# Lutawan (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-05
- **Case number:** Criminal Appeal No. 2642 of 2009
- **Bench:** Siddharth
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lutawan-in-jail-v-state-of-u-p-45028
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code-Section
304-I/34 -S.C./S.T. Act, 1989 - Section
3(2)(V) - Appeal against conviction.

Sections 304-I, 304-II, 299, 300, 302 & 34
I.P.C. are discussed.

All the witnesses of fact have clearly stated before
the court below that the appellant exhorted his
son and he caused the fatal blow by sariya on the
head of the deceased. (para 18)

The leading feature of Section 34 I.P.C. is
participation in action. It has to be established
that participation was not merely in planning
but also in doing the individual offender must
have
participated
in
the
offence.
His
participation may be slight, but it should be
there.
(para
18)
1 All. Lutawan Vs. State of U.P.
165
In the present case there was meeting of
minds of the appellant with his son in causing
the injury to the deceased. (para 18)

There was certainly active participation of the
appellant in exhorting his son which resulted
into the death of the deceased on account of
blow made by his son. (para 18)

Consideration of the fact situation and also
time lag in between, the court is of the view
that sentence of imprisonment of revisionist for
offence under section 304-II/34 I.P.C. is
reduced to the period already undergone to
meet the ends of justice. (para 39)

Criminal Appeal partly allowed. (E-2)

List of cases cited: -

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
against individual victim but also against
society to which criminal and victim
belong. Punishment to be awarded for a
crime must not be irrelevant but it should
conform to and be consistent with the
atrocity and brutality which the crime has
been perpetrated, enormity of crime
warranting public abhorrence and it should
'respond to the society's cry for justice
against the criminal'. [Vide: Sumer Singh
vs. Surajbhan Singh and others, (2014)
7 SCC 323, Sham Sunder vs. Puran,
(1990) 4 SCC 731, M.P. v. Saleem,
(2005) 5 SCC 554, Ravji v. State of
Rajasthan, (1996) 2 SCC 175].

51. Hence, applying the principles
laid down in the aforesaid judgments and
having regard to the totality of facts and
circumstances of case, nature of offence
and the manner in which it was executed
or committed, we find that punishment
awarded to accused-appellant by Trial
Court in impugned judgment and order is
not excessive and it appears fit and proper
and no question arises to interfere in the
matter on the point of punishment imposed
upon him.

52. In view of above discussion, the
appeal lacks merit and is accordingly,
dismissed. Impugned judgement and order
dated 07.10.2010, is maintained and
confirmed.

53. Lower Court record along with a
copy of this judgment be sent back
immediately to District Court and Jail
concerned for compliance and apprising
the accused-appellant.

54. Before parting, we provide that
Smt. Archana Singh, Advocate, who
assisted as Amicus Curiae, appearing for
appellant in present Jail Appeal, shall be
paid counsel's fee as Rs. 11,500/- for her
valuable assistance. State Government is
directed to ensure payment of aforesaid fee
through Additional Legal Remembrancer,
posted in the office of Advocate General at
Allahabad, without any delay and, in any
case, within one month from the date of
receipt of copy of this judgment.
----------
(2020)1ILR A164

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.11.2019

BEFORE
THE HON'BLE SIDDHARTH, J.

Criminal Appeal No. 2642 of 2009

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

Counsel for the Appellant:
Sri S.K. Pandey, Sri Gaurav Kumar Shukla,
Sri Mirza Ali Zulfiquar

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code-Section
304-I/34 -S.C./S.T. Act, 1989 - Section
3(2)(V) - Appeal against conviction.

Sections 304-I, 304-II, 299, 300, 302 & 34
I.P.C. are discussed.

All the witnesses of fact have clearly stated before
the court below that the appellant exhorted his
son and he caused the fatal blow by sariya on the
head of the deceased. (para 18)

The leading feature of Section 34 I.P.C. is
participation in action. It has to be established
that participation was not merely in planning
but also in doing the individual offender must
have
participated
in
the
offence.
His
participation may be slight, but it should be
there.
(para
18)
1 All. Lutawan Vs. State of U.P.
165
In the present case there was meeting of
minds of the appellant with his son in causing
the injury to the deceased. (para 18)

There was certainly active participation of the
appellant in exhorting his son which resulted
into the death of the deceased on account of
blow made by his son. (para 18)

