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Ram Lakhan & Another. vs State Of U.P. on 4 April, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Court No. – 25 A.F.R.

Case :- CRIMINAL APPEAL No. – 1031 of 2000

Appellant :- Ram Lakhan Another.

Respondent :- State Of U.P.

Counsel for Appellant :- B.K.Singh

Counsel for Respondent :- Govt.Advocate

Hon’ble Dr. Vijay Laxmi,J.

Heard Sri B.K. Singh, learned counsel for the appellants and Sri Afaq Zaki Khan, learned A.G.A. for the State and gone through the record.

2. The challenge in this appeal is to the judgment and order dated 15.11.2000 passed by Special Judge (S.C. S.T.) Act Barabanki in Sessions Trial No.72 of 1996 arising out of Case Crime No.1066 of 1993 under Section 323 r/w Section 34, 452, 504 I.P.C. and under Section 3 (i)(xi) S.C. S.T. Act Police Station Kotwali, District Barabanki convicting the appellants namely, Ram Lakhan and his mother Smt. Shakuntala under Section 323 r/w 34 I.P.C. with 1 year R.I., under Section 452 I.P.C. 3 years R.I. and fine of Rs.500/- and under Section 504 I.P.C. 1 year R.I. and under Section 3 (i)(xi) S.C. S.T. Act 4 years R.I. and fine of Rs.1,000/-.

3. The background facts in a nutshell are as follows:-

The Complainant and his wife and the accused are residing in the same building with the common courtyard as tenants in village Daniyalpur. The report was lodged by Ram Charit complainant stating that he was residing in village Daniyalpur, P.S. Kotwali, District Barabanki from last 8 years as a tenant. He has become the permanent resident of this village. The accused Ram Lakhan Naai and his mother started residing in his neighbourhood as a tenant from last 1 year. They are harassing the complainant and his family and abusing them in the name of Chamar since they belonged to scheduled caste. The courtyard of the house was common. On the date of the incident the quarrel started when Smt. Sona Devi, wife of the complainant was washing her strainer under the tap of the courtyard. Some water of the strainer fell on the feet of the accused Shakuntala who got furiated and chased the victim alongwith her son Ram Lakhan to her room. She was having glass bottle in her hand and his son was having an iron bucket. They entered her room and assaulted her with glass bottle and bucket respectively. The victim suffered injuries on her head and the blood started oozing out of her head. The another tenant Shambhu reached on the spot on hearing the outcry of the victim who settled the dispute. The injury report shows the factum of the injuries caused to the victim in her head by blunt object which were the simple in nature. Number of villagers gathered on the spot. The report was lodged by the complainant in the police station at 3.05 p.m. on 29.09.1993 which is Exhibit Ka-1. The investigation was done by S.I. Kailash Singh Yadav who inspected the spot, received the injury report, recorded the statements of the witnesses and after completing the investigation the charge sheet Exhibit Ka-6 was submitted.

4. The prosecution examined Ram Charit PW1 and his wife Sona Devi PW2 victim as fact witnesses. No witness was examined in defence by the accused. The appellants stated in their statement under Section 313 I.P.C. they were innocent. They were falsely implicated in this case due to enmity.

5. On completion of the trial and after hearing arguments advanced on behalf of the parties, the Trial Court vide judgment and order dated 15.11.2000 convicted the appellants Ram Lakhan and his mother Shakuntala under Section 323 r/w 34, 452 and 504 I.P.C. and 3 (i)(xi) of the S.C. and S.T. Act.

6. The appellants are appealing against the conviction and sentence alleging that the facts and the law were not appreciated in correct perspective by the Trial Court. It is argued by learned counsel for the appellants that no case was made out against accused under Section 452 and 504 I.P.C. and Section 3 (i) (xi) of the S.C. S.T. Act since the ingredients of these charges were not satisfied. As regards of the offence under Section 323 r/w 34 I.P.C. learned counsel did not contest the said charge on merits. It is submitted that the matter was very old and the accused were willing to pay compensation to the victim. It is requested that linieant view may be taken in favour of accused. Learned A.G.A. supported the judgment.

