Court No. - 81
Case :- CRIMINAL APPEAL No. - 1923 of 1983 Appellant :- Nawab Respondent :- State Counsel for Appellant :- Amar Saran,Chandra Kant Jha,Nanak Saran Counsel for Respondent :- A.G.A.
Hon'ble Dinesh Kumar Singh-I,J.
None appears from the side of the appellant through Sri G.P. Singh, learned A.G.A. is present and perused the record.
This appeal has been preferred against the judgment and order dated 30.07.1983 passed by IV Additional Sessions Judge, Allahabad in Session Trial No.84 of 1982 whereby the accused- appellant has been convicted and sentenced to undergo three years rigorous imprisonment under section 324 IPC.
The facts of the case are that at the time of incident the informant Mohd. Qayyum PW1 was having an altercation with the accused appellant and thereafter on 10.10.1981 at about 2.00 P.M. when brother-in-law of the informant Mohd. Rashid @ Kallu had gone to take betel on the shop of Chhanne, the accused Nawab had assaulted him with knife which hit his abdomen and he fell down crying. After hearing his cry, the informant, Sharif son of Hanif and Zabbar son of Liyaqat Ali and some other persons who were present there, rushed towards him and challenged the accused. In the meantime, the accused Nawab assaulted twice again upon his brother-in-law Mohd. Rashid @ Kallu and when the witnesses challenged the accused, the accused fled leaving his brother-in-law towards Kareli Scheme. Thereafter, the informant with the help of his brother Mohd. Farooq, who was on the spot, took the injured to Medical College. On the report (Exhibit Ka-1) case crime no.
391 of 1981 was registered at Police Station, Khuldabad, District Allahabad under section 307 IPC against Nawab. Entry of this case was made in G.D. on 10.10.1981(Exhibit Ka-6) at report no. 27 time 17.00 hours. The investigation was conducted by S.I. Muni Ram Mishra (PW4), who prepared the site plan (Exhibit Ka-4) and submitted charge-sheet against the accused-appellant (Exhibit Ka-5). The injury memo of Mohd. Rashid @ Kallu is Exhibit Ka-2. The charge was framed against the accused-appellant under section 307 IPC on 31.12.1981 to which he pleaded not guilty and claimed to be tried.
From the side of prosecution, Mohd. Qayyum as PW1, Mohd. Rasheed as PW2, Dr. Jogendra Singh as PW3 and Sri Muni Ram Mishra, S.I. as PW4 have been examined.
After the prosecution evidence was closed and the statement of accused under section 313 Cr.P.C. was recorded in which he has stated that entire evidence led against him is false and he has further stated that he has been implicated falsely and has further stated that miscreant Naseem had illicit relation with the wife of Mohd. Rasheed and because of that it was possible that Naseem would have made the assault. The trial court after having considered the entire evidence, has convicted the accused- appellant under section 324 IPC and has acquitted him for the offence under section 307 IPC and has awarded him punishment as mentioned-above.
Today, the case is listed peremptorily. None has appeared from the side of the appellant, hence the matter is being considered by the Court itself on merits after having perused the record.
Learned A.G.A. has argued that the judgment does not suffer from any infirmity and the same should be affirmed.
In support of the prosecution, PW1 Mohd. Qayyum has stated that his sister Smt. Sarwari Begum was married to Mohd. Rasheed @ Kallu (injured) (PW2). The accused- Nawab had misbehaved with his sister and on that account there was an exchange of hot words between them and thereafter the accused Nawab assaulted Mohd. Rasheed @ Kallu with knife but the people of the Mohalla had intervened. Because of that enmity existed between him and accused Nawab. About 20 days after the previous occurrence Mohd. Rasheed @ Kallu had gone to the shop of Chhanne to take betel where accused Nawab had also come and had an exchange of hot words between them and thereafter accused Nawab assaulted Mohd. Rasheed @ Kallu with a knife. Mohd. Rasheed @ Kallu raised alarm, PW1 also reached there and saw with his own eyes the knife blows being inflicted upon the injured. He has further stated that he had lodged FIR (Exhibit Ka-1) in this regard at the police station.