Consideration of the fact situation and also
time lag in between, the court is of the view
that sentence of imprisonment of revisionist for
offence under section 304-II/34 I.P.C. is
reduced to the period already undergone to
meet the ends of justice. (para 39)

Criminal Appeal partly allowed. (E-2)

List of cases cited: -

1. St. Vs. Saidu Khan, AIR, 1951 Alld. 21 (FB)

2. Afrahim Sheikh Vs. St. of Bengal AIR 1964,
SC 1263

3. Dinesh @ Buddha Vs. St. of Raj., AIR 2006
SC 1267

4. Ramdas & ors. Vs. S. of Mah., (2007) 2 SCC
170

5. Hari Kishan Vs. Sukhbir Singh, (1988) 4 SCC
551

6. Ankush Shivaji Gaikwad Vs. St. of Mah.
(2013) 6 SCC 770

7. K.A. Abbas H.S.A. Vs. Sabu Joseph, (2010) 6
SCC 230

8. Hazara Singh Vs. Raj Kumar & Ors. (2013) 9
SCC 516

9. St. of M. P. Vs. Babulal & Ors (2013) 12 SCC
308

10. George Pon Paul Vs. Kanagalet and others
(2010) 1 SCC (Cri) 1070

11. Nasir Vs. St. of U. P. (2011) 2 SCC (Cri) 136

12. Labh Singh & ors. Vs. St. of Har. & Anr.
(2013) 1 SCC (Cri) 1125
13. Jagpal Singh & ors. Vs. St. of U. P. 2004
(5) ACC 310

14. Raghuvera & ors. Vs. St. of U. P. 1991 (28) ACC 498

15. Satsen Vs. St. of U.P. 2014 (84) ACC 606

(Delivered by Hon'ble Siddharth, J.)

1. Heard Sri Gaurav Kumar Shukla,
learned counsel for the appellant, Sri
Nishant Singh, learned A.G.A. for the
State and perused the lower court record.

2. This criminal appeal is directed
against the judgment and order of
conviction dated 25.04.2009 passed by
Additional Sessions Judge, Fast Track
Court, No. 3, Basti in Special Sessions
Trial No. 12 of 1995, whereby appellant
has been convicted and sentenced for
committing offence under Section 304I/34 I.P.C. for a period of 10 year rigorous
imprisonment and a fine of Rs. 10,000/-
and under Section 3(2)(V) of S.C./S.T. Act
for a period of 10 years rigorous
imprisonment and a fine of Rs. 20,000/-
along with default clauses.

3. The prosecution case is that the
first informant, Dhobi, gave an application
dated
24.04.1995
before
Kotwali,
Khalilabad stating that his wheat crop was
harvested and kept; that its thrashing was
required and he went to the machine of
appellant, Lutawan, with 4-5 bundles of
wheat on 23.04.1995 at about 10:00 p.m
along with his father and brother, Pramod;
that appellant and his son, Tara Lal
Nishad, stated that first you pay the cost of
thrashing of wheat and only then they will
do the same; that first informant stated that
he will pay the cost and asked them to do
his work; that appellant got annoyed and
after abusing the informant and others
accompanying him, exhorted his son, Tara
166 INDIAN LAW REPORTS ALLAHABAD SERIES
Lal Nishad, who caused injury by sariya
(rod) on his brother, Pramod, and he got
injured; that informant took Pramod to
Medical College, Gorakhpur, for treatment
and he died in the Medical College,
Gorakhpur; that after post-mortem of the
deceased he went to the police station and
lodged the report at 24.04.1995 at 20:30
hours; that the aforesaid F.I.R. was
registered as Case Crime No. 140 of 1995,
under Section 304 I.P.C. and Section
3(2)(V) of S.C./S.T. Act.

4. Co-accused, Tara Lal Nishad, was
declared juvenile during the trial and he
was sent for trial before the Juvenile
Justice Board. The appellant was tried by
the Sessions Court.

5. The appellant was charged for
offences under Section 304-I/34 I.P.C. and
Section 3(2)(V) of S.C./S.T. Act to which
the appellant denied and sought trial.

