Partly allowed

Karuwa and Another v. State of U.P.

Allahabad HC1 Apr 2022CRLA/3827/2007

Case brief

AI extract

What is this about?

A High Court bench affirmed conviction under Section 307 IPC for attempt to murder but modified the sentence to time served. The court directed appellants to pay compensation of Rs. 20,000 each to injured witnesses, denying probation due to the nature of firearm injuries.

What did the court decide?

Sentence modified to time served; compensation of Rs. 20,000 to each injured person; three years imprisonment in case of default.

Karuwa and Another Vs State of U.P. — Pension and Retirement Benefits | Allahabad HC (2022)

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Judgment reserved on 7.3.2022

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Delivered on 1.4.2022.

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Court No. - 69

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Case :- CRIMINAL APPEAL No. - 3827 of 2007

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Appellant :- Karuwa And Another Respondent :- State of U.P. Counsel for Appellant :- Raj Singh Counsel for Respondent :- Govt. Advocate,Subhash Chandra Raghav,Swati Agrawal Srivastava

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Hon'ble Saurabh Shyam Shamshery,J.

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Heard Raj Singh, learned counsel for the appellants, Subhash Chandra Raghav, learned cousnel for the O.P. No.2 and Munne Lal, learned A.G.A.

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This criminal appeal has been preferred against the judgment and order dated 29.5.2007, passed by learned Additional Session Judge, Court No.7 Aligarh in S.T. No.780 of 2004, P.S. Khair, district-Aligarh, convicting the appellants under Section 307 I.P.C. and sentencing them for three years Rigorous Imprisonment and imposing fine of worth Rs.5000/- and in case of default both the appellants have to undergo further additional imprisonment of one month.

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In the present case, the prosecution story in brief is that on 4.10.2002 at about 5.30 P.M. complainant Ranveer Singh alongwith his brother Gyan Singh were ploughing their fields by a

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tractor, when the accused Bhura Singh, Karuwa, Suresh, Harkesh and Raju whose fields were adjoining and in between there was a 'Med' (boundary made of mud), came there having 'Lathi and fire arms' which was objected by the complainant side. Thereupon, accused Bhura Singh exhorted and all the accused persons started firing and assaulted them by Lathi also in which the informant Ranveer Singh, his brother Gyan Singh, co-villagers Jagdish and Prahlad suffered injuries. Occurrence was witnessed by many villagers.

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Injured Prahlad has received five firearm injures on the right side of thigh, on testicular region, left thigh, right elbow and right thumb. The other injured Jagdish has received four fire arm injures on right thumb, right side of neck, left side of chest and on upper portion of forearm and the injured Ranvir suffered injury on right elbow.

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Learned trial court on the basis of evidence of injured witnesses Ranvir Singh (informant), P.W.1, Jagdish (injured) P.W.2, Prahlad P.W.7 and medical evidence of Dr. B.P. Sharma, P.W.3, Dr. S.K.S Rana, P.W.5, Investigating Officer, Mahesh Chandra P.W.4 and Rajendra Prasad Singh, P.W.6 came to conclusion that the appellants have committed offence under Section 307 I.P.C. however, three accused persons namely, Suresh, Harkesh and Raju were acquitted from all the offences. The learned trial court came to conclusion that the appellants while exercising their rights of private defence of property, have exceeded their right and caused fire arm injuries to injured Prahlad and Jagdish with the intention of causing said injuries whereby death could be caused and

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sentenced them for three years with a fine of Rs.5,000/- and in default, they have to serve additional imprisonment of one month.

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Raj Singh, learned counsel for the appellants submits that the occurrence took place at the fields of father of the accused, therefore, they were not aggressor and there was a cross case also. The alleged weapon used in the occurrence was not recovered. Injuries caused to the injured persons were simple in nature and were not on the vital part of the body. The incident occurred on 4.10.2002, i.e. 20 years ago.

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Counsel for the appellants has relied upon a judgment passed by this Court in the case of Satish @ Chattish & Ors. Vs. State of U.P. decided on 3.4.2019, and contended that where injuries are caused by fire arms, the opinion of ballistic expert is of considerable importance. In the present case, neither the alleged weapon used in the occurrence was recovered nor any cartridges were recovered from the place of occurrence.

