Penal Code, 1860 - S. 325 - Punishment for voluntarily causing grievous hurt - Once the accused is held guilty of commission of offence punishable under Section 325 IPC, then imposition of jail sentence and fine on the accused is mandatory. In other words, the award of punishment would include both, i.e., jail sentence and fine. So far as jail sentence is concerned, it may extend upto 7 years as per Court’s discretion whereas so far as fine amount is concerned, its quantum would also depend upon the Court’s discretion.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[R.K. AGRAWAL] AND [ABHAY MANOHAR SAPRE] JJ.
November 06, 2017
CRIMINAL APPEAL
No.2437 OF 2010
The State of
Uttar Pradesh Appellant(s)
VERSUS
Tribhuwan & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre,
J.
1. This
appeal is filed by the State against the judgment and order dated 10.02.2006 of
the High Court of Judicature at Allahabad in Criminal Appeal No.211 of 1982
whereby the High Court partly allowed the appeal filed by the accused persons
and while upholding the conviction of the five accused interfered in the
sentence and its quantum awarded to the accused persons by order dated
22.01.1982 passed by the IVth Additional Sessions Judge, Azamgarh in Sessions
Trial No.132 of 1981.
2. Having
regard to the short controversy, which now remains for decision in this appeal
as a result of subsequent events occurring in the case after the incident in
question which took place way back in the year 1980, it is not necessary to set
out the facts in detail except those which are relevant for the disposal of the
appeal.
3. Six
accused persons, (1) Tribhuwan (2) Sita Ram (3) Ram Suresh (4) Rajendra (5) Ram
Vijay and (6) Jogendra were the residents of a village - Seerpatti District
Azamgarh (UP). One Ram Lagan (deceased) was also the resident of same village.
The houses of accused persons and Ram Lagan were situated in the same cluster
and were in the close vicinity of each other. All the accused persons, Ram
Lagan and his family members were known to each other.
4. On
14.06.1980 around 8.00p.m., Tribhuwan was passing in front of Ram Lagan's house
when pet dog of Ram Lagan sitting in front of his house started barking on
Tribhuwan, due to which Tribhuwan got infuriated and started hurling filthy
abuses to Shobh Nath-son of Ram Lagan, his family members and Ram Lagan, who were
sitting on the door steps of their house.
5. This
incident, unfortunately, aggravated and led to filthy verbal exchanges between
Ram Lagan, Shobh Nath and Tribhuwan. Tribhuwan then went to his house after
threatening Ram Lagan and his son that he would come back soon to teach them a
lesson. After
sometime, Tribhuwan came back along with five persons, namely, Sita Ram, Ram
Suresh, Ram Vijay, Rajendra and Jogendra with weapons (Pistol, Farsa, Lathi,
Spear) in their hands. This incident attracted many persons living in the area
and who were passing on the road. The altercation and the attack by the accused
persons resulted in causing injuries to Ram Lagan and one Baij Nath (PW-2).
Both injured persons were taken to nearby hospital for treatment. After sometime,
Ram Lagan succumbed to his injuries in the hospital whereas Baij Nath survived.
6. After
making necessary investigation, six accused persons, named above, were
apprehended and put to trial for commission of the offences punishable under Sections
147, 148, 302, 324/149 and 325/149 of the Indian Penal Code, 1860 (hereinafter
referred to as “IPC”) in Session Trial No.132 of 1981 before the IVth Additional
Sessions Judge, Azamgarh.
7. The
Sessions Judge, by his order 22.01.1982, acquitted one accused-Jogendra from
all the charges whereas convicted remaining five accused and sentenced each of
them as under:
|
Name of the accused
|
conviction
|
Sentence
|
|
Ram Vijay
|
U/S 302 IPC
Section 325/149 IPC
Section 148 IPC
|
Life imprisonment
RI for four years
RI for two years
|
|
Tribhuwan
|
Section 324/149 IPC
Section 325/149 IPC
Section 148 IPC
|
RI for two years
RI for four years
RI for two years
|
|
Sita Ram
|
Section 324/149 IPC
Section 325/149 IPC
Section 147 IPC
|
RI for two years
RI for four years
RI for one year
|
|
Ram Suresh
|
Section 147 IPC
Section 324/149 IPC
Section 325/149 IPC
|
RI for one year
RI for two years
RI for four years
|
|
Rajendra
|
Section 147 IPC
Section 324/149 IPC
Section 325/149 IPC
|
RI for one year
RI for two years
RI for four years
|
8. The
five accused, namely, Tribhuwan, Sita Ram, Ram Suresh, Rajendra and Ram Vijay,
who suffered conviction and sentence, filed Criminal Appeal No.211/1982 before
the High Court. So far as the State is concerned, they did not file any cross
appeal against that part of the order of the Sessions Court by which one
accused person-Jogendra was acquitted of the charges and other accused persons
though convicted for other offences but stood acquitted of the charge of
murder. As a consequence, the order of the Sessions Judge so far as the State
was concerned, became final.
