# Gopal Das & Ors v. State of U.P. 986 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 4 ILRA 985
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Criminal Appeal No. 1406 of 1995
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-das-ors-v-state-of-u-p-986-indian-law-reports-allahabad-series-50063
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 308 - Attempt to commit culpable
homicide
-
The
Code
of
Criminal
Procedure, 1973 - Section 357 - By
impugned order, trial court has convicted
appellants
-
Three
years
rigorous
imprisonment - On 31.03.1990 accused
with his sons surrounded Chailbihari
Sharma and beat him with sticks and
water pipe causing injuries - Occurrence
was witnessed by several persons of
neighbourhood - Brother of injured also
submitted written report - Prosecution
examined PW1, PW2 as witnesses of fact
- PW3, PW4, PW5, PW6 were examined
as formal witnesses - Held, from oral
and
documentary
evidence,
it
is
concluded that on date of occurrence,
appellants with intention of causing
culpable homicide not amounting to
murder, with knowledge of causing
such injury to injured that if he died,
appellants
would
be
guilty,
caused
grievous injury which was dangerous to
life - Trial Court has rightly convicted
the appellant - Hence, incident has
taken place about 33 years ago -
Appellants are on bail for last 33 years -
Sentence awarded is reduced to period
already
undergone,
reasonable
compensation is awarded to victim, ends
of justice would be served. (Para 3, 4,
12, 28, 36)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

4 All. Gopal Das & Ors. Vs. State of U.P.
985

"10. Faced with such a situation,
we were anxious to find out whether there
can be any clinching medical evidence
suggesting rape, but, unfortunately, the
prosecuton has failed to examine Dr.Anjali
Shah, who had examined the prosecutrix.
The MLR was produced in the Court by
P.W.6 J.B. Bhardwaj, Medical Record
Technician. This is a serious lapse on the
part of the prosecution. We are aware that
lapses on the part of the prosecution should
not lead to unmerited acquittals. This is,
however subject to the rider that in such a
situation the evidence on record must be
clinching so that the lapses of the
prosecution could be condoned. Such is not
the case here. The MLR does suggest that
the hymen of the prosecutrix was torn. It is
also true that the prosecutrix has brought
on record FSL report which shows that
human semen was detected on the salwar of
the prosecutrix and on the underwear of the
accused. However, it is difficult to infer
from this that the prosecutrix was raped by
the appellant. The prosecutrix herself has
vacillated on this aspect. It was pointed out
that no injuries were found on the
prosecutrix. We do not attach much
importance to this aspect because presence
of injures is not a must to prove
commission of rape. But the prosecutrix's
evidence is so infirm that it deserves to be
rejected. Her brother has come out with a
case that the appellant tried to rape the
prosecutrix. He did not say that the
appellant raped the prosecutrix. Taking an
overall view of the matter, we find it
difficult to sustain the prosecution case that
the prosecutrix was raped by the appellant.
This is a case where the appellant must be
given benefit of doubt. "

39. The delay in loding the F.I.R., nonexamination of scribe of the F.I.R., the inconsistent testimony of the prosecutrix,
associated circumstances and uncorroborated
medical evidence cast doubt on the testimony
of the victim which failed to inspire
confidence. The evidence of the prosecutrix
is not of that quality on which the appellant
can be convicted. Law in the regard has been
settled.

40. In view of the settled law, since the
evidence of the prosecutrix PW-2, PW-1 are
contradictory,
the
testimony
of
the
prosecutrix has also been contradicted by the
I.O. she is not a credible witnesses, I find that
the trial court has convicted the accused
merely on conjectures and surmises and
assumptions, the prosecution has failed to
prove its case beyond reasonable doubt. The
assumptions have not been corroborated in
any reliable evidence medical does not
support the case of prosecution relating to
rape there is no other corroborative evidence,
I am unable to agree the conclusion arrived at
by the trial court. Accordingly, the judgment
dated 11 .07.2003 passed by the Additional
Sessions Judge (Fat Track Court No. 2),
Raibareli, is set aside. The appellant is
acquitted of all the charges levelled against
him. The appellant is directed to be released
forthwith if he is not required in any other
case.

