HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved/AFR Case :- CRIMINAL REVISION No. - 775 of 2003 Revisionist :- Smt. [ENTITY] Opposite Party :- State Of U.P. & Others Counsel for Revisionist :- [ENTITY],[ENTITY] Counsel for Opposite Party :- Govt.Advocate,[ENTITY],Miss.[ENTITY] Hon'ble [ENTITY],J.
Heard learned counsel for the parties and perused the record.
The complainant contests revision of judgment and order dated 04.02.2003 passed by the Special Judge/Additional District & Sessions Judge, Siddharth Nagar in [CASE NUMBER]. The learned Judge by the impugned order held the accused-respondents entitled to benefit of doubt and consequently not guilty and acquitted them on the charges under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] [ACT].
The revisionist lodged FIR on 10.10.1998 at 19.25 stating therein, in brief, that over the quarrel between the children of the revisionist and accused-[ENTITY], at about 5.00 p.m. accused [ENTITY] came to her gate reviled and thrashed her with fists, kicks and a stick; on the uproar her husband [ENTITY] came to her rescue; accused-respondents [ENTITY], [ENTITY] and [ENTITY] armed with sticks and farsa also arrived and laid on her husband with intention to kill him; [ENTITY] gave a farsa blow to her husband; [ENTITY], [ENTITY] and many other persons arrived and witnessed the incident; the accused went away, abusing and threatening; her husband received serious injuries; his condition was very serious, and therefore she took him to Government Hospital, Siddharth Nagar and after medical examination of herself and her husband she lodged the FIR.
The prosecution examined the informant-revisionist and her husband [ENTITY]-both injured witnesses, [ENTITY] and [ENTITY] as independent witnesses in addition to the formal witnesses such as Doctor, Investigating Officer, and the Constable clerk. The trial Judge evaluated the evidence. He foundered on doubt and entered the verdict of acquittal.
A perusal of the record shows that the trial Judge laid it too much on some of the aspects of the case such as delay in lodging the FIR and non-reliability of the statements of [ENTITY] and [ENTITY], but at the same time improvement of the version by adding weapons not mentioned in the FIR and plausible inconsistency between oral evidence and medical opinion in regard to injuries.
The informant-revisionist initially states in the FIR that [ENTITY] beat her with fists, kicks and a stick, but at the later stage she says [ENTITY] gave farsa blows to her husband. [ENTITY] has not been shown changing weapons at the spot nor any interragnum is mentioned between initial encounter of [ENTITY] with the informant and [ENTITY] with his associates coming with weapons at the spot. Similarly, in the statements on oath of both the injured witnesses, [ENTITY] has been shown armed with and wielding a bhala. This weapon finds no mention in the FIR nor in the Statements of the witnesses before the Investigating Officer.
Smt [ENTITY], the revisionist sustained three injuries accompanied with swelling caused by hard blunt object and [ENTITY] six injuries including three lacerated wounds, one incised wound and one abraded contusion and one defused traumatic swelling. [ENTITY] states on oath that all the accused beat him with farsa, bhala and sticks specifying that he received bhala injury on his right palm and two farsa injuries on the head, one of them was sustained on the head above the ear.
Learned counsel for the private-respondent contends that the learned Judge rightly held that the injury on the head was not caused by sharp edged weapon such as farsa, as the doctor did not find any incised wound on the head. The injury found on the head was lacerated wound and this contradicts the version of the witness that he was given a farsa blow on the head.
I do not agree with this contention: It is true that sharp edged weapons cause incised wounds and farsa is also a sharp edged weapon. It is also true that weapons which are not used daily or sharpened regularly do not always incise clean cut particularly where some extraneous objects such as hair or synthetic clothes intervene. Besides, the doctors normally do not use nor do they mention in the report they used magnifying glasses to detect the precise nature of injury. The doctor examining the injury must specifically mention if he used magnifying glass in determining the nature of injury. More often than not this is not done, and therefore, as Hon'ble Apex Court has held in a number of cases, oral evidence if found reliable must prevail over the medical opinion. The myth must be exploded that all weapons such as pharsa, axe or other cutting weapons not in daily use must cause clean incised wounds.
