Partly allowed

Ram Sarikh and Others v. State

Allahabad HC25 Nov 2022CRLA/3122/1985

Case brief

AI extract

What is this about?

The High Court allowed the appeal in part. It substituted the imprisonment sentence with a monetary fine for the remaining appellants who were found guilty of affray and grievous hurt. The fine amount was partially directed to be paid as compensation to the injured victims.

What did the court decide?

The imprisonment sentence was substituted with a fine of Rs. 5,000 each (Rs. 4,000 under Sec. 147 and Rs. 1,000 under Sec. 323 IPC).

Ram Sarikh and Others Vs State — Cheque Dishonour | Allahabad HC (2022)

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AFR RESERVED

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Court No. - 93

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Case :- CRIMINAL APPEAL No. - 3122 of 1985

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Appellant :- Ram Sarokh And Others Respondent :- State Counsel for Appellant :- D.B.Yadav Counsel for Respondent :- A.G.A.

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Hon'ble Surendra Singh-I,J.

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This criminal appeal has been instituted against the judgement and order dated 05.11.1985 passed by the Vth Additional Sessions Judge, Azamgarh in Sessions Trial No. 35 of 1984, State vs. Jheenak and others. By the impugned judgement aforesaid, the Trial Court had convicted appellants Ram Sarikh s/o Dashrath, Ram Lachhan s/o Dashrath, Dhaneshwar s/o Navrang and Shiv Chand s/o Sanehi under Sections 147, 323 read with Section 149 I.P.C. and sentenced each accused-appellants to one year’s rigorous imprisonment under Section 147 I.P.C., six month’s rigorous imprisonment under Section 323 read with Section 149 I.P.C. Both sentences were directed to run concurrently.

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During pendency of appeal, appellant-accused, Ram Lachhan and Dhaneshwar have died and Criminal Appeal qua them has been abated vide order dated 23.09.2022. Thus, criminal appeal against accused-appellants, Ram Sarikh and Shiv Chand is pending for disposal.

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The prosecution case, as revealed in written report dated 05.04.1980 at 10 am submitted to the Police Station Madhuban

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is that that informant Triveni s/o Cheekhur is resident of Daryabad, Police Station Madhuban, District Azamgarh. On 05.04.1980, when his son Chandra Pati was returning to his home from his shop, he saw that Jheenak s/o Dhaneshwar r/o Parvejpur was cutting Lathi from his bamboos trees (Banskoth). Informant’s son forbid him from cutting Lathi. Being enraged on this, accused Jheenak started abusing the informant’s son. Hearing the noise, accused Ram Sarikh and Ram Lachhan s/o Dashrath, Dhaneshwar s/o Navrang, Shiv Chand s/o Sanehi and 12 other accused, in pursuance of common intention exhorting others, assaulted informant’s son Chandra Pati with Danda and Bhala.

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Hearing the crying of his son, informant Triveni reached at the place of occurrence and started defending his son. Ram Sheesh Lal fired by a country made pistol on him and his son causing injuries to them. On the basis of written report (Exhibit Ka-1) Case Crime No. 79 of 1980 under Sections 147,148,149 and 307 I.P.C. was registered against the accused-appellants. Exhibit Ka-4 is the Chik FIR. Entry of the criminal case was made in the GD as report no. 26 time 3:20 dated 05.04.1980 by the Head Moharrir present in the police station. The certified copies of the written report is Exhibit Ka-5.

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Medical Officer, Dr. Digvijay Singh examined the informant injured Triveni on 05.04.1980 at 9:30 p.m. at PHC Fatehpur Mandav. During examination the following injuries were found on the person of injured Triveni:

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Contusion 1.5 cm X 1 cm on middle of back crossing the midline 15 cm below the inferior angle of right scapula. Red in color.

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Lacerated wound 0.5 cm X 0.2 cm X 0.2 cm on right palm, 4 cm below the right wrist joint.

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In the opinion of the doctor injuries were simple in nature, caused by blunt object. Duration about one day old.

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Kavalpati s/o Triveni was examined by Dr. Digvijay Singh on 05.04.1980 at 9:50 pm and following injuries were found:

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Traumatic swelling 8 cm X 4 cm on back of left forearm, 8 cm below the left elbow joint without any color change.

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Lacerated wound 0.8 cum X 0.2 cm right little finger on outer side near the nail bed.