6. Before the trial court the first
informant was examined as P.W.-1; Ram
Pyare, father of the deceased, was
examined as P.W.-2; Sri Ram, eye-witness
was examined as P.W.-3; Vinay Krishna
Biswas, the doctor, who first treated the
injured proved that he first attended the
injured and stitched his wound; that P.W.5,
the Dr. Prakash Chandra, was examined as
P.W.-5, and he proved that on 24.04.1995,
he conducted medical examination of the
deceased at 06:50 a.m; P.W.-6, Dr. A.K.
Srivastava, who conducted the postmortem of the deceased, proved the antemortem injury of the deceased. He found
stitched wound of 10 cm on left parietal
bone of the deceased and found his
parietal bone fractured. Another wound of
3 cm x 2 cm was found on left cheek of
the deceased. He found blood clot in the
brain membrane of the deceased. He
testified that the death of the deceased
took place due to shock and hemorrhage
and he stated that such an injury can be
caused by falling on a hard object,
collision or assault; P.W.-7, Vijay Bahadur
Mall, the scribe of F.I.R., was examined
and he proved the F.I.R. lodged by the
informant; that the Investigating Officer,
Ram Krishna, was examined as P.W.-8,
who proved the investigation record and
charge sheet submitted before the court.

7. The statement of the accusedappellant was recorded under Section 313
Cr.P.C. who stated that he was not present
at the scene of occurrence, when the
incident took place and he has no
knowledge about the same; that he
admitted
that
he
accompanied
the
deceased, Pramod, to the doctor and the
injury was caused by the handle of the
machine;
that
he
denied
the
other
allegations and stated that the statements
of the witnesses against him are false; that
he further stated that only to get
compensation from the government false
case has been lodged against him by the
informant.

8. D.W.-1, Ram Bhajan, stated that
on the date of incident the informant and
others came with their wheat crop on the
machine of the appellant and he informed
them that appellant has gone to take his
dinner; that despite his instructions to the
contrary, Pramod, started the machine and
the handle of the engine got struck in the
machine; that as a result of the shock from
the machine Pramod could not maintain
his balance and fell down and suffered
head injury; that on hearing the noise the
appellant came and took Pramod to the
doctor along with his family members; that
in his cross-examination he admitted that
he used to work as labour on daily wages
1 All. Lutawan Vs. State of U.P.
167
on the machine of the appellant but he
denied any influence of the appellant on
his statement.

9. The witnesses of fact, P.W.-1,
P.W.-2 and P.W.-3, have proved the
prosecution case to the hilt. This court has
gone through their evidence and has found
that there is nothing in their statements
which may suggest that the witnesses have
not deposed truly before the trial court.
The findings recorded by the trial court
regarding consideration of their evidence
does not suffers from any error. The trial
court has also considered the statements of
the other witnesses correctly and has
arrived at correct conclusion of the guilt of
the appellant. It has found that the delay in
the F.I.R. has been properly explained by
the prosecution. Cogent findings have
been recorded regarding the arguments
raised on behalf of the appellant before the
court below, like non-recovery of rod
allegedly used for causing injury to the
deceased, non-examination of the eyewitnesses shown in the FIR, absence of
appellant from the scene of occurrence as
stated by D.W.-1, non-production of
original injury report, etc. The trial court
has found that the prosecution has
succeeded in proving its case against the
appellant beyond all reasonable doubt and
has convicted and sentenced the appellant.

10. Counsel for the appellant has
submitted that the appellant has not been
assigned any role of causing any injury to
the deceased and he has been falsely
implicated only on the allegation that he
exhorted his son, Tara Lal Nishad, who
caused single blow by sariya on the head
of the deceased which resulted in his
death. It has further been submitted that
there was no common intention shared by
the appellant in causing the death of the
deceased, Pramod. In the first information
report and in the statements of the witnesses,
it has not been mentioned that the appellant
ordered his son to cause death of the
deceased. P.W.-1, has only stated that the
appellant directed him to beat and we will see
what happens. P.W.-2 and P.W.-3, have also
not made any specific allegation that the
appellant exhorted his son to cause the
murder of the deceased. It appears that only
abuses were hurled by the appellant and his
son and on sudden provocation the son of the
appellant, who was a juvenile, caused single
blow on the head of the injured which proved
fatal. He has submitted that the implication of
the appellant for committing the offence
under Section 304-1 I.P.C. with the aid of
Section 34 I.P.C. is not warranted in this case.