41. The appeal is accordingly allowed.
----------
(2023) 4 ILRA 985
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1406 of 1995

Gopal Das & Ors. ...Appellants
Versus
State of U.P. ...Respondent
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Sri Rajeev Goswami

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 308 - Attempt to commit culpable
homicide
-
The
Code
of
Criminal
Procedure, 1973 - Section 357 - By
impugned order, trial court has convicted
appellants
-
Three
years
rigorous
imprisonment - On 31.03.1990 accused
with his sons surrounded Chailbihari
Sharma and beat him with sticks and
water pipe causing injuries - Occurrence
was witnessed by several persons of
neighbourhood - Brother of injured also
submitted written report - Prosecution
examined PW1, PW2 as witnesses of fact
- PW3, PW4, PW5, PW6 were examined
as formal witnesses - Held, from oral
and
documentary
evidence,
it
is
concluded that on date of occurrence,
appellants with intention of causing
culpable homicide not amounting to
murder, with knowledge of causing
such injury to injured that if he died,
appellants
would
be
guilty,
caused
grievous injury which was dangerous to
life - Trial Court has rightly convicted
the appellant - Hence, incident has
taken place about 33 years ago -
Appellants are on bail for last 33 years -
Sentence awarded is reduced to period
already
undergone,
reasonable
compensation is awarded to victim, ends
of justice would be served. (Para 3, 4,
12, 28, 36)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Tukaram Gundu Naik Vs St. of Mah., (1994) 1
SCC 465

2. Suresh Sitaram Surve Vs St. of Mah., AIR
2003 SC 344

3. St. of M. P. Vs Vikram Das, (2019) 4 SCC 125

4. Manohar Singh Vs St. of Raj. & ors., (2015) 3
SCC 449

5. Roop Chand Vs St. (NCT) of Delhi, 2020 (3)
ALT (Crl.) 331 (A.P.)

6. Omanakkuttan & ors. Vs St. of Kerala, 2021
(115) ACC 747

(Delivered by Hon'ble Surendra Singh-I, J.)

1. Heard Sri Rajeev Goswami,
learned counsel for the appellants and Sri
Sunil Kumar Tripathi, learned A.G.A. for
the State

2. This criminal appeal has been filed
against the judgement and order dated
29.08.1995 passed by VIIIth Additional
Sessions Judge, Mathura, in Sessions Trial
No. 12 of 1992, State of U.P. Vs. Gopal
Dass and Others arising out of Case Crime
No.
120
of
1990,
Police
Station-
Vrindavan, District- Mathura.

3. By the impugned order, the trial
court has convicted the appellants, Gopal
Dass, Lala, Munna and Ravi u/s 308 I.P.C.
and sentenced them to three years rigorous
imprisonment. During pendency of the
criminal appeal, appellant, Gopal Dass died
and the criminal appeal qua appellant,
Gopal Dass, was abated vide order dated
12.10.2022 of the Court. Thus, this appeal
remains only qua appellant nos. 2, 3 and 4
namely, Lala, Munna and Ravi.

4. The prosecution case in brief is that
on 31.03.1990 at 8.30 a.m., near Gopal
Bhawan Bari Kunj in front of the house of
Purushottam, accused Gopal Dass S/O
Mihi Lal, Munna, Lala and Ravi, all sons of
Gopal Dass, resident of Seva Kunj, Police
Station- Vrindavan, District- Mathura,
surrounded Chailbihari Sharma, and beat
him with sticks and water pipe causing
4 All. Gopal Das & Ors. Vs. State of U.P.
987
injuries to him. At that time, informant,
Saroj Sharma, wife of Chailbihari Sharma,
was at her house. On getting this
information, informant Saroj Sharma ran
and reached to the place of occurrence. Her
husband, Chailbihari Sharma, was lying
unconscious on the road. She carried her
husband on rickshaw to police station
concerned. The occurrence was witnessed
by several persons of the neighbourhood.
On the basis of written report (Ext.Ka.1)
given by informant, Saroj Sharma, N.C.R.
(Ext.Ka.7) u/s 323 I.P.C. was registered in
Police Station- Vrindavan on 31.03.1990 at
9.10 a.m. On 11.04.1990, Girdhari Lal
Sharma, brother of injured Chailbihari,
submitted a written report (Ext.Ka.2) in
Police Station- Vrindavan, in which it
was mentioned that on 31.03.1990 at 8.30
a.m.,
in
Maan
Gali,
Seva
Kunj,
Vrindavan,
accused-appellants,
Gopal
Dass, Munna, Lala and Ravi and nonaccused,
Chhotey
beat
his
brother,
Chailbihari Sharma with lathi and iron
rod.
The
report
regarding
it
was
registered by his sister-in-law (bhabhi),
Saroj Sharma, on the same day in police
station concerned. Due to the injury
caused by accused, the condition of his
brother is serious from the date of
occurrence.
He
was
admitted
in
Methodist Hospital for treatment where it
was found that there is fracture of bone in
his body. The entry regarding registration
of
N.C.R
was
made
in
G.D.
on
31.03.1990 on 10.10 a.m. Certified copy
thereof is (Ext.Ka.8) on record.

