HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

RESERVED

Case :- CRIMINAL APPEAL No. – 4721 of 2010

Appellant :- Manoj Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Anil Kumar Aditya,Ajay Kumar Pathak,Avanish Kr. Shukla,Gaurav Kakkar,Mithilesh Kr. Shukla,Prakash Chandra Srivastav

Counsel for Respondent :- Govt. Advocate,A.G.A.

Hon’ble Pradeep Kumar Singh Baghel,J.

1. This is an appeal in which two unmarried sisters are victims of acid attack. The accused-appellant has preferred this criminal appeal against the judgment and order dated 07.07.2010, passed by Sri Nalin Kant Tyagi (HJS) Aditional District Sessions Judge, F.T.C.-II, Hathras, in Sessions Trial No. 326 of 2007 (State vs. Manoj), registered as Case Crime No. 90 of 2006 under Sections 326, 307 and 506 I.P.C., Police Station Hathras Junction, District Hathras, whereby the accused-appellant has convicted and sentenced to undergo rigorous imprisonment for seven years under Section 307 I.P.C. along with a fine of Rs. 2,000/-. He was found guilty under Section 326 I.P.C. and was sentenced for 10 years rigorous imprisonment along with fine of Rs. 2,000/- as fine and under Section 506 I.P.C., he was further sentenced for 6 months’ rigorous imprisonment and Rs. 1,000/- as fine. It was directed that all the sentences will run concurrently and in case the total fine of Rs. 5,000/- is not deposited, the accused will further undergo six months’ additional imprisonment.

2. The version of the prosecution as noticed by the trial court is that; two victims of acid attack namely Anita and Rekha Rani are real sisters. At the time of incident, they were aged about 20 years and 19 years respectively. On 18.05.2006 at about 04:30 A.M., Anita and Rekha Rani were sleeping in front of their house which is appurtenant land adjacent to the public path. Their father Kehar Singh wake up them, thereafter he went to feed his cattle which was his daily routine. But the victims remained in their bed. After some time, the accused Manoj who is their next door neighbour came near the cot on which both the girls were sleeping, he pulled the sheet by which they had covered their bodies and he splashed a liquid (acid) on their faces. He was carrying acid in plastic container. After the incident, he fled from the spot.

3. On falling of that liquid, Anita received severe burn injuries on her face, eyes, neck, chest, hands and legs. She also received burn on her clothes. Her sister Rekha Rani also who was sleeping beside her, at the same cot, also received injuries.

4. When Anita cried out to call upon her father, their neighbours namely Arvind Singh, Vasudeo Singh, Smt. Sunita, Chandra Pal Singh who were going to attend the call of nature, seen the accused Manoj while fleeing from the spot. Kehar Singh took the girls to the police station and lodged the first information report at Police Station Hathras Junction.

5. The injured Anita and Rekha Rani were sent to the Bagala Civil Hospital, Hathras by the medical officer at 06:20 and 06:35 in the morning. Anita has received severe burn injuries of first and second degrees at her face, neck, chest, both arms and legs. She had also received burn injuries in her eyes, hence, she was referred to eye specialist. Injuries received by Rekha Rani were also of first and second degree at her face, neck chest, stomach, both the eyes, arms and legs and in the above the knee, near the pelvic area.

6. Anita was referred to S.N. Medical College, Agra and her eyes were also found severely burn. There was injury in her cornea and eyes membrane was also affected. Later, they received their treatment at Prem Raghu Hospital, Agra Road.

7. Somveer Singh, Sub Inspector Police was entrusted the investigation who recovered a plastic container in which the accused had carried acid and he also recovered an acid container from the house of accused. Some other objects were also made exhibit by him.

8. On completion of the investigation, charge sheet was sent to the court of learned Magistrate. The learned Magistrate framed charges for the offences punishable under Sections 326, 307 and 506 I.P.C. against the appellant. The appellant pleaded not guilty and claimed trial.