9. The High Court, by impugned judgment, partly allowed
the appeal and while upholding the conviction of the five accused interfered in
the sentence and its quantum awarded to each accused persons. The High Court
modified the sentence of the five accused as under: -
|
Name of the accused
|
conviction
|
Sentence
|
|
Ram Vijay
|
Section 304 Part I IPC
Section 148 IPC
Section 325/149 IPC
|
RI for 10 years
Fine of Rs,3000/- In default of payment of fine, to undergo RI for
three months
Fine of Rs.10,000/- In default of payment of fine, to undergo RI for
one year
|
|
Tribhuwan
|
Section 148 IPC
Section 325/149 IPC
|
Fine of Rs,3000/- In default of payment of fine, to undergo RI for
three months
Fine of Rs.10,000/- In default of payment of fine, to undergo RI for
one year
|
|
Sita Ram
|
Section 147 IPC
Section 325/149 IPC
|
Fine of Rs.1000/- In default of payment of fine, to undergo RI for
one month
Fine of Rs.10,000/- In default of payment of fine, to undergo RI for
one year
|
|
Ram Suresh
|
Section 147 IPC
Section 325/149 IPC
|
Fine of Rs.1000/- In default of payment of fine, to undergo RI for
one month
Fine of Rs.10,000/- In default of payment of fine, to undergo RI for
one year
|
|
Rajendra
|
Section 147 IPC
Section 325/149 IPC
|
Fine of Rs.1000/- In default of payment of fine, to undergo RI for
one month
Fine of Rs.10,000/- In default of payment of fine, to undergo RI for
one year
|
10. The State, however, felt aggrieved of
the judgment of the High Court, filed this appeal by way of special leave
before this Court.
11. During pendency of this appeal, two respondents, namely,
Sita Ram (respondent No.2) and Rajendra (respondent No.4) died. As a
consequence thereof, the appeal against Sita Ram and Rajendra stood abated. Ram
Suresh (respondent No.3) also died and the appeal stood dismissed as abated
against him also by this Court’s order dated 26.07.2010.
12. So
far as the appeal against Ram Vijay (respondent No.5) is concerned, the same
was also dismissed by this Court’s order dated 26.07.2010 for non-compliance of
the orders by the appellant (State) qua
Ram Vijay. As a consequence thereof, the
appeal against Ram Vijay also does not survive for its consideration on merits.
13. This
appeal is now survived only against Tribhuwan (respondent No.1) for its
consideration on merits.
14. The short question, which arises for consideration
in this appeal, is whether any case is made out by the State against accused
person- Tribhuwan (respondent No.1) seeking any kind of interference in his
order of conviction and acquittal or in award of sentence and, if so, to what
extent?
15. Heard Mr. Ratnakar Dash, learned senior counsel for the
appellant-State and Mr. Sidharth Dave, learned counsel for the respondent.
16. Learned
counsel for the appellant (State) has argued only one legal point in support of
the appeal. According
to learned counsel, the Sessions Judge rightly convicted respondent No.1
(Tribhuwan) for an offence punishable under Section 325 read with Section 149
IPC and, accordingly, awarded rigorous imprisonment of four years to him but
the High Court though was right in upholding the conviction fell in error in
setting aside the jail sentence of four years awarded to him by the Sessions
Court and substituting the same by imposing only a fine of Rs.10,000/-.
17. Learned
counsel urged that imposition of jail sentence and fine both is mandatory once
the accused is held guilty for the offence punishable under Section 325 IPC
which may extend upto 7 years. Learned counsel urged that the High Court, in
its discretion, could reduce the award of jail sentence to any period less than
four years but, in no case, it could set aside the entire jail sentence and
substitute it by awarding a sentence of fine of Rs.10,000/-. It is not
permissible in law and hence to this extent, the judgment of the High Court
deserves to be set aside and the order of the Sessions Judge be restored.
18.
In reply, the submission of learned counsel for respondent No.1
(accused-Tribhuwan) was that admittedly respondent No.1 has undergone 40 days’ jail
sentence partly as under-trial prisoner and remaining after suffering the
conviction from the Sessions Court. It was, therefore, his submission that such
imprisonment can be taken as imposing jail sentence of 40 days to respondent
No.1 under Section 325 IPC. In other words, his submission was that though the
High Court instead of awarding any jail sentence awarded only the fine of
Rs.10,000/- but since respondent No.1 has, in the meantime, already undergone
40 days’ jail sentence partly after his arrest pending investigation, inquiry
and then partly during pendency of trial and appeal, he should be held to have
been awarded jail sentence for 40 days for an offence punishable under Section
325 IPC. Learned counsel urged that respondent No.1 would thus be entitled to
take benefit of set off of the period as already undergone by him under Section
428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the
Code”) once he is awarded jail sentence to that extent on his conviction.