5. On the basis of the written report
(Ext.Ka.2) given by Girdhari Lal Sharma
on 11.04.1990, N.C.R. was converted as
Case Crime No. 120 of 1990 u/s 147, 308
I.P.C. Carbon copy of the G.D. regarding
registration of the criminal case under the
aforesaid sections is (Ext.Ka.9).

6. The injured Chailbihari Sharma
was carried to State Contagious Disease
Hospital, Mathura, where Medical Officer
Dr. S.K. Jain had done the medical
examination of the injuries of the injured
Chailbihari Sharma, aged 38 years and
prepared the injury report (Ext.Ka.3). At
the time of occurrence, following injuries
were found on the person of Chailbihari
Sharma :-

(i) Lacerated wound 5 cm x 0.05
cm skin deep on right side of head 10 cm
above the right ear. Margins were
irregular. Blood was oozing.

(ii) Lacerated wound 7 cm x 1 cm
skin deep on left side of head, 10 cm above
the left ear. Margins were irregular. Blood
was oozing.

(iii) Lacerated wound 3 cm x 0.5
cm skin deep 3 cm in the injury no. (ii).
Margins were irregular. Blood was oozing.

(iv) Three contusions of size 9 cm
x 3 cm which were overlapping over one
another on the right side of shoulder. X-ray
advised.

(v) Abrasion red in colour 7 cm x
3 cm on back of right forearm.

(vi) Abrasion 3 cm x 2 cm behind
of right forearm, 5 cm below the injury no.
(v).

7. In the opinion of the Medical
Officer P.W.3 Dr. S.K. Jain, injury nos. (i)
to (iv) were caused by blunt object. Injury
nos. (v) and (vi) appears to be caused by
friction. All the injuries were fresh at the
time of examination. The injuries could be
caused by iron rod or pipe. They could
have been caused on 31.03.1990 at 8.30
a.m.

8. The Investigating Officer PW4 S.I.
Hoti Lal Sharma has prepared the site plan
(Ext.Ka.4). He took the blood-stained
988 INDIAN LAW REPORTS ALLAHABAD SERIES
clothes
worn
by
injured
Chailbihari
Sharma. He took clothes which had become
blood-stained after the occurrence in
possession and prepared the memo thereof
which is (Ext.Ka.5).

9. The injured Chailbihari Sharma
was admitted in the Methodist Hospital,
Mathura on 31.03.1990 where he had
undergone medical treatment. The medical
report and discharge summary of the
hospital is (Ext.Ka.10). In the Methodist
Hospital, Mathura, x-ray of his right
shoulder, chest, head, rt. side chest, palm of
hand was done. X-ray report (material
Exts.1 to 4) is in the trial court file but it
was not proved in the trial court. Injury
summary and discharge report (Ext.Ka.10)
was prepared by Dr. Anita Sundaram which
was proved by P.W.6 Dr. D.W. Thomas.

10.

After
investigation,
the
Investigating Officer submitted chargesheet (Ext.Ka.6) against the accusedappellants, Gopal Das, Munna, Lala and
Ravi and non-convicted accused, Chhotey.

11. The case was committed by the Ist
Additional Chief Judicial Magistrate to the
court of Sessions. On 26.09.1992, the trial
court framed charge u/s 147, 148 and 308
I.P.C. against accused-appellants, Gopal
Das, Munna, Lala and Ravi and nonconvicted/accused, Chhotey.

12. The prosecution in support of the
charges, examined PW1 Smt. Saroj Sharma
and PW2 Chailbihari Sharma as witnesses
of fact whereas PW3 Dr. S.K. Jain, PW4
S.I. Hoti Lal Sharma, PW5 Banney Khan
and
PW6
Dr.
D.W.
Thomas,
were
examined as formal witnesses.