9. The prosecution examined nine witnesses.

10. On committal of the case by the learned Magistrate on 25.05.2007, the learned Sessions Judge framed charges against the accused under Sections 326, 307 and 506 I.P.C. The trial court on considering and appreciating the entire evidences and after hearing the arguments of both the parties held the appellant guilty. The Court found that the appellant has thrown acid on Anita and Rekha Rani resulting severe acid burn injuries on their persons.

11. I have heard the learned counsel for the parties.

12. Learned counsel for the appellant has submitted that the prosecution has failed to prove the offence under Sections 307 and 326 I.P.C. beyond reasonable doubt. The trial court has misdirected itself in holding the accused guilty for offence punishable under Section 326 I.P.C. and its finding are wholly untenable and perverse on account of which the result is grave injustice to the appellant.

13. He further submitted that the trial court has seriously erred in not taking into consideration the discrepancy in statements of prosecution witnesses. He has pointed out the contradictions amongst the statements of PW-2 Anita, PW-3 Kehar Singh and PW-6 Arvnnd. He has pointed out that PW-2 has stated that main entrance of the house is towards north whereas in the map prepared by the I.O., the entrance has been shown to the facing east. Learned counsel for the appellant has drawn the attention of the Court through the entire evidence on record as a result it is urged that the accused is not guilty and he has been falsely implicated due to strain relations between the neighbours. Learned counsel for the appellant next submitted that the prosecution witnesses are interested witnesses. He has pointed out certain discrepancies in their statements, hence, the statements of the prosecution witnesses are unworthy of credence.

14. Learned counsel for the appellant has lastly urged that the appellant has already undergone more than six years in incarceration and as such this Court may modify the sentence and award the punishment already undergone by him. He has placed reliance on a judgment of this Court in Amit Kaushik vs. State of U.P. 2017 Law Suit (All) 196., Ramesh Prasad Yadav vs. State of U.P., 2016 (94) AllCriC page 710. A Division Bench of this Court in Nand Kishore @ Sheth Pasi vs. State of U.P., Laws (All) 2014 8 268.

15. Learned A.G.A. has submitted that the discrepancies pointed out by the learned counsel for the appellant are minor and has no relevance in view of the fact that both the injured victims Anita and Rekha Rani in their statements has narrated the incident graphically and there is no inconsistency in their statements. Learned A.G.A. has placed reliance on the judgment of the Supreme Court in the cases of (1973) 3 SCC 881, Ramlagan Singh and Others vs. State of Bihar; (1975) 3 SCC 311, Malkhan Singh and Another vs. State of Uttar Pradesh and (2009) 9 SCC 719, Jarnail Singh and Others vs. State of Punjab.

16. I have considered the rival submissions and perused the material on record.

17. Before adverting to the evidence and submissions advanced by the learned counsel for the parties, at this stage, it would be fruitful to notice to the principles of law relating to testimony of injured and interested witness and discrepancies in the statements of the witnesses.

18. The supreme Court in the case of Chikkarangaiah and Others vs. State of Karnataka, 2009 (17) SCC page 497 has held that ordinarily an injured witness would name a real assailant and could not implicate falsely those who were not assailant. the relevant part is extracted herein below :-

“46. That being the position, we find no reason why an injured witness instead of giving the name of real assailants would unnecessarily implicate other people falsely who was not the real assailants. There is no reason to disbelieve and discard the evidence of PW-6 who though did not speak about the main incident with respect to the assault on the deceased but clearly stated that while he was going to the bus stop he was assaulted by 8 accused namely A-3, A-12, A-11, A-13, A-10, A-1, A-9 and A-21. The trial Court acquitted these 8 accused on the ground that the presence of PW-6 at the scene of occurrence immediately after the occurrence is doubtful. The trial Court gave the benefit of doubt to the accused, since PW-6 did not give the names of each of the accused individually before the Doctors (PW-13 and PW-14). However, it failed to consider the fact that it was not possible for PW-6 to give the name of the each of the accused individually since he had clearly mentioned A-3, A-13 and “others”. The word “others” clearly indicate that he knew their identity that is why when he was examined by the Police after the occurrence on the very next day he gave the names of all the 8 accused which was supported by his evidence in the Court. ”

