1. This appeal has been filed against the judgement and order dated 14.11.2011 passed by learned A.S.J., T.E.C.P-4, Lucknow in S.T. No.96/2010 arising out of Case Crime No.908/2007, under Sections 307, 323, 504, 506, 392 I.P.C., Police Station Hazratganj, District- Lucknow, whereby convicted and sentenced the appellant under Sections 323 I.P.C. for one year rigorous imprisonment with fine of Rs.1,000/-, in default of payment of fine ten days additional imprisonment.
2. Brief fact of the case emerges as such that the first informant lodged the F.I.R. against the accused-appellant with an allegation that on 06.12.2007 at around 01.30 pm, he went to Narayan Automobile to get the quotation of car and he parked his motor cycle in front of Mahindra Agency (Narayan Automobile), Lucknow. After taking the quotation when he went to the stand to get his motor cycle, then the contractor demanded more parking fee of Rs.20/- forcibly. The first informant objected to it. Being aggrieved the accused-appellant Ashu Mishra and other 4-5 unknown miscreants started beating with kick and fist and by means of pistol butt. Due to this, the first informant/complaint got injuries on his nose, eye and finger of the left hand and he has also stated in the F.I.R. that the accused-appellant shot fire on him but it missed. At that moment, the accused-appellant fled away from the spot after snatching his gold chain, Titan Watch worth Rs.1,000/- as well as Rs.1200/- from his pocket. Meanwhile, the accused-appellant was arrested by complainant with the help of other person and brought to the police station. An F.I.R. was lodged against him and some unknown persons on 06.12.2007 at 03.05 pm.
3. On this allegation, the written report as Ex-Ka-1 against the accused-appellant, Ashu Mishra in Police Station- Hazratganj, District Lucknow was registered under Sections 147, 323, 504, 506, 392, 307 IPC. After lodging the F.I.R., the investigation of this case was entrusted to Vimlesh Mishra, Investigating Officer. After recording the statement of the Head Constable on same day that the injured Shyam Narayan Mishra was examined on same day at 03.40 pm in Civil Hospital, Lucknow and as per injury report, following injury was found on the body of the victim during examination:
i) Abraded contusion 2.0 cm X 1.0 cm on left side of face 2.0 cm below left eye.
ii) Abraded contusion 2.0 cm x 1.5 cm on dorsomedial aspect of left little finger.
iii) Traumatic swelling 2.0 cm x 1.5 cm on dorsum of right hand 1.0 cm above to middle finger.
iv) Complain of pain over head, chest and abdomen.
Opinion- All the injuries are simple in nature and fresh caused by hard and blunt object.
4. During course of investigation, investigating officer prepared the site plan on pointing out of the first informant. Statement of the first informant and the witnesses was also recorded and after completing the entire formalities of investigation, charge-sheet was submitted against the accused-appellant, Ashu Mishra and Ritesh Kumar Singh before C.J.M. under Sections 147, 323, 504, 506, 392, 307 IPC. In pursuance of charge-sheet, cognizance of this offence was taken by C.J.M. on 15.05.2008 and the case was committed for trial to Sessions Court where it was transferred to the A.D.J./T.E.C.P -4 for trial. Charge against the appellant, Ashu Mishra and co-accused, Ritesh Kumar Singh was framed on 06.02.2010 under Sections 307, 323, 504, 506 392 IPC. However, the appellant denied the charge levelled against him and claimed to be tried.
5. In order to substantiate his case, the prosecution examined PW-1 Shyam Narayan Mishra who supported the entire prosecution and proved the written report as Ex-Ka-1, PW-2 Investigating Officer who was examined as eye-witness and PW-3 Head Constable Vinod Kumar Maurya who proved chik F.I.R. as Ex-Ka-2 and G.D. Rapat No.22 as Ex-Ka-3, PW-4 Dr. Anoop Agarwal who proved injury report as Ex-Ka-4, PW-5 who is the subsequent Investigating Officer of this case who proved site plan of the spot as Ex-Ka-5 and charge sheet as Ex-Ka-6. Thus, the prosecution relied on the oral evidence of PW-1 to PW-4 and also relied on as documentary evidence Ex-Ka-1 to Ex-Ka-
6. Subsequent to conclusion of trial, statement of the accused-appellant was recorded under Section 313 Cr.P.C. by the trial court. In his statement recorded under Section 313 Cr.P.C., the accused appellant denied the prosecution witness and pleaded false implication. No defence witness was examined on behalf of the accused-appellant.
7. After hearing learned counsel for the parties, learned trial court by impugned judgement and order held that the prosecution failed to prove the offence under Section 307, 392, 504, 506 and only convicted the appellant under Section 323 IPC as aforesaid and co-accused Ritesh Kumar Singh was acquitted from all the charges levelled against him.
8. Feeling aggrieved and dissatisfied with the judgement of the trial court, the appellant/Ashu Mishra has preferred the instant appeal.
9. I have heard learned counsel for the appellant, Dr. Surendra Singh, learned AGA and perused the material available on record.
10. The accused-appellant was sentenced under Section 323 IPC. As per Section 323 IPC maximum period of sentence is one year imprisonment. Coming to the sentence imposed on the appellant, since injury suffered by the victim/first informant is simple and superficial in nature and the appellant during intervening period, he was not indulged in criminal activity nor he had any criminal background.
11. Considering the facts and circumstances of the case, this Court is of the opinion that end of justice would be served if the sentence of the appellant is reduced from one year to the period already undergone by him in jail.
12. In the present appeal fine of Rs.1,000/- has been imposed by the court below on the appellant. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry.
13. Considering the provisions of Section 357 Cr.P.C., the fine of Rs.1,000/- is enhanced to Rs.5,000/- and it shall be deposited before the court below. Rs.3,000/- out of Rs. 5,000/- shall be payable to the injured, Shyam Narayan Mishra. Thus, the instant appeal is dismissed on point of conviction and partly allowed on point of sentence.
14. The accused-appellant shall deposit the aforesaid amount within 15 days from the date of presentation of certified copy of the order of this Court before the court below, failing which he shall serve out the remaining period of sentence as awarded by the trial court.
15. The copy of judgment along with lower court record be sent to the trial court and Jail Superintendent concerned for necessary compliance.
Order Date :- 26.08.2021 SK/-