The injured Mohd. Rasheed @ Kallu has been examined as PW2. He has stated that at 2.00 p.m. on the date of occurrence when he had gone to the shop of Chhanne to take betel, the accused also came there and caught hold of him and started abusing him. Thereafter, he dragged him in the nearby lane and struck him with a knife. One blow hit his hand and the second blow hit his abdomen and third blow hit his back. He has further stated that thereafter from the place of occurrence he was taken to Moti Lal Nehru Hospital and from there he was taken to the Medical College in an ambulance where he was medically examined and he remained hospitalized for about a month and a few days. He has also stated that about 15-20 days prior to this occurrence, accused Nawab had misbehaved with his wife therefore there was motive to give effect to this occurrence. From the statements of above two witnesses, it is clear that there is direct evidence of witnesses who have seen the victim being assaulted by the accused and motive is said to be that about 20 days prior to this occurrence, wife of the injured was misbehaved by the accused which had led the accused to annoyance to give effect to the present occurrence. Both the witnesses have been extensively cross-examined and yet nothing has come out in evidence which would cast any doubt on the truthfulness of the statements of these witnesses.
Dr. Jogandra Bahadur, PW3 who examined the injured on 10.10.1981 at 3.00 P.M., has found the injured to have suffered the following injuries:
i) Incised wound 1" x 0.2" x to be ascertained by Surgeon on the right lower part of abdomen, 4" away from the right anterior superior iliac spine, 1-1/4" away from the mid line of the body with fresh bleeding. Transverse in direction.
ii) Incised wound 1-1/2" x 0.4" x depth to be ascertained by Surgeon on the right back of chest in right scapular area, vertical in direction 1-1/2" away from the spine, i.e. mid line of body with fresh bleeding.
iii) Incised wound 1" x 0.4" x skin deep on the middle of left forearm on the back, 3" above the left wrist joint with fresh bleeding, vertical in direction.
All the injuries were kept under observation and were caused by sharp object and duration was fresh. The patient was admitted in emergency ward for treatment.
This witness has proved his report as Exhibit Ka-2 written in his handwriting and has opined that the injuries were caused by sharp edged weapon, which could be knife. He has also given opinion that the said injury could have been caused to the victim on 10.10.1981 i.e. on the date of occurrence.
I find that the statement of this witness stands corroborated by the statement of the injured witness i.e. PW2 because PW2 has clearly stated that three injuries were caused by knife to him by the accused-appellant and all the three injuries which have been found in the injury memo are found by the doctor to have been caused by sharp object.
Investigating Officer, S.I. Muni Ram Mishra, has been examined as PW4. He has proved the charge-sheet and site plan and in cross-examination nothing such has emerged which would cast any doubt on his testimony. From his statement, it cannot be doubted that the investigation has not been conducted in fair manner.
However, this court would like to rely upon the law laid down in Manohar Singh Vs. state of Rajasthan and others, 2015(3) SCC 449 in which following is held in paragraph no. 11:-
"Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While under section 357, financial capacity of the accused has to be kept in mind, section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation."
This Court would like to refer to provisions of Section 5 of the Probation of Offenders Act, 1958 which provides as under:-
5. Power of court to require released offenders to pay compensation and costs.?
(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay?
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.
In view of the above provisions looking to the fact that large number of injuries were suffered by the injured, Mohd. Rasheed @ Kallu, examined as PW2, therefore in order to compensate the said victim for the medical and other expenses, pain & suffering, loss of earning etc., I deem it proper that the appellant shall deposit a sum of Rs. 10,000/- with the court below within two months time by way of compensation to be paid to the said injured by court after proper identification, if he is alive. In case, he is not alive, the said amount would be forfeited in favour of the State. In case, the said amount is not paid within the said time period, in default the accused appellant would serve out two months simple imprisonment.
Considering the above evidence, I am of the view that the trial court's judgment is based on proper appreciation of evidence and there is no infirmity found therein. I am also of the view that the accused-appellant has been rightly convicted under section 324 IPC and the punishment awarded for three years also does not seems to be on higher side. Therefore, the judgment of the trial court is upheld but looking to the fact that the accused was 24 years of age in the year 1983 when his statement under section 313 Cr.P.C. was recorded, therefore by now he would be 60 years of age, therefore, I find that after taking into consideration the gap of 36 years since he was convicted, now sending him behind bar, would cause a great hardship to him. Therefore, this is found to be a fit case in which benefit of Probation of Offenders Act should be given. The accused-appellant is on bail. I find that it would be appropriate that instead of sending him to jail, he should be released on probation for a period of two years on his furnishing personal bond and two sureties each in the like amount to the satisfaction of the court concerned. The accused- appellant shall maintain peace and be of good behaviour during the aforesaid period. Ordered Accordingly. The appeal is accordingly partly allowed in respect of sentence..
Let a copy of this judgment be transmitted to the trial court concerned along with lower court record with a direction that the trial court shall ensure compliance of this judgment forthwith.
Order Date :- 29.11.2019 AU