19. Same view has also been taken in Brahm Swaroop and Another vs. State of Uttar Pradesh, 2011 (6) Supreme Court Cases page 288, the relevant part is extracted herein below :-

“28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. “Convincing evidence is required to discredit an injured witness”. (Vide: State of U.P. v. Kishan Chand Ors., (2004) 7 SCC 629; Krishan Ors.v. State of Haryana, (2006) 12 SCC 459; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC 270; Jarnail Singh Ors. v. State of Punjab, (2009) 9 SCC 719; Vishnu Ors. v. State of Rajasthan, (2009) 10 SCC 477; Anna Reddy Sambasiva Reddy Ors. v. State of Andhra Pradesh, AIR 2009 SC 2661; and Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673). ”

20. In the light of the principles laid down in the above mentioned cases, indisputably, the victims Anita and Rekha Rani has received serious acid burn injuries. Their father had lodged the first information report without any delay. The incident has taken place at about 04:30 A.M. and the first information report was promptly lodged at 06:10 A.M. The distance from the place of occurrence and the police station was about 10 Kms. In the first information report, their father has mentioned the witnesses names of his neighbour who had seen the accused running from the spot.

21. The evidence of victim Rekha Rani and Anita who were injured witnesses and PW-6 Arvind who was the neighbour and who came to spot immediately after the incident has established the charges against the accused that on the date of incident, the accused poured acid on the victims and they received serious burn injuries on all over their bodies and clothes.

22. From the medical report it is also established that Anita’s entire face was burnt, her eyes were also affected. She has also received injuries on her neck, hands, left arm, abdomen and both thighs. The nature of injuries clearly indicate that acid was thrown on their faces from a close quarter. The presence of the father of victims namely Kehar Singh and Arvind who was one of the witness PW-6 at the spot has been established. The house of Arvind is across the road in front of the victims’ house and Kehar Singh was also near the spot as he was feeding his cattle.

23. Before considering the statements of PW-1 and PW-2 Rekha Rani and Anita it is apt to note that both the victims have been cross-examined at great length by the accused and careful analysis of their statements, clearly proved the charges against the accused.

24. PW-1 Rekha deposed that on 18.05.2006, she was sleeping with her sister Anita in front of her house. At about 04:30 A.M., the accused who is their neighbour came and pulled the sheet from their head and said that “you think yourself to be beautiful, today, I will kill both of you” and immediately, he with intention to kill them, poured the acid on their faces. Both the sisters sustained grievous injury and they cried to pain. At this, her father Keran Singh, Giriraj Kishore and Sunita had seen accused fleeing from the spot. Arvind Kumar and Veer who were going to ease themselves had also seen him fleeing from the spot. She further stated that on the occasion of ‘Dwij’ when she was returning with her sister-in-law, he suddenly started abusing them and misbehaved, then she had beaten up him. She had informed her father about this incident. Her father had made a complaint to the parents of Manoj. She has also stated that at about 20 to 15 minutes before the incident both of them wake up by their father. When acid were thrown on her face, her eyes got closed and before that she had recognized Manoj when he pulled the sheet from their head before pouring acid. After the said incident she was taken to the hospital at Nangla and from their they have taken them to Agra.

25. Anita PW-2 in her statement has reiterated the same incident. It is stated that her father had awaken them at 04:30 A.M. and thereafter, he went for feeding the cattle. She had very clearly recognized Manoj who had covered his face and he was wearing pant and shirt. He pulled the Chader and poured the acid on us. After the acid was thrown on her, she became unconscious. She was admitted in the hospital for 12 to 14 days.

