0eh0 Åij ¼5½ [kjkl 2x0.5 ls0eh0 ck, dU/ks ds mijh fgLls ijA ¼6½ [kjkl 2x1ls0eh0 cka, Ldsiwyj jhtu esaA Mk0 ds vuqlkj ;g lHkh pksVsa rkth] dqf.Br gfFk;kj ls igqapk;h x;h Fkh ftuesa pksV ua0&5 vkSj 6 lk/kkj.k Fkh] 'ks"k pksVksa dks fuxjkuh esa j[kdj flj ds ,Dl js dh lykg nh x;h Fkh vkSj jksxh dks mfpr bykt gsrq ftyk vLirky dks funZsf'kZr fd;k x;k FkkA"
"Post-Mortem Report of Deceased-Baijnath Yadav ¼1½ lhyk gqvk ?kko 2x2 ls0eh0 nkfgus vka[k ds ckgjh fdukjs ls yxk gqvk] ?kko lw[kkus dh izfdz;k esa FkkA ¼2½ lw[kus dh izfdz;k esa QVk gqvk ?kko 4x0.1 ls0eh0 [kksiMh ij ihNs dh vksj nkfgus dku dh tM ls 9 ls0eh0 Åij vkSj 8 ls0eh0 vksDlhihVy gM~Mh ds Hkkx ds ÅijA ¼3½ lhyk gqvk ?kko 2-5 ls0eh0 x 2 Vkads yxs gq, nk;sa yykV ij 2 ls0eh0 nkbZ vka[k ds iyd ds Åij&A ¼4½ vusd iiMhnkj fNyk gqvk ?kko tks 12x1.5 ls0eh0 ckgj yykd ij ck, psgjs ij vkSj ck, vka[k ds uhps iyd ijA ¼5½ pksV yxk gqvk lwtu 11x9 ls0eh0 ihNs vkSj ckgj dh rjQ ck;sa dsgquh ij tks dkVus ij ekal isf'k;ksa esa [kwu tek gqvk FkkA ¼6½ cgqr ls fNys gq, lwtu;qDr ?kko 9x10 ls0eh0 ckgj dh rjQ ck;sa dsgquh ij dkVus ij ekal isf'k;ksa esa [kwu tek gqvk FkkA ¼7½ iiMhnkj fNyk gqvk ?kko 4x2 ls0eh0 ck;s dU/ks ds Åijh Hkkx ijA vkUrfjd ijh{k.k esa [kksiMh [kksyus ij ?kko 1] 2 vkSj 3 ekStwn Fks] f>fYy;ksa esa pksVsa Fkha] efLr"d dh f>fYy;ksa esa [kwu dk cgko T;knk Fkk vkSj f>fYy;ksa esa [kwu tek gqvk Fkk ] fnekx ds uhps okys Hkkx esa [kwu tek gqvk Fkk] nkfgus [kksiMh vkSj chp okyh [kksiMh esa VwVk gqvk ?kko VsEijy gM~Mh ij ekStwn Fkk] fny 300 xzke nksuksa rjQ [kwu ls vk/kk Hkjk gqvk Fkk] vkek'k; esa 200 xzke tek gqvk [kwu ekStwn FkkA Mk0 ds vuqlkj e`R;q dk dkj.k csgks'kh Fkh tks lj dh pksV ls igqapk;h x;h FkhA"
"Injury Report of Injured-Paras Yadav ¼1½ QVk gqvk ?kko 4x0.5 ls0eh0 gM~Mh rd xgjk] flj ds ihNs dh fgLls ij ckbZ rjQ dku ls 6 ls0eh ihNs] ;g pksV lwtu ls f?kjh gqbZ Fkh vkSj lwtu dk vkdkj 4 x 4 ls0eh0 Fkk] ftlls jDr cg jgk FkkA MkDVj dh jk; esas ;s pksVsa rkth Fkh fdlh l[r vkSj dqUn cLrq }kjk igqapk;h x;h Fkh vkSj fuxjkuh esa j[kdj flj ds ,Dl&js dh lykg nh x;h FkhA"
"Injury Report of Injured-Savitri Devi ,d QVk gqvk ?kko 1x0.5 ls0eh0 [kky rd xgjk ck, mijh ckg ds chp ds fgLls esa ckgj dh vksj vk;h Fkh] ;s lwtu ls f?kjk Fkk o jDr L=ko gks jgk FkkA ;s pksV lk/kkj.k vkSj dqUn ,oa l[r oLrq }kjk rkth igqapk;h x;h Fkh"
Charge
6. After completion of investigation charge sheet was submitted and charges under Sections 304/34, 323/34 IPC were framed against all the accused, to which they denied and claimed trial.