19. Learned
counsel further pointed out that this Court should also take into consideration
the two circumstances appearing in the case, namely, the incident in question
occurred in 1980 and in the meantime, 37 years has passed in prosecuting this litigation,
and second, both the Courts below, on appreciation of evidence, have come to a
conclusion that no injury was caused by respondent No.1 to the deceased and to
injured Baij Nath (PW-2). It was, therefore, his submission that the interest
of justice would, accordingly, be met, if respondent No.1's conviction under
Section 325 IPC is maintained by awarding him jail sentence of what he has
already undergone, i.e., 40 days with fine amount of Rs.10,000/- which has
already been awarded by the High Court. Such order of conviction would be in conformity
with the requirement of Section 325 of the IPC.
20. Having
heard learned counsel for the parties and on perusal of the record of the case,
we find force in the submission of the learned counsel for the appellant and
also of respondent No.1 (Tribhuwan).
21. Section
325 of IPC and Section 428 of the Code are relevant for deciding the appeal.
These Sections read as under:
Section
325 of IPC
“325. Punishment for voluntarily causing grievous hurt.-Whoever,
except in the case provided for by section 335, voluntarily causes grievous
hurt, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.”
Section 428 of
Cr.PC
“428. Period of detention undergone by the accused to be set off against
the sentence of imprisonment.-Where an accused person has, on conviction, been
sentenced to imprisonment for a term, not being imprisonment in default of
payment of fine, the period of detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and before the date of such conviction,
shall be set off against the term of imprisonment imposed on him on such conviction,
and the liability of such person to undergo imprisonment on such conviction shall
be restricted to the remainder, if any, of the term of imprisonment imposed on
him: Provided that in cases referred to in section 433A, such period of
detention shall be set off against the period of fourteen years referred to in
that section.”
22. So far as
Section 325 IPC is concerned, its reading would show that once the accused is
held guilty of commission of offence punishable under Section 325 IPC, then
imposition of jail sentence and fine on the accused is mandatory. In other
words, the award of punishment would include both, i.e., jail sentence and
fine. So far as jail sentence is concerned, it may extend upto 7 years as per
Court’s discretion whereas so far as fine amount is concerned, its quantum
would also depend upon the Court’s discretion.
23. So
far as Section 428 of Code is concerned, it provides that the period of
detention spent in jail as under-trial or as convict will be set off against
his total jail sentence once awarded to him in connection with the same offence.
24. This
Court (Three Judge Bench) had the occasion to interpret Section 428 of the Code
in the case of State
of Maharashtra & Anr. vs. Najakat Alia Mubarak Ali, (2001) 6 SCC 311 wherein this Court speaking
through Justice K.T. Thomas representing majority view held as under:
“15…………We may now decipher the two
requisites postulated in Section 428 of the Code:
(1) During the stage of investigation,
enquiry or trial of a particular case the prisoner should have been in jail at
least for a certain period.
(2) He should have been sentenced to a
term of imprisonment in that case.
16.
If the above two conditions are satisfied then the operative part of the provision
comes into play i.e. if the sentence of imprisonment awarded is longer than the
period of detention undergone by him during the stages of investigation,
enquiry or trial, the convicted person need undergo only the balance period of
imprisonment after deducting the earlier period from the total period of
imprisonment awarded. The words “if any” in the section amplify that if there
is no balance period left after such deduction the convict will be entitled to
be set free from jail, unless he is required in any other case. In other words,
if the convict was in prison, for whatever reason, during the stages of
investigation, enquiry or trial of a particular case and was later convicted
and sentenced to any term of imprisonment in that case the earlier period of
detention undergone by him should be counted as part of the sentence imposed on
him.”
25. In our considered
opinion, the High Court was, therefore, not right in setting aside the entire
jail sentence of respondent No.1 while upholding his conviction under Section
325 IPC. The High Court, in our view, ought to have either upheld the award of
jail sentence of four years awarded by the Sessions Court or reduce the jail
sentence to any reasonable term but it had no jurisdiction to fully set aside
the jail sentence and substitute it by imposing only fine of Rs.10,000/-.
26. As
rightly argued by the learned counsel for respondent No.1, the period already
undergone by respondent No.1 (40 days) while respondent No.1 was in detention,
as under-trial and as convict, was also a jail sentence and could be treated as
jail sentence once awarded to respondent No.1 under Section 325IPC, and
accordingly its benefit by way of set off could be given to him under Section
428 of Code.
27. In
our considered opinion, having regard to the time consumed in the litigation
(37 years) coupled with the findings of two Courts below wherein it was held that
respondent No.1 did not cause any injury to the deceased and injured Baij Nath
(PW-2), we are inclined to uphold respondent No.1’s conviction under Section 325
IPC and award to respondent No.1’s punishment of imprisonment of 40 days with
fine of Rs.10,000/- and in default of payment of fine, to undergo one month
rigorous imprisonment.
28. Since
respondent No.1 has already undergone the jail sentence of 40 days partly as
under-trial and partly as convict, he is not required to undergo any further
jail sentence in the case at hand.
29. Respondent
No.1, however, claims to have deposited a fine amount of Rs.10,000/- imposed by
the High Court. If that be so then he need not undergo any more jail sentence.
However, this fact must be verified by the Sessions Court on receipt of this
judgment.
30. The
appeal thus is allowed in part. The impugned judgment is modified to the extent
indicated above.
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