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Contusion 3 cm X 1.5 cm on left palm, inner side touching the left wrist joint. Red in color.

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Contusion 5 cm X 1 cm on back of left knee joint outer side. Red in color.

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According to the opinion of the doctor, all injuries were simple in nature, caused by a blunt object. Except injury no. 1, all injuries were about one day old. Duration of injury no. 1 could not be assessed.

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On the basis of the injury report, the criminal case was converted into under Section 147/323 I.P.C. G.D. entry thereof is Exhibit Ka-6.

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The investigation of the case was done by Investigation Officer, S.I. Vishnukant Singh (PW-6), who visited the place of occurrence and prepared the site plan. After investigation he submitted final report. In the case, on the direction of the C.O. concerned, the Investigating Officer again submitted a charge sheet under Sections 147 and 323 I.P.C. P.W. 6, S.I. Vishnukant

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Singh has also investigated the cross criminal case registered on behalf of the accused-appellants and after investigation submitted a charge sheet (Exhibit Kha-1) against the informant and his son. PW-6, S.I. Vishnukant Singh has proved the Chik FIR (Exhibit Kha-1) and site plan (Exhibit Kha-2) of the cross case.

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The case was received after committal and registered as Sessions Trial No. 35 of 1984. On 28.02.1984, the 6^th Additional Sessions Judge, Azamgarh framed charges under Section 147 and 323 read with Section 149 I.P.C. against accused Ram Sarikh, Ram Lachhan, Shiv Chand, Dhaneshwar, Jheenak, Baburam, Rambachan, Rajpati, Sanehi, Harinandan, Deepchand, Rajendra, Ramsevak, Jamuna, Bhuvan, Surat, Ramasheesh and Balli. Accused denied charge and claimed trial.

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To prove the charge, the prosecution has examined informant PW-1 Triveni, injured, P.W.-2 Kavalpati and eyewitness PW-3 Chandrapati as witnesses of facts. Prosecution has also examined formal witnesses PW-4 Dr. Digvijay Singh, the then Head Moharrir PW-5, Dinesh Singh and Investigating Officer PW-6 Vishnukant Singh.

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On 04.10.1984, the trial court has recorded statement under Section 313 Cr.P.C. of accused, who have denied the prosecution case. They have also denied the evidence given by the witnesses against them. They have stated that the witnesses were giving false evidence due to enmity and they are being falsely prosecuted due to enmity. Accused-applicants have also stated in their additional evidence that the informant, his son and other persons of their side had attacked them. They have further stated in their additional evidence that one day

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before the date of occurrence at night, the Dhekul of accused Ram Serikh was stolen from his pond, when he inquired regarding it from the son of informant, Chandrapti he started quarrelling with him and on the next day at 8.30 am informant and his son including total six person in which two were having countrymade pistols in their hands, fired at him. Shiv Chand, Dhaneshwar and Ram Lachhan came their to protect him then informant Triveni and his son Kavalpati and Suresh set ablaze the crops lying in his khalihan which were burnt to ashes. Ram Sarikh also stated that due to the firing he received bullet injuries. Persons of his side received pellet injuries and FIR was also lodged by him against the informant and persons of his side.

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The accused have also got proved the Chik FIR, GD of registration of criminal case filed by them, the site plan and injury report regarding the injuries received by them. They have also filed certified copy of the injury report of injuries received by accused in the incident.

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Heard learned counsel for the appellants-accused and learned A.G.A. on behalf of the State.

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It has been stated on behalf of the accused that the Trial Court without examining the oral and documentary evidence produced by the defence, has wrongly decided the case and convicted the appellants-accused. It has been also stated that from the evidence on record and statement of accused under Section 313 Cr.P.C. it is well proved that they were attacked by informant, his sons and persons of his side and their crops, lying in his Khalihan, was also burnt. The injuries were caused to them by the informant, his son and other persons of his side.

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But the Trial Court did not accept their plea of right of defence and wrongly convicted them.

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Per contra learned A.G.A. for the State has argued that the prosecution has proved the charge under Section 147 and 323 read with Section 149 I.P.C. against accused persons beyond reasonable doubt and the Court has rightly convicted and sentenced the appellants under the Sections mentioned above.

