HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:- 27.09.2019 Delivered On:- 26.11.2019 Case :- CRIMINAL APPEAL - 3208 of 2009 Appellant :- [ENTITY] And Another Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble [ENTITY], J.
1. Heard Sri [ENTITY], counsel for the appellant, Sri [ENTITY] and Sri [ENTITY], learned Additional Government Advocate for the State.
2. Appellants, [ENTITY] son of [ENTITY] and [ENTITY] son of [ENTITY], have filed this Criminal Appeal against the judgment and order dated 19.05.2009 passed by Special Judge, E.C. Act/ Additional Sessions Judge, Mainpuri in [CASE NUMBER] convicting and sentencing the appellants under [SECTION] read with [SECTION] [ACT] to seven years rigorous imprisonment along with fine of Rs. 10,000/- each. On failure to deposit the fine they have been directed to undergo six months further imprisonment. They have also been sentenced to three months simple imprisonment and fine of Rs. 500/- each under [SECTION] [ACT]. On failure to deposit the fine they have been directed to undergo further imprisonment of one month. All the sentences have been directed to run concurrently.
3. The prosecution case is that on 09.03.1999 at 8 p.m the goats of accuseds entered in the house of the informant, Smt. [ENTITY] and was causing harm. When [ENTITY] went to the house of accuseds complaining about their goat they caused injuries to Smt. [ENTITY], [ENTITY], [ENTITY] and Smt. Shri [ENTITY]. Regarding this incident N.C.R. under [SECTION], [SECTION] [ACT] was got registered. Four persons from the side of the informant got injured and one of them, namely, Shri [ENTITY], died on 11.03.1999 and case was converted for the offences under [SECTION] and [SECTION] [ACT].
4. The post-mortem of the dead body of the deceased was conducted. The investigation was conducted by the Investigating Officer and he recorded the statements of the witnesses. Charge sheet was submitted against the appellants.
5. Charges were framed against the accuseds by the trial court under [SECTION] and [SECTION] [ACT]. The accuseds denied charges and sought trial.
6. P.W.-1, [ENTITY], who herself was injured and was daughter of the deceased who examined as P.W.-1. P.W.-2, [ENTITY], who was also injured and was son of the deceased was examined as P.W.-2. [ENTITY], who was the son-in-law of the deceased and husband of P.W.-1 was examined as P.W.-3. All the aforesaid witnesses stated that on 09.03.1999 at about 8 p.m the goats of the accuseds entered their house and when P.W.-1 went to the house of the appellants to complain she was beaten by lathis. The other injureds, P.W.-2 and P.W.-3 were also beaten by the appellants and other accuseds. The deceased, [ENTITY], was also caused injuries and it proved to be fatal. P.W.-4, Dr. [ENTITY], who initially examined the deceased stated in his cross-examination that the injury on the head of the deceased was simple in nature and would not have resulted in her death. P.W.-7, Dr. [ENTITY], who conducted the post-mortem of the deceased stated that she died on account of hemorrhage and anti-mortem injuries.
7. The accused-appellants were examined under [SECTION] [ACT] and they denied the incident and alleged false implication. They further stated that they were also beaten by the prosecution side but their medical examination was not promptly conducted by the police. The deceased was beaten by the prosecution side on the impression that she is the mother of the appellants and they did not caused any injury to her.
8. In documentary evidence the defense brought on record the non-congnizable report lodged by the appellant no. 1, [ENTITY], against the husband of the deceased, her son, [ENTITY], son-in-law, [ENTITY] and daughter, [ENTITY], under [SECTION] and [SECTION] [ACT]. Their injury reports were also filed in evidence.
9. After going through the evidence on record trial court came to the conclusion that since P.W.-1, P.W.-2 and P.W.-3, are the injured witnesses and have suffered injuries thus the allegations against the appellants are correct. The trial court further found that the death of the deceased took place on account of the injuries caused by the appellants and found the offence under [SECTION] read with [SECTION] [ACT] and [SECTION] [ACT] fully proved against them.
10. Counsel for the appellant, has submitted that no specific role was assigned to the appellants of causing injuries to any of the injureds nor any deadly weapons are alleged to have been used by them. There is no independent witness of the incident which took place at about 8 p.m in the night. There is no motive assigned to the appellants for causing the alleged offence. Place of occurrence has not been proved. P.W.-1 has not mentioned the date of occurrence in her statement.