Prosecution Witnesses
7. In support of its case prosecution examined, in all, eight witnesses, namely, Paras Yadav, Complainant (PW-1); Ram Murat, eye witness (PW-2); Dr. R.C. Singh (PW-3); Jai Prakash Yadav, eye witness (PW-4); Constable Muhammad Wazir Khan (PW-5); Sub-Inspector, Surya Mani Tiwari (PW-6); Dr. K.M. Tiwari (PW-7); and, Sub-Inspector, Prem Chandra Misra (PW-8).
8. PW-1, injured witness, Paras Yadav, supported the case of prosecution in his statement and submitted that there was prior enmity between deceased and accused persons, as deceased has lodged a complaint dated 31.07.1974 wherein accused persons were named. He further mentioned that accused, Mahendra objected him from taking water for the purpose of agriculture and he assaulted him by fist blow at the right side of rib. Hearing noise other accused persons came and accused, Prabhu Nath caused lathi blow on the left side of head of PW-1 and when deceased, Baijnath Yadav and his wife, Savitri Devi came, accused Mahendra assaulted them by brick and other accused by lathi.
9. PW-2, Ram Murat, who is an eye witness and lived around 1.5 kms away from the place of occurrence, supported the case of prosecution as well as statement made by PW-1. Similarly, PW-4, Jai Prakash Yadav, who is also an eye witness, supported prosecution case as also the manner of assault. Medical report as well as post-mortem report are proved by Dr. R.C. Singh (PW-3) and Dr. K.M. Tiwari (PW-7) respectively. The other witnesses are formal in nature.
10. After prosecution evidence was over, accused persons recorded their statement under Section 313 Cr.P.C. wherein surviving accused-Mahendra has said that it was a scuffle between young boys, details of which are unknown to him. Other surviving accused, Natha, after denying prosecution case has said that scuffle started as the injured witness, Paras was taking water by dismantling Khadanja (Road) and when accused, Mahendra objected, he was assaulted by Paras, Baijnath, Savitri and Jai Prakash of complainant side and in self defence accused also assaulted by using lathi. In support of their defence, DW-1, Satya Prakash, Pharmacist at Samudayik Swasthya Kendra, Saidpur said that injured accused persons were examined at said Samudayik Swasthya Kendra.
Impugned Judgment
11. The Trial Court after considering the evidence and other material on record convicted and sentenced the accused-appellants as mentioned above. Trial Court has come to the conclusion that accused persons jointly in furtherance of their common intention caused such bodily injury with the knowledge that it is likely to cause death and thereby convicted accused-appellants with the aid of Part II of Section 304 IPC. Trial Court has also come to the conclusion that there was no motive and injuries caused to accused persons were not self inflicted. Though the prosecution has not able to explain the injuries caused to accused persons but it would not itself fatal to prosecution story. Trial Court has relied upon the statement of injured witness in toto.
12. Sri Jawahir Yadav, learned counsel appearing for surviving appellants submitted that, Natha Yadav and Mahendra are in jail since 13.08.2020 in compliance of order passed by this Court whereby non-bailable warrants were issued. He submits that Appellant-1, Natha Yadav is aged out 95 years old and Appellant-3, Mahendra is aged about 70 years old. Both are not well and suffering from serious ailments. He submitted that on the basis of evidence of injured witness PW-1 and the conclusion of Trial Court that accused persons were also injured, it is a case of sudden provocation and considering the age of applicants, the incident is of the year 1974, i.e., about 33 years back, in case this Court come to the conclusion that Trial Court's judgment is correct, the sentence may be modified to the extent of period already undergone and fine only.
13. State is represented by A.G.A., who also supported the judgment passed by Trial Court and submitted that sentence awarded is adequate considering principles of sentencing.