7. Firstly I take the question as to conviction of the appellants under Section 504 I.P.C. It will be appropriate here to examine whether the ingredients of Section 504 Indian Penal Code have been made out. Section 504 is extracted for easy reference:

504. Intentional insult with intent to provoke breach of the peace.-Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

8. Section 504 Indian Penal Code comprises of the following ingredients, viz., (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intend or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 Indian Penal Code. The Supreme Court in  Fiona Shrikhande vs. State of Maharashtra and Anr.MANU/SC/0853/2013 stated that :

14. We may also indicate that it is not the law that the actual words or language should figure in the complaint. One has to read the complaint as a whole and, by doing so, if the Magistrate comes to a conclusion, prima facie, that there has been an intentional insult so as to provoke any person to break the public peace or to commit any other offence, that is sufficient to bring the complaint within the ambit of Section 504 Indian Penal Code. It is not the law that a complainant should verbatim reproduce each word or words capable of provoking the other person to commit any other offence. The background facts, circumstances, the occasion, the manner in which they are used, the person or persons to whom they are addressed, the time, the conduct of the person who has indulged in such actions are all relevant factors to be borne in mind while examining a complaint lodged for initiating proceedings under Section 504 Indian Penal Code.

9. In the instant case, the prosecution has not been able to prove that there was intentional insult and it  was of such a degree that should provoke a person to break the public peace or to commit any other offence. It is worth mentioning that even the specific offending words were not mentioned in the FIR. No independent witness was produced who saw the offending words being used by the appellants against the wife of the informant. The prosecution has thus not been able to prove the charge under Section 504 IPC.

10. Now coming to the next question as to conviction of the appellants under Section 452, it is also not proved in view of the fact that the informant as well as the accused were residing as tenants in the same building with a common courtyard. For an offence under Section 452 the offence of house trespass is committed when it is done having made preparation for causing hurt to any person or assaulting any person. In the instant case, the scuffle ensued between the accused Shakuntala and the victim in the courtyard of the house suddenly. It is not the prosecution case that any preparation was made by the accused for committing house trespass for assaulting the victim. The charge under Section 452 is thus not proved for want of evidence. The ingredients of Section 504 and 452 are not found satisfied.

11. Now coming to the offence under Section 3 (i) (xi) S.C. S.T. Act, it is established from evidence of Sona Devi PW2 and the medical evidence available on record that she suffered head injuries at the hands of accused Ram Lakhan and his mother. Smt. Sona Devi stated on oath that when she was washing her strainer on the tap some water of the strainer fell down on the chappal of Shakuntala on which she started abusing her. When Sona Devi started weeping, Shakuntala challenged to beat victim saying “Maaro saali chamarin ko yeh nakhra dikha rahi hai.” Ram Lakhan and Shakuntala chased victim and assaulted her in her room with bucket and glass bottle respectively. They caused serious injuries on her head. The blood started oozing out from her head. Though in the FIR it was noted that the bucket was in the hand of Ram Lakhan and glass bottle in the hand of his mother. The contrary statement was given by Sona Devi in her cross-examination where she stated that the mother of Ram Lakhan chased her with a bucket in her hand and Ram Lakhan was having a bottle which showed that Ram Charit was not on the spot who was the scribe of the FIR and lodged the case on the police station concerned. But the charge under Section 323 read with 34 IPC is proved.

12. If that is the position, I have no doubt that the appellants cannot be held guilty of an offence under Section 3(1) (xi) S.C. and S.T. Act. Section 3(1)(xi) is aggravated form of offence under Section 354 IPC. It appears from evidence on record that what the accused did it was as a result of sudden scuffle which ensued when the water from the strainer of Sona Devi fell on the chappal of Shakuntala and the assault was not with a view to outrage of the modesty of PW2. The proved facts are not sufficient to lead to an inference that the appellants were actuated by the intention to outrage her modesty.