11. The common intention should be
inferred from the whole conduct of all the
persons concerned and not merely from an
individual act of an individual accused. A
criminal act cannot be assumed to be in
furtherance of the common intention. It is
not to be inferred exclusively from the
criminal act done. The criminal act done is
only one of the factor to be taken into
consideration, but it should not be taken as
sole factor. The common intention ought
to be determined from the facts and
circumstances which existed before the
commencement of the criminal act since
the
criminal
act
committed
is
in
furtherance of such an intention.

12. The inference aforesaid may be
drawn from the conduct of the accuseds
for their participation in the commission of
crime, circumstances and character of
attack, the nature of injuries inflicted and
the nature of weapons used.

13. If the assault is not sudden,
common
intention
may
be
easily
168 INDIAN LAW REPORTS ALLAHABAD SERIES
presumed, unless there is something to
show that there was no opportunity for the
accused to have a prior concert. When
several persons inflict several injuries,
common intention can be safely presumed.
However in a case where there is sudden
provocation and a single blow by one of
the accused is only found to have been
caused on the deceased, only on the mere
allegation that such a blow was caused to
the deceased on the exhortation of the only
other accused cannot be easily presumed.
A mere direction from one accused to the
other to carry out that direction by the
other may be only instigation and not a
case of a joint act falling under Section 34
I.P.C.

14. In the present case the allegation
is that when the informant, P.W.-1, his
father, P.W.-2 and the deceased, Pramod,
went with their stalks of wheat on the
machine of the appellant, the appellant
directed them along with his son to first
make payment for thrashing of the wheat
stalks by their machine. The informant and
his companion stated that they will make
the payment and asked them to start the
work which resulted in hurling of abuses
by the appellant and his son and finally he
exhorted his son to beat them and his son
picked up a rod and caused injury to
Pramod, which proved fatal. Counsel has
stressed that there was no common
intention to cause the injury or death of the
deceased on behalf of the appellant along
with his son. It was under the heat of the
moment that he is alleged to have ordered
his son to beat and he caused injury to the
deceased, Pramod. He has submitted that
there was no pre-planning or prior concert
on the part of the appellant with his son to
commit such an act which would result in
the death of the deceased. Their common
intention was not to permit the informant
to put his stalks wheat in the machine of
the appellant and his son without prior
payment of the cost of the machine. They
opposed the request of the informant and
other to put their stalks wheat in the
machine without payment of money and
when they did not relent he is alleged to
have abused them and ordered his son to
beat them. The son complied his command
and it resulted into the fatal blow on the
head of the deceased.

15. He has submitted that it is a case
of sudden provocation and the prosecution
has failed to prove that the appellant
exhorted his son to cause the injury to the
deceased. Infact it was the individual act
of his son who got annoyed by the conduct
of the informant and others and when he
caused the injury to Pramod, the appellant
repented and went to the doctor along with
the injured as admitted by him in his
statement under Section 313 Cr.P.C. P.W.-
1, has admitted that the appellant had
accompanied them to clinic of Dr. Biswas,
soon after the incident but he did not went
with him when he took the deceased to
Gorakhpur Medical College.

16. Learned A.G.A. has opposed the
argument advanced on behalf of the counsel
for the appellant. He has submitted that the
appellant shared common intention with the
co-accused, who was his son, in causing the
death of the deceased. The argument that
there was no element of Section 34 I.P.C.
involved in the act of the appellant is without
any substance. The initial hurling of abuses
by the appellant and his son proved beyond
doubt that both had common intention of
causing injury to the deceased. The
conviction and sentence of the appellant
under Section 304-I/34 I.P.C. is fully
justified and this appeal deserves to be
dismissed.
1 All. Lutawan Vs. State of U.P.
169

17. After hearing the rival contentions,
it appears that the common intention of
causing death of the deceased is discernible
from the material on record but the conviction
and sentence of the appellant under Section
304-I/34 I.P.C. does not appears to be
justified.