Discussion
14. I have scanned the evidence on record. It has come in the evidence of injured witness PW-1 as well as eye witnesses that scuffle started due to objection made by accused-Mahendra, when PW-1, Paras was taking water for agriculture purpose and the attack was sudden without any premeditation. Trial Court has admitted that accused persons were also injured.
15. Prosecution case is rest entirely on the evidence of injured witness, PW-1 (Informant), and eye witnesses PW-2 and PW-4. In substance these witnesses have stated that initially a scuffle took place between injured witness PW-1 and accused-appellant 3, Mahendra on an issue of taking water from pump set for agriculture purpose, in which accused, Mahendra assaulted injured witness Paras by fist blow. On raising alarm deceased, Baijnath Yadav and his wife, Savitri came at the place of occurrence and meanwhile other accused joined accused, Mahendra and jointly assaulted Paras (informant), Baijnath Yadav (deceased) and Savitri. Baijnath Yadav succumbed to injuries on the next day of occurrence. Both Paras (PW-1) and Savitri (not examined) suffered injuries. No prior motive is proved by the prosecution.
16. From the evidence on record and considering nature of injuries coupled with the fact that accused have also suffered injuries, it is a case of sudden fight/ quarrel without per-meditation and without any undue advantage or action in a casual or unusual manner. No deadly weapon was used. In totality of circumstances, it is a case which falls under Section 304 Part II IPC, i.e., an act which is done with the knowledge that it is likely to cause death but without any intention to cause such bodily injury as it likely to cause death. Therefore, the Trial Court has rightly convicted the appellants under Section 304 Part II and 323/34 IPC and there is no error in the judgment so far as conviction is concerned.
17. Now I proceed to deal with the issue of quantum of punishment. Section 304 Part II provides sentence of imprisonment of either description for a term which may extend to ten years, or with fine or with both. The Trial Court has sentenced accused-appellants for ten years rigorous imprisonment with fine of Rs. 10,000/- and in case of default, sentence of six months rigorous imprisonment under Section 304/34 IPC and six months rigorous imprisonment with fine of Rs. 500/- and in case of default, one month rigorous imprisonment under Section 323/34 IPC.
18. Apex Court in Gurmukh Singh vs. State of Haryana (2009) 15 SCC 635 has discussed some factors which required to be taken into consideration before awarding sentence to the accused, which are, motive or previous enmity, whether the incident had taken place on the spur of the moment without premeditation in a sudden fight with intention/ knowledge of the accused while inflicting blow or injury, death is caused instantaneously or after several days, gravity, dimension and nature of injury, nature and size of weapon etc.
19. As discussed earlier in the present case there was no motive, incident had taken place in spur of moment without premeditation in a sudden fight, no deadly weapon was used, no unfair or undue advantage was taken, coupled with the fact that incident is of the year 1987, surviving accused-appellants, Natha Yadav and Mahendra, are aged about 95 and 70 years old respectively, who are suffering with old age ailments, and considering over all facts and circumstances of the case, in the interest of justice the sentences imposed by Trial Court of ten years rigorous imprisonment under Section 304/34 IPC and six months rigorous imprisonment under Section 323/34 IPC is modified to sentence undergone, however fine of Rs. 10,000/- is remain unaltered.
Re : Compensation
20. Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.
21. Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:
"11. .....Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation."
"31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay."
"54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision."
22. In the result, appeal is partly allowed. Judgment and order dated 13.02.1992 passed by Third Additional Sessions Judge, Ghazipur in Session Trial No. 344 of 1987 (State vs. Natha Yadav and others), is hereby modified to the extent that period of imprisonment is confined to the period already undergone and sentence of fine of Rs. 10,000/- remained unaltered, provided that surviving Appellants No. 1 and 3, shall pay Rs. 15000/- each to the injured witness, Paras Yadav towards compensation or deposit the same with concerned Court within eight weeks after their release from jail. In case the compensation is deposited before the Court, it will ensure timely payment to injured witness, Paras Yadav. In case compensation is not paid or deposited, as directed above, Appellants No. 1 and 3 have to serve remaining sentence.
23. Appellants-1 and 3, Natha Yadav and Mahendra are in jail. They shall be released forthwith, if not wanted/required in any other matter. Their bail bonds are cancelled and sureties discharged.
24. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
Order Date :- 02.09.2020 AK