26. PW-3 is Keran Singh, who has stated that at 04:30 A.M. his both daughters were sleeping outside the house and since his house is adjacent to the road, they usually wake up early in the morning. After getting them awake, he went to feed his cattle. At that time his neighbour (the accused) came and poured the acid on the faces and bodies of his daughters and thereafter, he ran away. He has further stated that while he was fleeing, one Arvind Kumar, Veer Singh, Sunita and Girija Kishore had also seen him. He has also stated that before taking the girls to the hospital, they had gone to the police station. His neighbours Dr. Lakhan Singh, Arvind and Babloo had taken his daughters to the hospital on a jeep.

27. PW-4 is Dr. S.K. Satsangi who has deposed that on 18.05.2006 his duty was in the eye department, Room No. 2 of out door. On the said date Anital Kumari was brought to him at 11:30 A.M. She was referred to Nagala Hospital to Medical College. After examination of her eyes, he deposed that swelling was found in both of her eyes and there was scratches too. Inside her eyes also there was swelling in the membrane and retinas. There was wound in the cornea. Further examination could not be done as her cornea was hazy. Her visibility was very limited and she could only count the fingers. In his opinion, the said injury was caused due to acid burn and no opinion could have been given at that time regarding recovery of her eye side. He has proved the medical report prepared by him.

28. PW-5 Dr. Shishir had stated that on 18.05.2006, he had examined Rekha, daughter of Keran Singh who had sustained injuries. Her burn injuries were first and second degree and her face and neck were effected. Another part of the body as chest, thigh and knee were also injured by some corrosive substance. The injuries were fresh. He further stated that on the same day, at 06:35 hrs., he also examined Anita, the daughter of Keran Singh. Her burn injuries were also first and second degree on face and neck and eyes. She has received grievous injuries in the eyes also, hence, he has referred the matter to the Medical College. Her injuries were also due to corrosive substance. According to him, the time of occurrence could be about 04:30 A.M. early in the morning.

29. PW-6 is Arvind Kumar who was present near the place of occurrence, also supported the prosecution case.

30. A careful perusal of his statement clearly indicate that, there was no discrepancy amongst the statements of this witness, the statements injured witnesses and the statement of Keran Singh, the informant. He has narrated the entire occurrence in detail. His house is about 25 feet from the house of Keran Singh. At 04:30 A.M., he was going to answering the nature’s call. He had seen the accused Manoj from a distance of 7 to 8 feet. He had seen the accused near the cots of the girls. He also stated that he has thrown the water of his mug (Lota) on the faces of the victims to save them. In the mean time, Veer Singh has chased the accused Manoj. He accompanied the victims in the jeep to the police station but he did not go to the hospital.

31. PW-8 is the S.I. Somveer Singh who has investigated the matter. He had deposed that he has recovered the container in which the acid was carried by the accused. He has also recovered the container from the house of the accused. After recording the statement of both the girls and other witnesses, he submitted the charge sheet again the accused. He has further stated that on the same day, at 08:00 A.M. he has gone to the place of occurrence for spot inspection along with the father of the victims.

32. PW-9 is Constable Narayan Singh, who has registered the first information report.

33. From the spot map, it is evidence that the house of the accused is adjacent to the house of the victims and next two neighbours.

34. Learned counsel for the appellant has argued that there was clear discrepancies / contradictions amongst the statements of PW-2, PW-3 and PW-6. Regarding the direction of the main entrance of the house, PW-2 has stated that the main entrance of the house is towards north whereas, in the map prepared by the Investigating Officer, the entrance has been shows to the facing east. From the evidence, it is clear that there are two Chabutaras in front of the complainant’s house and there is a Pipal and Neem trees in front of his house. PW-1 has deposed that the main entrance of the house is towards the direction of the sun’s rise.

35. In my view, these discrepancies are for the reasons that there was confusion regarding the direction to one of the witnesses.

36. It is trite that only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. Minor omission in the statement by itself would not necessarily render the testimony of witness unreliable. Only when the version given by the witness in the Court is different in material particulars from that disclosed in his earlier statements, the prosecution case becomes doubtful and not otherwise.

37. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point that is no ground to reject the whole of the testimony of such witness.

38. It is quite natural that there is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. (Leela Ram vs. State of Haryana, 1999 (9) SCC page 525).

39. After careful considering the evidence of witnesses mentioned above, I find that there is no material inconsistency in the statements of PW-1, PW-2, Kehar Singh PW-3 and eye witness Arvind Kumar PW-6. The minor discrepancy in respect of direction of the main entrance of the house is concerned, from the evidence as noticed earlier, there are two Chabutaras in front of the complainant’s house and there is Peepal and Neem trees in front of his house. PW-1 has deposed that the main entrance of the house towards the east.

40. Learned counsel for the appellant next submitted that the prosecution witnesses are partisan witnesses. In my view, evidence of Kehar Singh who is the father of the victims cannot be discarded only on the ground that he is interested witness. It is true that while considering the evidence of a close relative, The court has to be cautious with such evidence but the entire evidence cannot be rejected only on the ground that he is close relative.

41. The Supreme Court in the case of Masalti vs. State of U.P., AIR 1965 SC 202, has held as under:-

“14. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses … The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard – and – fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”

42. Relevant it would be to mention that both the victims PW-1 and PW-2 have narrated the entire incident in detail. A reading of their entire statement and cross-examination fully established the charges against their accused/appellant. It is trite that victim’s testimony is given importance and the trial court has given due weight to ther evidences and I do not find any error in the trial court’s appreciation of their evidences.

43. Applying the aforesaid laws and the materials available on record, I am of the view that the Statement of two injured witnesses PW-1 and PW-2 alone has proved the charges against the appellant-accused. Accordingly, I affirm the finding of the trial court and I do not find any error in the judgment of the trial court.

44. Regard being had to the fact that a Public Interest Litigation Writ Petition (Criminal) No. 129 of 2016 was filed in the Supreme Court under Article 32 of the Constitution. One of the prayer in the said petition was to issue a direction to the Union of India to make appropriate amendment in the panel Code 1860 and Cr.P.C, 1873 for dealing in the acid attack. However determination was sought to frame guidelines in regard to acid attack victim by providing proper treatment, after care and rehabilitation of the victim of the acid attack.

45. The Supreme court issued notices to the Union of India, Law Commission of India and National Commission for Women and 6 others were also issued notices where considerable number of acid attacks.

46. The parliament amended the Cr.P.C. while the writ petition was pending and the Section 357 A has been inserted by Act No. 5 of 2009. the amended Section requires to formulate the scheme for providing funds for the purpose of compensation to the victims who had suffered the loss or injury as a result of crime and who needed rehabilitation. The Supreme Court issued several orders in the said writ petition and finally a direction was issued. The following directions in the case of Laxmi vs. Union of India, (2016) 3 Supreme Court Cases 669, have been issued for compensation to acid attack victim and for their rehabilitation, proper treatment etc.

“30.We have gone through the chart annexed along with the affidavit filed by the Ministry of Home Affairs and we find that despite the directions given by this Court in Laxmi Vs. Union of India [(2014) 4 SCC 427], the minimum compensation of Rs.3,00,000/- (Rupees three lakhs only) per acid attack victim has not been fixed in some of the States/Union Territories. In our opinion, it will be appropriate if the Member Secretary of the State Legal Services Authority takes up the issue with the State Government so that the orders passed by this Court are complied with and a minimum of Rs.3,00,000/- (Rupees three lakhs only) is made available to each victim of acid attack.

31. From the figures given above, we find that the amount will not be burdensome so far as the State Governments/Union Territories are concerned and, therefore, we do not see any reason why the directions given by this Court should not be accepted by the State Governments/Union Territories since they do not involve any serious financial implication.