The use of bhala does not find place in the FIR nor in the statements of witnesses recorded under [SECTION] [ACT] Although, [ENTITY] deposes that he received bhala injury on his palm and there is a lacerated wound on the palmar side of hand. The version therefore could not have been accepted and the view taken by the trial Judge cannot be thrown out as absurd. It is well settled that where two versions of the case are possible, the one in favour of the accused may be accepted. We, therefore, hold that doubt crept into the case.
In constricted revisional jurisdiction, finding of the lower court cannot be analysed threadware. Besides, they are not liable to be upset unless they are perverse, based upon misreading of evidence, or suffer from any other legal inhibitions. Reference may be made in this regard to constant view of Hon'ble Apex Court in [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; K. [ENTITY]n vs. V.N. Rajan, 2009 (2) ACR 2183 (SC).
In the case of [PRECEDENT], the Hon'ble Apex Court lays down following categories of cases in which the High Court in the revisional jurisdiction can interfere with the findings of acquittal:
i.Where the trial Court has no jurisdiction to try the case, but has still acquitted the accused;
ii.Where the trial Court has wrongly shut out evidence which the prosecution wished to produce;
iii.Where the appellate Court has wrongly held the evidence which was admitted by the trial Court to be inadmissible;
iv.Where the material evidence has been over-looked only (either?) by the trial Court or by the appellate Court; and v.Where the acquittal is based on the compounding of the offence which is invalid under the law.
The informant is doubly battered in the legal battle: first, when the accused got benefit of doubt and secondly, when in this limited jurisdiction this Court refuses to interfere with the findings of acquittal.
Moreover, it cannot be doubted that the accused persons were identifiable to the informant and her husband, because they were their neighbours, who turned adversaries. It can also not be doubted that the informant who received three visible injuries and her husband six and the doctor proving them on oath, and the FIR lodged within reasonable time were beaten in the incident. Obviously, the accused-respondents get benefit of doubt: the injured find themselves in the lurch. If justice is fair and just administration of laws, inequity cannot be countenanced.
Benefit of doubt is a very wide term and has assumed wide connotative allowances from judges at different echelons. But the truth remains, everyone must get his due. Where involvement of accused and injuries caused in the incident are prima facie established and where benefit of doubt creeps for the accused, and as punishment of imprisonment or fine desiderates stringent proof, the victims of violence may be compensated on the assessment of evidence on the principle of preponderance of probabilities.
There may be cases where no reasonable man would infer involvement of an accused in a crime and in such cases the clear acquittal follows. There may also be cases in which guilt of the accused is proved to the hilt, and punishment of imprisonment or/and fine is imposed. But there may be cases where a prudent man would hold the involvement of the accused certain but for occasional lapses, improvement, embellishments or exaggeration the accused cannot be held liable for punishment with imprisonment or fine. In the case in hand the prosecution establishes involvement of the accused persons in the incident in which the informant and her husband received injuries, although it may not be ascertained who caused which injury and with what weapon. In such a case, on the principles of preponderance of probability, the accused may be held liable for making compensation for the injuries that were inflicted at their end.
Justice is the first mandate of the [ACT], and the same informs substratum of State policy. The [SECTION] reads as follows:
'The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.' Perhaps in consonance with this mandate of the State policy Parliament of India enacted and added [SECTION] [ACT] which reads as under:
'[SECTION]. Victim compensation scheme. - (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under [SECTION] is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit."
The compensation is an attribute of civil liability as fine is of criminal liability. But [SECTION] and [SECTION] provide for payment of compensation to the victims of crime. Under [SECTION] [ACT] the compensation must come from fine imposed upon the convict whereas under [SECTION] it comes from the State for the rehabilitation of the victims of the crime. The measure is vindication of the nature of welfare state. The State money is the public money to be utilized rationally for the welfare of the necessitous. The State is however no whipping boy to be traumatized for the wrongs of the known malfeasors. Equity must be adjusted between the parties.