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Counsel for the appellants has also placed reliance upon a judgment passed by co-ordinate bench of this Court in Criminal Appeal No.127 of 2001, Kanna @ Chotey Vs. State of U.P. decided on 1.12.2017, that on the basis of evidence on record, appellants should be granted benefit of Section 360 of Cr.P.C. as well as of Section 4 of Probation of Offenders Act, 1958.

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Per contra, Munne Lal, learned A.G.A. and S.C. Raghav, learned counsel for the complainant submitted that the appellants have used fire arms and caused multiple fire arm injuries to the injured

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Ranvir Singh and Jagdish. Injured Ranvir Singh has suffered two fire arm injuries on both thighs as well as two fire arm injuries on the testicular region, whereas the injured Jagdish suffered multiple fire arm injuries on the left side of chest and two fire arm injuries on the upper part of the left hand and also suffered two fire arm injuries on the left arm. The nature and place of injuries were serious and on vital parts.

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They further submitted that from the nature of the fire arm injuries, it is clearly evident that the appellants have exceeded their right to private defence of property, therefore, they were rightly convicted under Section 307 I.P.C. and were sentenced for three years. They further pointed out that under Section 307 Part 2 I.P.C. the appellants are liable for punishment with imprisonment of life and there is no ground for granting benefit under the Probation of Offenders Act.

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The cases relied upon the learned counsel for the appellants are distinguishable as in the present case, the weapon used in the occurrence was not recovered, therefore, there was no occasion for any ballistic report as well as it was a case of no injury, whereas in the present case there were multiple fire arm injuries.

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Heard learned counsel for the parties and perused the written submissions and materials on record.

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From perusal of ocular evidence of injured witnesses as well as medical evidence, the injured witnesses have received multiple fire arm injuries on vital parts also. Evidence of prior dispute on

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boundary of fields is also on record. The persons from the complainant side were demolishing the boundary within the fields of Bhura Singh of the accused side and in exercise of their private defence of property, the appellants used their fire arms which caused multiple fire arm injuries to two injured witnesses, therefore, the learned trial court has rightly came to conclusion that since no force was used from the side of the complainant, therefore use of fire arms and thereby causing multiple fire arm injuries, to two injured witnesses, the appellants have exceeded their right of private defence.

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Now the Court has to consider as to whether in view of the submissions made by learned counsel for the appellants that occurrence took place about 20 years ago and the appellants who are on bail, have never misused their liberty and also not involved in any other offence, and that their present age being about 53 and 50 years, whether it would be in the interest of justice to send all the appellants to jail to serve the remaining sentence or the sentence may be modified to the period already undergone and to grant substantial compensation to the injured witnesses. In this regard, principle of sentencing and compensation are discussed below.

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Re: Principle of Sentencing

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Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India.

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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

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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 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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Re : Compensation

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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 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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Appellants are convicted and sentenced under Section 307 I.P.C. which is referred herein.

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“307. Attempt to murder .

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Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1[imprisonment for life], or to such punishment as is hereinbefore mentioned.”

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In the present case, appellants have caused hurt to two persons, (multiple fire arm injuries) thereby they could be convicted either to imprisonment for life or imprisonment which may extend upto 10 years and shall also liable to fine.

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Considering facts and circumstances of the present case, such as occurrence took place about 20 years ago, there was no allegations of misuse of bail during trial, no other criminal antecedents, present age of the appellants is around 53 and 50 years, in the interest of justice, while affirming the order of conviction, the order of sentence is modified to the period of sentence already undergone (about one month) with the direction that each appellants has to pay compensation of Rs.20,000/- to each injured persons within 8 weeks from the day they are released from Jail and shall submit a receipt before the trial court within four weeks thereafter and in case of default both the appellants have to serve remaining sentence of three years as awarded by the trial court.

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In view of the above discussions and direction, this appeal is partly allowed and the order of conviction under Section 307 I.P.C., is upheld and the sentence awarded is modified to the period already undergone and compensation is determined to be Rs.20,000/- to be paid to each injured persons by both the appellants individually within 8 weeks from the day they are released from Jail and shall submit a receipt before the trial court within four weeks thereafter and in case of default both the appellants have to serve remaining sentence of three years as awarded by the trial court.

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Lower Court’s record be sent back to the concerned court. Order Date :-1.4.2022 SB

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Digitally signed by SANDEEP BHATTACHARYA Date: 2022.04.01 16:27:19 IST Reason: Location: High Court of Judicature at Allahabad

Karuwa and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

Karuwa and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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