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Informant injured PW-1 Triveni has proved the written report. It was submitted by him that after the occurrence he submitted a written report to the concerned police Station and on the basis of which criminal case was registered against the accused-appellants. PW-1 Triveni has also proved his evidence that on the alleged date, time and place accused Ram Sarikh and Shiv Chand with other co-accused, some of them died during pendency of appeal while some of them did not file the criminal appeal, in pursuance of common object attacked him, his son Kavalpati with Lathi and caused injuries to them. The incident was witnessed by his other son, PW-3 Chandrapati and other villagers. He got medical examination of himself and his son Kavalpati done in PHC Fatehpur.

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Injured kavalpati PW-2 and eye witness PW-3 Chandrapati has also corroborated the facts in the deposition made by PW-1 Triveni. The evidence of PW-1, PW-2 and PW-3 appears to be cogent, reliable and convincing. In their crossexamination by defence nothing has come which may cause it appear to be a false or unreliable. The oral evidence of aforesaid PWs have been corroborated by the documentary evidence namely Chik FIR, copy of GD of institution of criminal case against accused, injury report of PW-1 and PW-2 and

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charge sheet filed against appellant-accused, Ram Sarikh and Shiv Chand.

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Defence has filed a copy of the Chik FIR, copy of GD of institution of criminal case and the site plan of their case prepared by PW-6 Vishnu Datt Singh. They have filed injury reports regarding the injuries received by accused Ram Sarikh and other persons of their side but they have not got it proved by statement of medical officer. Therefore, it cannot be read in evidence. They have not filed other prosecution papers as charge sheet. Thus, it is not clear whether charge sheet was filed against informant and persons belonging to his side.

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From the appreciation of the above discussion and analysis, which has been introduced by the prosecution in support of the charge and accused in support of their defence, it is proved that on the date time and place of occurrence appellants-accused Ram Sarikh, Shiv Chand and other persons of their side surrounded Kavalpati s/o Triveni and on alarm being raised by Kavalpati, Triveni and his other son arrived to save Kavalpati. Then appellants-accused, along with other persons of their side, attacked informant and caused injuries to informant and his son Kavalpati. The prosecution has proved the charge under Section 147, 323/149 IPC against accusedappellants Ram Sarikh and Shiv Chand beyond reasonable doubt. The Trial Court has rightly convicted and sentenced the accused-appellants under Sections 147, 323/149 IPC. There is no force in the appeal.

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Learned counsel for the appellant-accused Shri D.B. Yadav has argued that the incident relates to the year 1984. Informant and accused belongs to same village. They are living with peace and harmony for more than 35 years. Appellants do

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not have any criminal history. The incident took place at the spur of moment without any pre-plan on behalf of the appellants-accused. Instead of sending them jail to undergo the sentence, fine may be imposed on them. It is further submitted that more than 37 years have been passed since the incident took place. Informant, his sons and appellants are living with peace and harmony in the same village since then. Presently, the age of appellant-accused Ram Sarikh is about 77 years and that of Shiv Chand is 57 years. Only simple injuries were caused to the informant and his son.

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Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts.

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"... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused 'X' vs. State of Maharastra (2019) 7 SCC 1 )

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"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).

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Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of

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humiliation; and (iv) privacy breach." ( State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300 )

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It is also notable that "... where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125 )

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Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.

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Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:

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"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."

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"31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay."

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"54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would

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remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision."

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Considering the facts and circumstances of the case and the law propounded by Supreme Court regarding sentence of accused as well as providing compensation to the victim, the interest of justice will be better served if fine is imposed on the accused-appellants and injured victims are compensated from the portion of fine. Appeal is partly allowed and the sentence is modified. The appellants-accused are imposed the fine of Rs. 4,000/- each, under Section 147 IPC and Rs.1,000/- each under Section 323 IPC. Out of the fine received from the appellants-accused Rs.3,000/- each shall be paid to injured Triveni and Kavalpati. Accused-appellants shall deposit the fine within two months from the date of this judgement. In case they do not deposit the fine within the prescribed time, they shall have to undergo period of sentence/imprisonment passed by the Trial Court against them.

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Let the lower court record along with a copy of this judgment and order be sent to the Sessions Judge, Azamgarh for getting it executed by the Trial Court.

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Order Date : 25.11.2022 Brijesh Maurya

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Digitally signed by BRIJESH KUMAR Date: 2022.11.25 16:48:34 IST Reason: Location: High Court of Judicature at Allahabad

Ram Sarikh and Others v. State

Case brief

What is this about?

What did the court decide?

Ram Sarikh and Others v. State

Case brief

What is this about?

What did the court decide?

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