13. P.W.1 Smt. Saroj Sharma and
P.W.2 Chailbihari Sharma gave evidence
about the occurrence. P.W.1 Saroj Sharma
proves written report (Ext.Ka.1). P.W.2
Chailbihari Sharma proves the written
report dated 11.04.1990 submitted by his
brother, Girdhari Lal Sharma in the
concerned police station as (Ext.Ka.2).

14. P.W.3 Dr. S.K. Jain, who was
posted at the time of the occurrence as
Medical Officer, Government Contagious
Disease Hospital, Mathura proves the
medical report dated 31.03.1990 of injured
Chailbihari Sharma as (Ext.Ka.3).

15. The Investigating Officer P.W.4
S.I. Hoti Lal Sharma proves the site plan
(Ext.Ka.4). He also proves the recovery
memo relating to taking the blood-stained
clothes in possession of the injured
(Ext.Ka.5). He also proves the charge-sheet
(Ext.Ka.6) submitted by him in the case in
the court after investigation. He further
proved the N.C.R. No. 41 u/s 323 I.P.C.
dated 31.03.1990 prepared by O/C Premi
Singh. P.W.4 also proved the G.D. relating
to institution of N.C.R. No. 41 u/s 323
dated 31.03.1990 time 9.10 a.m. in P.S.-
Vrindavan as (Ext.Ka.10). He also proved
the conversion of G.D. dated 12.04.2019
relating to N.C.R. No. 41 which has been
converted as Case Crime No. 120 of 1990
u/s 123, 147 and 308 I.P.C. which is
(Ext.Ka.9). P.W.4 also gave evidence
regarding the investigation done by him.

16. P.W.5 Banney Khan, Record
Keeper of Methodist Hospital, Mathura
proved the medical report and the discharge
summary of injured Chailbihari Sharma
(Ext.Ka.10).

17. P.W.6 Dr. D.W. Thomas, proved
the medical report and the discharge
summary of injured Chailbihari Sharma
(Ext.Ka.10) which was prepared by Dr.
4 All. Gopal Das & Ors. Vs. State of U.P.
989
Anita Sundaram who had worked with
P.W.6
Dr.
D.W.
Thomas
and
has
mentioned the following injuries :

(i) bone deep injury on the head;

(ii) fracture in the rib nos. 1, 2, 3,
4, 7 and 8 on the right side of chest

(iii) fracture in the right shoulder
of the injured

(iv) fracture in the proximal
phalynx bone of the index finger of right
hand.

In the opinion of P.W.6 Dr. D.W.
Thomas, injuries were fatal in nature. They
could have been caused on 31.03.1990 at
8.30 a.m. X-ray plates were given to the
injured Chailbihari Sharma which were
produced at the time of examination of
P.W.6 Dr. D.W. Thomas. He proves the xray plates of injured relating to index finger
and right ribs and the wrapper of the x-ray
plate as (material Exts. 1 to 4). Injuries
mentioned in the discharge slip was
prepared on the basis of injury report and
x-ray report.

18. On 20.06.1995, the trial court
recorded the statements u/s 313 Cr.P.C. of
accused, Gopal, Munna, Lala, Chhotey and
Ravi. They have denied the prosecution
case. They have submitted that false
prosecution papers were filed. They have
also stated that injured Chailbihari Sharma
had occupied the land of the accused
persons.
He
falsely
implicated
the
appellants.
Chailbihari
Sharma
had
received injuries in an accident. The
accused examined D.W.1 Brij Gopal in his
defence.

19. Heard learned counsel for the
appellant, learned A.G.A. and perused the
entire appellate as well as lower court
record.

20. The definition of attempt to
culpable homicide is given in Section 308
I.P.C. which is as follows :

308.
Attempt
to
commit
culpable homicide.-- 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
culpable homicide not amounting to
murder,
shall
be
punished
with
imprisonment of either description for a
term which may extend to three years, or
with fine, or with both; and, if hurt is
caused to any person by such act, shall be
punished with imprisonment of either
description for a term which may extend to
seven years, or with fine, or with both.

21. Before the accused can be held to
be guilty u/s 308 I.P.C., it was necessary to
arrive at a finding that the ingredients
thereof namely, requisite intention or
knowledge was existing.

22. In Tukaram Gundu Naik Vs.
State of Maharashtra, (1994) 1 SCC 465,
the Apex Court has held that when the
accused can only be attributed knowledge
that by inflicting such injuries, he was
likely to cause death and attempt to commit
such an offence would be one punishable
u/s 308 I.P.C.