Trauma compounded with ignominy, unless remedied equitably, endures for life. Injustice in the least any where is a threat to justice else where. For the preservation of very existence of an ordered society, equity must permeate legal justice.
The courts have no dearth of jurisdiction to do thorough justice:
In [PRECEDENT] the Hon'ble Apex Court enunciated a principle in the maxim "ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest" which means 'where anything is conceded, there is conceded also anything without which the thing itself cannot exist'. By virtue of this maxim the Hon'ble Apex Court invested power on Magistrate to grant interim maintenance even in the absence of express provision for the same in the statute. Relevant legislation followed in its wake.
Hon'ble Apex Court quoting our law maven underlines as under the need for viable balance between cruelty and recompense.
'More than four decades back [ENTITY], J. speaking for the Court in [PRECEDENT] in his inimitable style said that while social responsibility of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the length of the prison term is no reparation to the crippled or bereaved but the futility compounded with cruelty. Victimology must find fulfilment said the Court, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.'([ENTITY] vs. State of Maharashtra, para 29) (2013) 6 SCC 770.
The Hon'ble Court even favours an inquiry although summary in nature in the case of [PRECEDENT] with a view to sounding paying capacity of the offender.
To meet the exigencies such as one in hand, courts need a paradigm shift in the approach towards victims of the crime, who are entitled to reparation, restitution or compensation for loss or injury suffered by them.
"With modern concepts creating a distinction between civil and criminal law in which civil law provides for remedies to award compensation for private wrongs and the criminal law takes care of punishing the wrongdoer, the legal position that emerged till recent times was that criminal law need not concern itself with compensation to the victims since compensation was a civil remedy that fell within the domain of the civil courts. This conventional position has in recent times undergone a notable sea change, as societies world over have increasingly felt that victims of the crimes were being neglected by the legislatures and the courts alike." Para 34, [ENTITY], (Supra).
Referring to a catena of cases the Hon'ble Apex Court observes:
"Thus, the aforesaid cases clearly reveal that the courts in India have not violated the mandatory [ACT]al requirement, rather they have only issued certain directions to meet the exigencies. Some of them are admittedly legislative in nature, but the same have been issued only to fill up the existing vacuum, till the legislature enacts a particular law to deal with the situation." (Chairman, [PRECEDENT].
Likewise power of the Court to do complete justice cannot be limited on the ground of technicalities. Where Parliament makes provision for granting compensation to the victims of offence on the reference of the Court through the instrumentality of District Legal Services Authority, why cannot the trial court, not lacking inherent jurisdiction, order compensation to be paid by the accused in the same trial according to law providing compensation, where preponderance of probability tips against the accused. The relief of compensation ordained by law under [SECTION] and [SECTION] [ACT] is based on the premise that legislature recognizes, through implicity, in jurisdiction of the Trial Court of a District/Additional District & Sessions Judges' to provide compensation which partakes of Civil Jurisdiction of the Court dealing with a criminal case. In the quandary, jurisdiction of granting compensation may be inferred in the Court that decides the case and the compensation must come from the person or persons who in all probabilities was/were responsible for the injury, and the compensation may be assessed and realised on the line claims in accident cases are awarded. We therefore conclude, and send back this matter to the trial Court, with the direction that the trial Judge after hearing both the parties shall assess the evidence and find on the principle of preponderance of probability if the accused could be held liable for causing injuries to the revisionist and her husband. If he so finds, he shall calculate compensation according to law for the injuries, pain and suffering, and ignominy undergone by the injured and order the same to be paid by the accused jointly or severally within a specific time, and order realisation of the same in case of default in accordance with the relevant provisions under [ACT].
In this vein, the revision stands disposed of.
The registry may in its discretion circulate the judgment among Judges in the subordinate judiciary.
Learned AGA may note.
Order Date :- 4.10.2013/Sazia