32. We also direct the Member Secretary of the State Legal Services Authority to obtain a copy of the Victim Compensation Scheme from the concerned State/Union Territory and to give it wide and adequate publicity in the State/Union Territory so that each acid attack victim in the States/Union Territories can take the benefit of the Victim Compensation Scheme. I

33. Insofar as the proper treatment, aftercare and rehabilitation of the victims of acid attack is concerned, the meeting convened on 14.03.2015 notes unanimously that full medical assistance should be provided to the victims of acid attack and that private hospitals should also provide free medical treatment to such victims. It is noted that there may perhaps be some reluctance on the part of some private hospitals to provide free medical treatment and, therefore, the concerned officers in the State Governments should take up the matter with the private hospitals so that they are also required to provide free medical treatment to the victims of acid attack.

34. The decisions taken in the meeting read as follows:

34.1. The States/UTs will take a serious note of the directions of the Supreme Court with regard to treatment and payment of compensation to acid attack victims and to implement these directions through the issue of requisite orders/notifications.

34.2. The private hospitals will also be brought on board for compliance and the States/UTs will use necessary means in this regard.

34.3. No hospital/clinic should refuse treatment citing lack of specialized facilities.

34.4. First-aid must be administered to the victim and after stabilization, the victim/patient could be shifted to a specialized facility for further treatment, wherever required.

34.5. Action may be taken against hospital/clinic for refusal to treat victims of acid attacks and other crimes in contravention of the provisions of Section 357C of the Code of Criminal Procedure, 1973.

34.6. We expect the authorities to comply with these decisions.

35. Although it is not made clear in the meeting held on 14.03.2015, what we understand by free medical treatment is not only provision of physical treatment to the victim of acid attack but also availability of medicines, bed and food in the hospital concerned.

36. We, therefore, issue a direction that the State Governments/Union Territories should seriously discuss and take up the matter with all the private hospitals in their respective State/Union Territory to the effect that the private hospitals should not refuse treatment to victims of acid attack and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries.

37. We also issue a direction that the hospital, where the victim of an acid attack is first treated, should give a certificate that the individual is a victim of an acid attack. This certificate may be utilized by the victim for treatment and reconstructive surgeries or any other scheme that the victim may be entitled to with the State Government or the Union Territory, as the case may be.

38. In the event of any specific complaint against any private hospital or government hospital, the acid attack victim will, of course, be at liberty to take further action.

39. With regard to the banning of sale of acid across the counter, we direct the Secretary in the Ministry of Home Affairs and Secretary in the Ministry of Health and Family Welfare to take up the matter with the State Governments/Union Territories to ensure that an appropriate notification to this effect is issued within a period of three months from today. It appears that some States/Union Territories have already issued such a notification, but, in our opinion, all States and Union Territories must issue such a notification at the earliest.

40. The final issue is with regard to the setting up of a Criminal Injuries Compensation Board. In the meeting held on 14.03.2015, the unanimous view was that since the District Legal Services Authority is already constituted in every district and is involved in providing appropriate assistance relating to acid attack victims, perhaps it may not be necessary to set up a separate Criminal Injuries Compensation Board. In other words, a multiplicity of authorities need not be created.

41. In our opinion, this view is quite reasonable. Therefore, in case of any compensation claim made by any acid attack victim, the matter will be taken up by the District Legal Services Authority, which will include the District Judge and such other co-opted persons who the District Judge feels will be of assistance, particularly the District Magistrate, the Superintendent of Police and the Civil Surgeon or the Chief Medical Officer of that District or their nominee. This body will function as the Criminal Injuries Compensation Board for all purposes.

42. A copy of this order be sent to learned counsel appearing for the Secretary in the Ministry of Home Affairs and the Secretary in the Ministry of Health and Family Welfare for onward transmission and compliance to the Chief Secretary or their counterparts in all the States and Union Territories.

43. The Chief Secretary will ensure that the order is sent to all the District Magistrates and due publicity is given to the order of this Court.