23. Learned counsel for the appellants
has argued that P.W.1 Saroj Sharma is not
an eye-witness. She came at the place of
occurrence only after the incident. There is
only one witness, P.W.2 Chailbihari
Sharma, who is the injured. When only
injured P.W.2 Chailbihari Sharma has
given evidence regarding the occurrence,
conviction cannot be made on the basis of
evidence of single partisan witness.
990 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Learned A.G.A. for the State has
stated that the prosecution has proved the
case beyond reasonable doubt on the basis
of oral and documentary evidence. The
Apex Court has held in Suresh Sitaram
Surve Vs. State of Maharashtra, AIR
2003 SC 344 that the evidence of an
injured eye-witness cannot be discarded in
toto on the ground of inimical disposition
towards the accused particularly where his
evidence when tested in the light of broad
probabilities, it can be concluded that he
was natural eye-witness and had no reason
to concoct a case against the accused. He
has further submitted that in case sentence
is reduced to the period already undergone,
the victim be paid compensation as
provided under Section 357 Cr.P.C.

25. In the light of the above law
propounded by the Apex Court, the
appreciation of evidence of injured P.W.2
Chailbihari Sharma is to be done.

26. P.W.2 Chailbihari Sharma has
proved by his evidence the date, time and
place of occurrence. He has stated that on
31.03.1990 at 8.30 o'clock, he was going to
P.S.- Vrindavan and when he was in front
of the house of Purushottam in Seva Kunj,
accused, Gopal and his sons, Munna,
Chhotey, Lala and Ravi, with the intention
of causing death, beat him with the pipe
and danda. Gopal and Chhotey were armed
with water pipe and others were having
danda in their hands. He got his injuries
medically examined first in Vrindavan and
then in Methodist Hospital, Mathura. Due
to the injuries received by him, he was
admitted in Methodist Hospital, Mathura
for 18-19 days. Due to the injuries received
in the marpeet, he became unconscious. His
ribs were fractured. This witness has been
cross-examined in detail by the defence but
his testimony regarding the date, time and
place of occurrence, participation of
accused in the offence and the injuries
caused by them and the weapon of assault
which they have used in causing injury and
medical treatment of injured in the hospital
first at Vrindavan and then at Methodist
Hospital, Mathura, has not been shaken.

27. P.W.1 Saroj Sharma, wife of
injured Chailbihari Sharma, who had
reached the place of occurrence after the
incident has stated in her evidence dated
08.03.1994 that about 4 years ago at 8.30
a.m. in the morning, accused Gopal,
Munna, Lala, Ravi and Chhotey beat her
husband with danda and water supply pipe
in front of the house of Purushottam in Bari
Kunj. His husband received grievous
injuries on his body. The witness stated that
her injured husband, who was present on
the spot, informed her when she reached
there. P.W.1 Smt. Saroj Sharma has stated
that her husband had told her the names of
the accused persons who had attacked him.
The evidence of P.W.1 Smt. Saroj Sharma
and P.W.2 Chailbihari Sharma has been
corroborated by oral evidence of doctors,
injury report, prosecution papers i.e.
written
report,
chik
F.I.R.,
medical
examination report of victim, Chailbihari
Sharma
at
Government
Hospital,
Vrindavan
and
Methodist
Hospital,
Mathura. The evidence of P.W.1 Smt. Saroj
Sharma and P.W.2 Chailbihari Sharma are
cogent, convincing and reliable. Nothing
has emerged in their cross-examination
which may raise doubt about the veracity of
their evidence.

28. From the appreciation of oral and
documentary evidence, it is concluded that
on the date, time and place of occurrence,
appellants, Munna, Lala and Ravi with the
intention of causing culpable homicide not
amounting to murder with the knowledge
4 All. Gopal Das & Ors. Vs. State of U.P.
991
of
causing
such
injury
to
injured
Chailbihari Sharma that if he died, the
appellants would be guilty of culpable
homicide not amounting to murder, caused
grievous injury which was dangerous to life
to the injured Chailbihari Sharma. The
court has rightly convicted the appellant u/s
308 I.P.C. There is no force in the criminal
appeal which is likely to be dismissed.

29. D.W.1 Brij Gopal has deposed in
his evidence that there was dispute
regarding the house between the parties. He
has stated that Chailbihari Sharma had
received injuries in the accident but due to
the enmity regarding disputed house, he
had falsely implicated the appellants in the
case. D.W.1 Brij Gopal could not narrate
the boundaries of the disputed house.
D.W.1 Brij Gopal is not the eye witness of
the alleged accident in which Chailbihari
Sharma
received
injuries.
Thus,
his
evidence that Chailbihari Sharma received
injuries in some accident and he falsely
implicated the accused of the offence,
cannot be accepted.

