Court No. - 45
Case :- CRIMINAL REVISION No. - 3711 of 2009 Revisionist :- Uma Shankar Yadav & Another Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- D.N. Yadav,Prem Shankar Yadav Counsel for Opposite Party :- Govt. Advocate,K.S.Shukla
Hon'ble Siddharth,J.
Heard Sri Prem Shankar Yadav, learned Counsel for the petitioner and Sri K.S.Shukla, learned Counsel for the respondents.
This revision is directed against the judgment and order dated 31.8.2009 passed by Sessions Judge, Bhadohi in Criminal Appeal No. 6 of 2009 (Uma Shankar & others Vs. State of U.P.) partly allowing the appeal by acquitting the revisionists under Sections 504/506 I.P.C. partly confirming the judgment and order dated 10.2.2009 passed by Judicial Magistrate, Second, Bhadohi, Court No. 12 in Criminal Complaint Case No. 901 of 2008 (Ram Achhaibar Vs. Uma Shankar and others), confirming the conviction under Section 420 I.P.C. and sentencing the revisionists to undergo 3 years rigorous imprisonment and fine of Rs.3000/- each.
The prosecution case is that complainant, Ram Achhaibar, is having a shop of tea and pan. About one and half years ago, a tailor near the shop of the complainant came to him alongwith Dilip Kumar Harijan, accuseds - Uma Shankar Yadav, Chhote Lal Yadav, Gaya Prasad Yadav, Parmanand Yadav and Sattan Yadav and informed the complainant that they have opened a Bank in the name of “Mirzapur Bank” and requested him to open an account in the aforesaid Bank, where the money deposited becomes double very soon. On their assurance, the complainant has opened his two accounts and also opened accounts in the name of his sons, Barmanarayan and Rakesh Kumar and daughter Kumari Sudha Devi. The accuseds collected money from him from the shop and entry was made in a passbook on which signatures were made by the complainant. On 20.9.1994, Rs.18,000/- was entered in his account by accused persons. The other persons, namely, Paras Nath, Chattur Harijan and Dilip Kumar also opened their accounts. On 23.11.1994, the complainant heard rumours that Mirzapur Bank is a fraudulent Bank and its employees have ran away and the Bank has been locked. After unsuccessfully trying to lodge the first information report, the complainant preferred a complaint before the learned Magistrate. After the statements of complainants and witnesses were recorded, the Magistrate summoned the accuseds, Uma Shankar Yadav, Chhote Lal Yadav, Gaya Prasad Yadav, Parmanand Yadav and Sattan Yadav to face the trial under Sections 420, 504, 506 I.P.C.
During the trial, the trial of accused Sattan Yadav was separated and the other accuseds were put to trial. The statements of witnesses were recorded and the accused denied the charges. The trial court convicted and sentenced the accuseds - Uma Shankar Yadav, Chhote Lal Yadav, Gaya Prasad Yadav and Parmanand Yadav, under Section 420 IPC with rigorous imprisonment of three years each and fine of Rs.3000/- each. On failure to deposit the fine, six months rigorous imprisonment was to be further undergone. Under Section 504 IPC, all the accuseds were directed to undergo one year simple imprisonment and fine of Rs.1000/- each was also directed to be paid and on failure to deposit the fine, two months additional imprisonment was provided. Similar punishment was awarded under Section 506 IPC to all the accuseds.
The appellate court partly allowed the appeal and acquitted the accused under Sections 504 and 506 IPC, but punishment under Section 420 was maintained. Hence this revision.
Learned counsel for the revisionist has submitted that the incident is of the year 1994 and it would not be justified to send the revisionists to jail and has prayed that their remaining sentence may be converted into fine.
Considering the facts that it is an old incident of the year 2004 and the appeal of the appellants was decided in the year 2009 and thereafter, they are on bail, argument of the learned counsel for the revisionists merits consideration.
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.
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.
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.
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.
Having an overall consideration of the fact situation and also time lag in between, the court is of the view that sentence of conviction of revisionists for offence under section 420 I.P.C. is confirmed but the sentence is reduced to the period already undergone to meet the ends of justice. The fine of Rs. 20,000/- per accused is directed to be paid to the complainant or his legal heirs, as the case may be, as compensation. The revisionists, Uma Shankar and Chhote Lal Yadav are directed to deposit Rs.20,000 (Twenty thousand) each before the trial court and on receipt of the amount same shall be released in favour of the complainant or his legal heirs, as the case may be.
In case of failure of deposit the aforesaid amount of fine, the revisionist shall be taken into custody and shall be required to be served out the remaining sentence.
In view of the above the impugned judgement is modified to that extent. The revision is partly allowed.
Order Date :- 24.9.2018 Ruchi Agrahari