44. A copy of this order should also be sent to the Member Secretary of NALSA for onward transmission and compliance to the Member Secretary of the State Legal Services Authority in all the States and Union Territories. The Member Secretary of the State Legal Services Authority will ensure that it is forwarded to the Member Secretary of each District Legal Services Authority who will ensure that due publicity is given to the order of this Court.”

47. Bearing in mind the above directions of the Supreme Court, I find that Victims of the present case are also entitled for compensation.

48. Now coming to the alternative submission of the learned counsel for the appellant that if this court comes to the conclusion that the charges against the appellant are proved in that event keeping in view the circumstances he may be treated leniently and sentence be reduced on the ground that he has no criminal history and there is family behind him. It is further urged that keeping in view the fact that he is already in jail for the last more than 6 years, his sentence may be reduced to the period of sentence already undergone.

49. The learned counsel has relied on a judgement of this Court in Nand Kishore @ Seth Pasi vs. State of U.P. in Criminal Appeal No. 973 of 2006. In the said case the accused was convicted under Section 376 I.P.C. for imprisonment of life and a fine of Rs. 10,000/-. Out of the amount of fine Rs. 7000/- was to be paid as compensation to the victim. The Division Bench relying on the judgment of the Supreme Court in the case of T.K. Gopal @ Gopi vs. State of Karnataka, (2000) 6 SCC 168 has held as under :-

“15. In view of the law, as discussed above, and in view of the facts and circumstances of the case, we find that the ends of justice would successfully meet if the appellant is awarded punishment already undergone by him. The fine imposed by the trial court is upheld. The appellant shall pay the fine, if the same has not already been paid, within sixty days from the date of receipt of record by the learned trial Court, which, shall, in turn, pay a sum of 7000/-, as compensation to the victim, without delay. In the event of default in payment of fine, the appellant shall have to undergo rigorous imprisonment for three years.”

50. In the case of Amit Kaushik vs. State of U.P., 2017 Law Suit (All) 196, this Court has affirm the judgment of the trial court convicting the appellant therein under Section 307 I.P.C. and sentencing him to undergo 10 years rigorous imprisonment and a fine of Rs. 15,000/-. This Court has held as under :-

“30. Now comes the sentence part, and the question is whether the sentence awarded by trial court is less or excessive? The trial court has awarded ten years R.I. T the appellant with fine of Rs. 15,000/-. As per the report dated 7.1.2016 submitted by Senior Superintendent of District Jail, Agra, the appellant has already spent six years eight months and 27 days in jail. Thus the applicant has already spent more than seven years under detention till today. The instant appeal, while is related to an occurrence of the year 2004, is pending since 2005 meaning thereby that the appellant is prosecuting this case for more than twelve years and while prosecuting his case in various courts, he must have undoubtedly undergone mental agony and financial sufferings. Considering all these circumstances and the time lag in between, it appears that the justice would be served if the sentence imposed by the trial court is reduced to the sentence already undergone by the appellant.

Accordingly, the sentence of imprisonment awarded by learned trial court is reduced to the period already undergone.”

51. Similarly, this Court in the case of Jamate vs. State of U.P., Laws (All) 2013 page 1013, has reduced the sentence from 10 years to 7 years on the ground the the accused is only bread earner in his family and he is in jail about five years and his family reached at the stage of starvation due to his confinement.

52. Applying these principles to the facts of the present case, I find that the accused has no criminal history. He has been in jail for the last more than 6 years, hence, I am of the view that ends of justice would be subserved, if the appellant is awarded punishment already undergone. However, the fine imposed by the trial court is enhanced to Rs. 20,000/- which shall paid to the victims Rs 10,000/- each of them.

53. In case of default of payment of said amount, the appellant shall have to undergo rigorous imprisonment for six months.

54. Accordingly the appeal is partly allowed. The conviction is confirmed but his sentence is modified to the extent as stated above.

55. The office is directed to send the lower court record along with certified copy of this judgment to the learned trial court, without any delay, preferably within two weeks from today.

Order Date :- 23.05.2017

sailesh