30. From the perusal of the record of
the trial court, it is evident that appellants,
Ravi, Lala and Munna were taken into
custody on 01.05.1990. They were granted
bail vide order dated 04.05.1990 by the trial
court. Their bail bonds were accepted on
05.05.1990. Therefore, the appellants had
remained in jail for 5 days during
investigation of the case.

31. 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.

32. 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.

"...
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 provided 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)

"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).

13. 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."
992 INDIAN LAW REPORTS ALLAHABAD SERIES
(State of Madhya Pradesh vs. Udham
and others (2019) 10 SCC 300)

33. 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)

34. 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.

35. 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:

"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."

"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."

"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."

36. Considering the facts and
circumstances of the present case as well as
keeping in view the position of law as
mentioned above and considering that the
incident has taken place on 31.03.1990
about 33 years ago and considering the
judgment passed by Supreme Court in
Roop Chand vs. State (NCT) of Delhi,
2020 (3) ALT (Crl.) 331 (A.P.) and
Omanakkuttan and others vs. State of
Kerala, 2021 (115) ACC 747, that the
appellants are on bail for the last 33 years
and they have not misused the liberty of
bail during the said period, this Court is of
the view that if the sentence awarded is
reduced to the period already undergone
4 All. Raju Vs. State of U.P.
993
and a reasonable compensation is awarded
to the victim, the ends of justice would be
served.

37. In view of above, the appeal is
partly allowed. In judgment and order dated
29.08.1995 passed by VIIIth Additional
Sessions Judge, Mathura, in Sessions Trial
No. 12 of 1992, State of U.P. Vs. Gopal
Dass and Others, the sentence is hereby
modified to the period already undergone
by the appellants and the fine imposed is
raised from Rs.2,000/- to Rs.15,000/- to be
paid by each accused, 50% of which shall
be paid to the injured, Chailbihari Sharma.

38. The appellants, Lala, Munna and
Ravi, each shall deposit the aforesaid
amount of fine within two months from the
date of this judgement. The trial court shall
pay 50% of the amount of fine deposited to
the injured Chailbihari Sharma and in case
of his death, to his successors after proper
identification. In case the appellants do not
deposit the fine within the aforesaid period,
they will have to undergo the sentence
awarded by the trial court.

39. Let a copy of the judgement along
with the record of the case be sent to the
court
concerned
for
execution
of
punishment as modified by the order
passed in this criminal appeal.
----------
(2023) 4 ILRA 993
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE SARAL SRIVASTAVA, J.

Criminal Appeal No. 4611 of 2013

Raju ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajendra Kr. Tripathi, Sri Anil Kumar
Dubey, Sri Narendra Kumar, Sri Rabindra
Bahadur Singh, Sri N.K. Singh

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 201 - Murder - By
impugned order, sentenced to rigorous
imprisonment for life - The Code of
Criminal Procedure, 1973 - Section 313 -
Appeal
against
conviction
-
On
11.10.2012, informant (PW.1) was in his
house
along
with
his
brother
&
anr.person, accused came over there, and
asked his son to accompany him for
sharpening
edges
of
'daranti'
-
Informant's son departed along with
accused but he did not return whole night
- The next day accused was enquired
about whereabouts of deceased, he told
that deceased and he himself consumed
liquor and in order to commit theft of
motorcycle, cajoled him and cut his neck
and threw him away in the canal and
concealed motorcycle in sugar-cane field -
Charges
against
accused
beyond
all
reasonable doubt - Validity - Held, the
F.I.R. becomes doubtful regarding specific
timing of lodging of report, and as to who
dictated F.I.R. and person who wrote it -
Foundation of prosecution case loses
significance, thus rendering F.I.R. ante
time - In the instant case based upon
testimony and circumstance, prove that
F.I.R. is ante time - Factual aspect is
obvious as per testimony of P.W.-1 that
F.I.R. was lodged after preparation of
inquest report - Prior to lodging of report,
the interference and indulgence of police
personnel,
investigating
officer
is
apparent on record - All relevant aspects
and fact of writing of FIR, timing of
preparation of inquest report and factum
of point of false implication of accused
have not been properly appraised by lower