18. All the witnesses of fact have
clearly stated before the court below that
the appellant exhorted his son and he
caused the fatal blow by sariya on the head
of the deceased. The only circumstance
pointed out by the counsel for the
appellant is that the appellant accompanied
the deceased to the doctor would not
mitigate his role of exhorting his son to
cause the alleged act. To convict the
appellant constructively under Section 34
I.P.C. it is not necessary to find that he
actually struck the fatal blow, or any blow,
but there must be clear evidence of some
action or conduct on his part to show that
he shared in the common intention of
causing the alleged crime. The leading
feature of Section 34 I.P.C. is participation
in action. It has to be established that
participation was not merely in planning
but also in doing their the individual
offender must have participated in the
offence. His participation may be slight,
but it should be there. In the present case
there was meeting of minds of the
appellant with his son in causing the injury
to the deceased. It resulted into the offence
of culpable homicide not amounting to
murder. The intention was only to cause
beating and in execution of such an
intention the appellant exhorted his son.
The
Section
34
I.P.C.
requires
participation, it may be active or passive.
For conviction with the help of this
Section, it is not necessary that every
accused
should
himself
commit
the
offence
or
take
active
part
in
it.
Admittedly, the son of the appellant was a
juvenile on the date of incident and had the
appellant, his father not ordered him to
cause the crime alleged, he would not have
committed the same. Being boy of tender
age he proceeded to cause the injury only
after getting command from his father.
Had the father not permitted him to exceed
his limits he would have not cause the
same.
There
was
certainly
active
participation of the appellant in exhorting
his son which resulted into the death of the
deceased on account of blow made by his
son.

19. However, this court finds that at
the most the appellant could have been
convicted and sentenced for committing
offence under Section 304-II I.P.C. and not
under Section 304-I I.P.C. read with
Section 34 IPC. A full bench judgment of
this High Court in State vs. Saidu Khan,
AIR, 1951 Allahabad 21 (FB) has held
that the common intention of Section 34
I.P.C. is not necessarily confined to an
intention to commit the very crime with
which the accused is charged. A number of
persons may act in pursuance of common
intention and can be shown to have a
knowledge of that act either singly or
jointly with others which is likely to cause
death and every such person would be
punishable under Section 304-II I.P.C.
There is no conflict between the kind of
knowledge contemplated by Section 304-II
I.P.C.
and
the
common
intention
contemplated by Section 34 I.P.C. If any
one or more of them is proved to have the
requisite kind of intention, e.g., the
intention expressed in the earlier part of
Section 299 I.P.C., he will be punishable
either under Section 302 I.P.C. or under
Section 304-I I.P.C., as the case may be. If,
however, there is only guilty 'knowledge'
as distinct from guilty 'intention', i.e.,
170 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge that the act which is being
performed may result in death, he will be
punishable under Part -II of Section 304
I.P.C. There is no difficulty in applying
Section 34 I.P.C. so interpreted to a case
which falls under Section 304-II I.P.C. The
common intention in the one case and the
knowledge that the act is likely to bring
about death in the other, do not come into
conflict at all. The result is that it is
possible to convict an accused person of
an offence under Section 304-II I.P.C. read
with Section 34 I.P.C., provided the Court
is of the opinion that each person taking
part in committing the crime in furtherance
of the common intention of all had
knowledge that their act was likely to
cause death. The Apex Court had approved
the full bench judgment of this court in
Afrahim Sheikh vs. State of Bengal AIR
1964, SC 1263.

20. Consequently, this court finds
that the conviction and sentence of the
appellant under Section 304-I/ 34 I.P.C. is
not justified and the same is converted into
Section 304-II/34 I.P.C.

21. The conviction of the appellant
for committing the offence under Section
3(2)(V) of SC/ST Act is not justified since
there is no evidence on record that the
offence
against
the
deceased
was
committed on the ground that he was a
member
of
Scheduled
Caste
and
Scheduled Tribe.

22.

For
appreciation
of
the
commission of the offence under Section 3
(2) (5) SC/ST Act, it would be appropriate
to have a glance over the judgment in the
case of Dinesh @ Buddha v. State of
Rajasthan, AIR 2006 SC 1267. The
observation of the Hon'ble Apex Court are
reproduced here below:-

"15.
Sine
qua
non
for
application of Section 3(2)(v) is that an
offence must have been committed against
a person on the ground that such person is
a member of Scheduled Castes and
Scheduled Tribes. In the instant case no
evidence has been led to establish this
requirement. It is not case of the
prosecution that the rape was committed
on the victim since she was a member of
Scheduled Caste. In the absence of
evidence to that effect, Section 3(2)(v) has
no application. Had Section 3(2)(v) of the
Atrocities Act been applicable then by
operation of law, the sentence would have
been imprisonment for life and fine.

16. In view of the finding that
Section 3(2)(v) of the Atrocities Act is not
applicable, the sentence provided in
Section 376(2)(f), IPC does not per se
become life sentence."