11. P.W.-4, Dr. [ENTITY], has stated the injuries to all the four injureds were simple in nature and death was not possible by such injuries. P.W.-7, Dr. [ENTITY], stated that the injuries to deceased could have been caused by falling on a pointed rock. The prosecution failed to explain the injuries suffered by the appellants and as to how they were injured and therefore the prosecution has failed to prove its case beyond reasonable doubt. Reliance has been placed on the judgment of the Apex Court in the case of [ENTITY] and others vs State of Bihar (1976) 4 SCC 394, and the case of [ENTITY] & others vs. State of Punjab, 2008 CriLJ 1651. The prosecution case is of free fight between both the parties wherein both sides suffered injury. The prosecution was required to prove which party was the aggressor and who inflicted the injuries in the alleged offence. The appellants are entitled to benefit of doubt and acquittal in this case.
12. Learned Additional Government Advocate has opposed the arguments advanced on behalf of the appellants and has stated that the parties were well known to each other and therefore there was no dispute regarding the incident taking place at night at about 8 p.m. Both the sides knew each other well by name and therefore there is no question of any dispute regarding the identity of the accuseds. The non assignment of any specific role to any of the accused cannot be said to be fatal to the prosecution case since the appellants have been convicted for offence under [SECTION] [ACT] read with [SECTION] [ACT]. Their common intention is proved from material on record in causing the alleged crime. No benefit of the statement of P.W.-4, who found the injury of the deceased and other injured to be simple, can accrue to the appellants. P.W.-7, found that the death of the deceased was caused from bleeding from head injury. The place of incident was the house of the appellants themselves where the injureds went to complain about the entry of the goats of the appellants in the house of the injureds.
13. The reliance on the judgment in the case of [ENTITY] and another (Supra) and [ENTITY] and other (Supra) have been stated to be misconceived. It has been stated that in the case of [ENTITY] vs. State of U.P., (2004) 7 SCC 408 the Apex Court has clarified that the non-explanation of the injuries suffered by the accused by the prosecution side is only one circumstances whcih has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution witnesses are partial and interested, non-explanation of serious injury may affect the credibility of the witnesses, but where the witnesses are not so the benefit of this principle will not go to the accused.
14. After hearing the rival contentions this court finds that the trial court has found that there were injuries on the body of the accused, [ENTITY], appellant no. 1, [ENTITY] and another accused, Smt. [ENTITY]. The trial court also found that both the sides caused injuries to each. It has also been noted that the non-cognizable report was lodged by the appellant's side against the other side. The Apex Court in the case of [ENTITY] and another (Supra) has held in paragraph 12 as follows:-
"This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the pre-sent case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In [PRECEDENT] decided on April 25, 1975 : which was also a murder case, this Court, while following an earlier case, observed as follows:
In [PRECEDENT] decided on March 19, 1975 : ) one of us ([ENTITY], J., speaking for the Court, observed as follows:
In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant [ENTITY] received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in [PRECEDENT] decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.
15. Similarly in the case of [ENTITY] and another (Supra) the Apex Court has relied upon the judgment of [ENTITY] and another (supra) and passed the judgment and order of acquittal, where the prosecution had failed to prove the injury on the person of the accused but the High Court brushed aside the infirmity in the prosecution case regarding non-explanation of injury sustained by the accused.
16. In the present case, the prosecution witnesses of fact, P.W.-1, daughter of deceased, P.W.-2, son of the deceased and P.W.-3, the son-in-law of the deceased, all are interested and also partisan witnesses. There is no independent witness of the crime. The manner of the incident indicates that when the goats of the appellants entered the house of the prosecution side, the appellants are alleged to have gone to the police to make complaint. Prosecution alleges, that the appellants caused injuries to them. Significantly, the prosecution has failed to explain how the appellants and other co-accuseds, Smt. [ENTITY] and [ENTITY], suffered injuries. The time and date of incident is the same as clear from non-cognizable report lodged by the appellant against the prosecution side, therefore, the prosecution was required to explain how the injuries were caused to the defense side. There is no explanation whatsoever submitted by the prosecution side.
17. The judgment of the Apex Court in the case of [ENTITY] (Supra) relied upon learned Additional Government Advocate provides in paragraph 19, as follows:-
" The injuries of serious nature received by the accused in the course of the same occurrence would indicate that there was a fight between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision. It is here that the need to explain the injuries of serious nature received by the accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Ultimately, the factum of non-explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non-explanation of serious injuries may prima facie make a dent on the credibility of their evidence. So also where the defense version accords with probabilities to such an extent that it is difficult to predicate which version is true, then, the factum of non-explanation of the injuries assumes greater importance. Much depends on the quality of the evidence adduced by the prosecution and it is from that angle, the weight to be attached to the aspect of non-explanation of the injuries should be considered. The decisions abovecited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version."