13. This question was not considered by the Court below from this point of view. It appears to have been assumed that either there was an offence under Section 3(1)(xi) S.C. and S.T. Act or nor at all. The point was not considered whether even after the assault was proved it was such as would fall under Section 3 (1)(xi) S.C. and S.T. Act.

14. It is submitted by Mr. Singh on quantum of sentence that the occurrence is the year 1993 i.e. it took place about 24 years ago. The appeal against acquittal was filed in the year 2000. Presently, the convict Shakuntala is about 56 years of age and her son Ram Lakhan is about 42 years of age and it is regarded that a lenient view be taken in their favour. I am conscious that crime is affront to the human dignity, however, considering the willingness of appellants to pay compensation, their being tenant in same building and the long lapse of period are indeed considerations which may weigh in favour of the parties for not being awarded a long sentence of imprisonment. But then the interest of the victim of the crime have also to be kept in view. Keeping in view the consideration of the human factor involved and the interests of the victims to whom mere imprisonment of appellants at this belated stage would not offer much solace. It is necessary to strike a balance between these disparate considerations and keeping in view the fact that the appellants is willing to pay compensation to the victims, it would be appropriate to reduce their sentence of imprisonment to already undergone and to invoke the provision of Section 357 Cr.P.C. Section 357 Cr.P.C. provides basic frame work for compensation to the victims.

15. The Hon’ble Supreme Court has urged all the Courts time and again to exercise this power 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. In Hari Kishan v. Sukhbir Singh, (1988) 4 SCC 551 the Supreme Court urged all courts to exercise their power under Sec. 357 Cr.P.C. 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 Sec.s 307, 323 and 325 of IPC read with Sec. 149 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 Sec. 307/149 IPC, but maintained their conviction under Sec. 325/149 IPC. 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 Sec. 357(3) Cr.P.C. 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.

16. In Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 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. To quote:

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 Sec. 357 Code of Criminal Procedure 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.

17. In K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230 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.

18. In the instant case, the victim is the sufferer who should not be forgotten by merely maintaining the sentence of imprisonment on the accused. Considering the nature of the crime, the nature of injuries which are simple in the case, the fact that the accused and the victims were residing in the same building as tenant, the fact that one of the accused is a lady of 56 years and admittedly the accused are in a position to pay, it is a fit case to invoke Section 357 (1) Cr.P.C. and it would be appropriate to impose fine to the tune of Rs.4,000/- on each accused under Section 323 r/w 34 I.P.C. which shall be paid as compensation to victim. It would be appropriate in the interest of justice that the sentence of imprisonment for the offences under Section 323 r/w 34 I.P.C., be reduced to the period already undergone.

19. Having over all consideration of facts and situations and also the time lag in between, I am of the view that the sentence of imprisonment of the appellants for the offence under Section 323 r/w 34 I.P.C. be reduced to a period already undergone to meet the ends of justice. In addition accused will pay Rs.4,000/- each under Section 323 read with 34 I.P.C. to the victim. The appellants are directed to deposit a sum of Rs.4,000/- (Rupees Four Thousand Only) each in the Court of Special Judge (S.C. S.T.) Act, Barabanki within 30 days from today. On receipt of the deposit the Special Judge (S.C. S.T.) Act, Barabanki shall release Rs.8,000/- (Rupees Eight Thousand Only) to Smt. Sona Devi. In case of non deposit by the appellants convict, they shall be required to undergo 6 months imprisonment. The appellants are acquitted of the charges under Section 452, 504 I.P.C. and Section 3 (i) (xi) S.C. S.T. Act.

20. Above being the position, the impugned judgment is modified to that extent. The appeal is disposed of accordingly.

21. The Registrar is directed to communicate this order to the Special Judge (S.C. S.T.) Act, Barabanki for compliance.

Order Date :- 4.4.2017

Sarika

 

 

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