23. Hon'ble Supreme Court in
Ramdas
and
Ors.
v.
State
of
Maharashtra, (2007) 2 SCC 170 has held
as under :-

"11. At the outset we may
observe
that
there
is
no
evidence
whatsoever to prove the commission of
offence under Section 3(2)(v) of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The
mere fact that the victim happened to be a
girl belonging to a Scheduled Caste does
not attract the provisions of the Act. Apart
from the fact that the prosecutrix belongs
to the Pardhi community, there is no other
evidence on record to prove any offence
under the said enactment. The High Court
has also not noticed any evidence to
support the charge under the Scheduled
Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 and was perhaps
persuaded to affirm the conviction on the
1 All. Lutawan Vs. State of U.P.
171
basis that the prosecutrix belongs to a
Scheduled
Caste
community.
The
conviction of the appellants under Section
3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 must, therefore, be set aside." .

24. The Appellant was aged about 60
years on 25.03.2008 when his statement
was recorded under Section 313 Cr.P.C.
Now, he must be aged about 71 years. The
incident in dispute took place in the year
1995.

25. The Hon'ble Supreme Court has
urged all the Courts time and again to
exercise the power under Section 357
Cr.P.C. 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.

26. 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.

27. 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.

28. While the award or refusal of
compensation in a particular case may be
within the Court's discretion, there exists a
172 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

29. 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.

30. As regards sentencing policy a
Bench of 3-Hon'ble Judges of the Apex
Court in the case of Hazara Singh Versus
Raj Kumar & Ors. (2013) 9 Supreme
Court Cases 516 has highlighted the
'sentencing policy' after taking note of its
earlier decisions. Relevant para-13 of the
report, reads as under:

"17)
We
reiterate
that
in
operating the sentencing system, law
should adopt the corrective machinery or
deterrence based on factual matrix. The
facts and given circumstances in each
case, the nature of the crime, the manner
in which it was planned and committed,
the motive for commission of the crime, the
conduct of the accused, the nature of
weapons used and all other attending
circumstances are relevant facts which
would enter into the area of consideration.
We also reiterate that undue sympathy to
impose inadequate sentence would do
more harm to the justice system to
undermine the public confidence in the
efficacy of law. It is the duty of every court
to award proper sentence having regard to
the nature of the offence and the manner in
which it was executed or committed. The
Court must not only keep in view the rights
of the victim of the crime but also the
society at large while considering the
imposition of appropriate punishment. "

31. Almost same principles on
sentencing were propounded by the Apex
Court in the case of State of M. P. vs
Babulal & Ors (2013) 12 Supreme Court
Cases 308, in the following terms :

"19. In view if the above, the law
on the issue can be summarised to the
effect that one of the prime objectives of
criminal law is the imposition of adequate,
just, proportionate punishment which is
commensurate with the gravity and nature
of the crime and manner in which the
1 All. Lutawan Vs. State of U.P.
173
offence is committed. The most relevant
determinative
factor
of
sentencing
is
proportionality
between
crime
and
punishment keeping in mind the social
interest and consciousness of the society. It is
a mockery of the criminal justice system to
take a lenient view showing mis-placed
sympathy to the accused on any consideration
whatsoever including the delay in conclusion
of criminal proceedings. The Punishment
should not be so lenient that it shocks the
conscious of the society being abhorrent to
the basic principles of sentencing."

32. It would be useful to note down
certain cases where the Court has
considered the period of pendency of
appeal and the date of incident in
converting the custodial sentence into fine.

33. George Pon Paul Vs. Kanagalet
and others (2010) 1 SCC (Cri) 1070- in
this case, the appellant was found guilty
for the offence punishable u/s 326 and 452
IPC. He was sentenced to confinement till
rising of the Court and fine with default
stipulation. The High Court on revision by
the
victims
enhanced
the
sentence,
however, the Apex Court did not interfere
in the sentence awarded by the trial Court
due to long passage of time.

34. Nasir Vs. State of U. P. (2011) 2 SCC
(Cri) 136 - The appellant was found guilty for
the offence punishable u/s 399/402 IPC and 25
(1)(a) Arms Act and was sentenced to five years'
imprisonment u/s 399/402. The occurrence had
taken place about 29-years ago and the
appellant remained in custody for more than six
months, therefore, the sentence awarded to the
appellant was reduced to the period already
undergone by him.