18. The injuries suffered on the accused sides are as follows:-
Injuries of Sri [ENTITY] are as follows- (1) Lacerated wound on left side of the face, 1.00 cm lateral to the eye, size - 0.5 cm x 0.5 cm x muscles deep. (2) Abrasion on lateral surface of the ankle joint lateral, size- 1.00 cm x 1.00 cm colour red.
Injuries of Sri [ENTITY] are as follows- (1) Lacerated wound on right eyebrow, size - 1.00 cm x 0.5 cm x muscles deep. (2) Lacerated wound on right side of the head, 5.00 cm above to the ear, size- 2.00 cm x 0.5 cm x scalp deep. (3) Contusion on anterior surface of the left knee joint, size- 5.00 cm x 2.00 cm colour red.
Injuries of Smt. [ENTITY] are as follows - (1) Lacerated wound on lateral side of the fore head, 1.00 cm above to the eyebrow, size-1.00 cm x 0.5 cm x muscles deep. (2) Abraded contusion on left side of the face, just below to the eye, size - 3.00 cm x 1.00 cm colour red.
19. In the present case due to non-explanation of injuries on the person of the appellant no. 1, Smt. [ENTITY] and [ENTITY], by the prosecution their case does not comes under doubt as held in the case of [ENTITY] (supra). Clearly all the injuries of the defense side are simple and not serious. Their non-cognizable report was lodged not on the date of incident but on the next day injury reports were thereafter prepared. None of their injuries are on vital parts of the body. The factum of death of Smt. Shri [ENTITY] is proved and the injury was caused to her by the appellants has also been proved. Hence the offences under [SECTION] [ACT] and [SECTION] [ACT] stand proved against the appellants.
20. However the incident is of the March, 1999. More that 20 years have lapsed. Sending the appellants to jail again at this stage does not appears to be justified. The age of appellants is about 65 and 62 years respectively.
21. The Hon'ble Supreme Court has urged all the Courts time and again to exercise the power under [SECTION] [ACT] 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 [PRECEDENT] the Supreme Court urged all courts to exercise their power under [SECTION] [ACT] 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 [SECTION], [SECTION] and [SECTION] of [ACT] read with [SECTION] 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 [SECTION] [ACT], but maintained their conviction under [SECTION] [ACT]. 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 [SECTION] [ACT] 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 [PRECEDENT], 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 [SECTION] [ACT] 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 [PRECEDENT] 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 [PRECEDENT]. [PRECEDENT] 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 [PRECEDENT], 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. [PRECEDENT] in this case, the appellant was found guilty for the offence punishable u/[SECTION] and [SECTION] [ACT]. 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. [PRECEDENT] - The appellant was found guilty for the offence punishable u/[SECTION] [ACT] and [SECTION] [ACT] and was sentenced to five years' imprisonment u/[SECTION]. 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.
31. [PRECEDENT] - in this case appellant [ENTITY] was found guilty for the offence punishable u/[SECTION] [ACT], 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/-.
32. [PRECEDENT] - in this case the appellants were found guilty for the offences punishable u/[SECTION] r/[SECTION] [ACT]. 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.
33. [PRECEDENT] - 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/[SECTION] and [SECTION] [ACT] and so each was sentenced to pay fine of Rs. 2,000/- u/[SECTION] [ACT] and Rs. 4,000/- u/[SECTION] [ACT].
34. [PRECEDENT], - the trial Court and the appellate Court have convicted the five revisionists for the offences punishable u/[SECTION] and [SECTION] and were sentenced to R.I. for one year u/[SECTION] and [SECTION] u/[SECTION] [ACT]. In revision this court converted the conviction into [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] 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.
35. [PRECEDENT], - in this case the appellant was convicted for the offence punishable u/[SECTION] [ACT], 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.
36. Having an overall consideration of the fact situation and also time lag in between, the court is of the view that sentence of imprisonment of revisionist for offence under [SECTION] [ACT] is converted into fine of Rs. 1,50,000/- which shall be paid to the legal heirs of the deceased, Shri [ENTITY], as compensation. The appellant, [ENTITY] and [ENTITY], are directed to deposit Rs. 75,000 (Seventy five thousands) each before the trial court within within two months from the date of this judgment and on receipt of the amount same shall be released in favour of the legal heirs of the deceased, Shri [ENTITY]. Any amount deposited towards fine by the appellants shall be adjusted. In case of failure of deposit of the amount by the appellants shall be taken into custody and they shall serve out the remaining sentence as per the order of the trial court.
37. The judgment and order of the trial court is set aside. The appellants are on bail. Their bail bonds and sureties are discharged.
38. The office is directed to send back the record of the court below along with copy of this judgment and order for compliance.
39. This criminal appeal is allowed.
Order date: 26.11.2019 Rohit