17. State of U. P. Vs. Siyaram
and another (2013) 2 SCC (Cri) 137 - in
this case appellant Jiya Lal was found
guilty for the offence punishable u/s
307/34 IPC, however considering the fact
that the incident had taken place in the
year 1988, appellant has now become an
aged person and there is nothing on record
to show that he is either habitual offender
or previous convict, his sentence was
reduced to already under gone but fine was
increased to Rs. 10,000/-. In State appeal,
the Apex Court did not approve the
reduction of sentence, however refused to
interfere because the prosecution had been
initiated in the year 1988, but fine was
enhanced to Rs. 25,000/-.

35. Labh Singh & others Vs. State
of Haryana & Anr. (2013) 1 SCC (Cri)
1125 - in this case the appellants were
found guilty for the offences punishable
u/s 326/324/323 r/w Section 34 IPC. The
appellants were very old I. e. 82, 72 and 62
years respectively, incident was 27-years
old and they had undergone part of the
sentence, therefore, the Apex Court
directed each appellant to pay Rs. One
lakh
compensation
to
the
complainant/injured persons and their
sentence was reduced to period already
undergone by each of them.

36. Jagpal Singh & others Vs. State
of U. P. 2004 (5) ACC 310 - this Court
vide judgment dated 26.6.2004 found that
the incident had taken on 1.9.1977, the
appellants were convicted on 23.4.1981
u/s 325/34 and 324 IPC and so each was
sentenced to pay fine of Rs. 2,000/- u/s
324 IPC and Rs. 4,000/- u/s 325/34 IPC.

37. Raghuvera & Ors Vs. State of U.
P. 1991 (28) ACC 498, - the trial Court and
the appellate Court have convicted the five
revisionists for the offences punishable u/s
147 and 307/149 and were sentenced to
174 INDIAN LAW REPORTS ALLAHABAD SERIES
R.I. for one year u/s 147 and five years' R.I. u/s
307/149 IPC. In revision this court converted
the conviction into sections 147, 323/149,
324/149 and 325/149 IPC and observed that all
the offences were committed in the same
transaction, so separate sentences need not be
recorded. The revisionists were sentenced to
period of imprisonment already under gone by
each of them with fine of Rs. 500/- each. It was
further observed that the incident took place
about 8-years ago and injured can be
compensated with fine. It was held that short
term sentences now are not likely to serve any
useful purpose.

38. Satsen Vs. State of U. P. 2014
(84) ACC 606, - in this case the appellant
was convicted for the offence punishable
u/s 307 IPC, but considering the fact that
the incident is 33 years' old, appeal came
up for hearing after 32-years and the
appellant is also ill, the sentence of three
years' R.I. awarded by the trial Court was
converted into fine of Rs. 30,000/-, out of
which Rs. 25,000/- was to be paid to the
injured, if he is alive or his legal heirs.

39. Having an overall consideration
of the fact situation and also time lag in
between, the court is of the view that
sentence of imprisonment of revisionist for
offence under section 304-II/34 I.P.C. is
reduced to the period already undergone to
meet the ends of justice. The fine of Rs.
2,00,000/- is directed to be paid to the
legal heirs of the deceased, Pramod
Kumar, as compensation. The appellant,
Lutawan, is directed to deposit Rs.
2,00,000 (Two lakhs) before the trial court
within two months and on receipt of the
amount same shall be released in favour of
the legal heirs of the deceased, Pramod.
Any amount deposited towards fine by the
appellant shall be adjusted. This amount
shall be paid to the mother of the deceased
or if she is not alive to her legal heirs. In
case of failure of deposit of the amount by
the appellant he shall be taken into custody
forthwith and required to serve out the
remaining sentence as per the order of the
trial court except for offence under Section
3(2)(V) of SC/ST Act.

40. The judgment and order of the
trial court is set aside. The appellant is on
bail his bail bond and sureties are
discharged.

41. The office is directed to send
back the record of the court below along
with copy of this judgment and order for
compliance.

42. This criminal appeal is partly
allowed.
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(2020)1ILR A174

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 3136 of 1983

Dhurandher Singh ...Appellant(In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri T. Rathore, Sri Kamal Kumar, Sri Namit
Srivastava, Sri Rakesh Kumar Singh

Counsel for the Opposite Party:
D.G.A., A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 374(2) - Indian Penal Code, 1860
- Section 302 & Juvenile Justice (Care
and Protection of Children) Act, 2015 -