# Ram Sarikh & Ors. (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 837
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-25
- **Case number:** Criminal Appeal No. 3122 of 1985
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-sarikh-ors-in-jail-v-state-of-u-p-48051
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 357, 357(a), - Indian
Penal Code, 1860 - Section 147, 148, 149,
307 & 323 - Criminal Appeal - challenging the
judgment & Order of Conviction & Sentence by
the Trial Court - allegations are cutting Lathi
from informant's bamboos trees and when
forbid them by informant's son accused persons
abused him and assaulted upon him with Danda
& Bhala - Evaluation of evidences - trial court
rightly convicted and sentenced to the accusedappellants - Principle of Sentencing - since,
incident was took place at the spur of moment
and without any pre-plan and they are all living
with peace and harmony for more than 35 years
having no any criminal history - thus, instead of
sending them into jail, in view of law
propounded
by
Supreme
Court
regarding
providing compensation to the victim - Appeal is
partly allowed & sentence is modified -
appellants/accused are directed to pay fine &
compensation to the injured person - direction
accordingly. (Para - 19, 20, 25)

Appeal partly allowed. (E-11)
838 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

12 All. Ram Sarikh & Ors. Vs. State of U.P.
837
have otherwise not seen the incident and
their testimony also does not support the
prosecution case. The court below has also
not noticed that in the bed head ticket also
it is mentioned that someone had thrown
acid on informant's son without naming the
accused appellant as being the author of the
injury.

31. The recovery of clothes and
plastic bottle by the prosecution at best
shows that injury was caused to the
deceased by throwing of acid. Burn injury
caused to the injured is otherwise not
disputed. In such circumstances, the mere
recovery of burnt clothes or plastic bottle,
etc., would be sufficient to prove the cause
of injury but it cannot be relied upon to
implicate the appellant when there is
otherwise no evidence to connect him to
the commissioning of the offence itself.
The responsibility of the prosecution is not
only to prove that the offence was
committed but it has to prove that the
commissioning of offence is by the accused
appellant in the manner disclosed by the
prosecution. The recovery made after two
months of the alleged incident, therefore,
would not be a material circumstance to
implicate the appellant.

32. For the reasons and discussions
held above, this appeal succeeds and is
allowed. The judgment and order dated
15.3.2013,
passed
by
the Additional
Sessions Judge, Court No. 1, Maharajganj
in Sessions Trial No. 8 of 2009 arising out
of Case Crime No. 796 of 2008, under
Section 302 IPC, Police Station Kolhui,
District
Maharajganj;
whereby
the
appellant Manjoor Alam @ Nirahu has
been
sentenced
to
rigorous
life
imprisonment
alongwith
fine
of
Rs.
10000/- and on its failure to undergo
further incarceration of two years, is set
aside. He shall be set to liberty, forthwith,
unless he is wanted in any other case,
subject to compliance of Section 437A
Cr.P.C.
----------
(2022) 12 ILRA 837
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2022

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 3122 of 1985

Ram Sarikh & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri D.B. Yadav

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

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 357, 357(a), - Indian
Penal Code, 1860 - Section 147, 148, 149,
307 & 323 - Criminal Appeal - challenging the
judgment & Order of Conviction & Sentence by
the Trial Court - allegations are cutting Lathi
from informant's bamboos trees and when
forbid them by informant's son accused persons
abused him and assaulted upon him with Danda
& Bhala - Evaluation of evidences - trial court
rightly convicted and sentenced to the accusedappellants - Principle of Sentencing - since,
incident was took place at the spur of moment
and without any pre-plan and they are all living
with peace and harmony for more than 35 years
having no any criminal history - thus, instead of
sending them into jail, in view of law
propounded
by
Supreme
Court
regarding
providing compensation to the victim - Appeal is
partly allowed & sentence is modified -
appellants/accused are directed to pay fine &
compensation to the injured person - direction
accordingly. (Para - 19, 20, 25)

Appeal partly allowed. (E-11)
838 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Accused X Vs St. of Mah. (2019 vol. 7 SCC 1),

2. St. of M.P. Vs Udham & ors. (2019 vol 10 SCC
300),

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

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

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

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

3. The prosecution case, as revealed
in written report dated 05.04.1980 at 10 am
submitted to the Police Station Madhuban
is that that informant Triveni s/o Cheekhur
is resident of Daryabad, Police Station
Madhuban,
District
Azamgarh.
On
05.04.1980, when his son Chandra Pati was
returning to his home from his shop, he saw
that Jheenak s/o Dhaneshwar r/o Parvejpur
was cutting Lathi from his bamboos trees
(Banskoth). Informant's son forbid him
from cutting Lathi. Being enraged on this,
accused
Jheenak
started
abusing
the
informant's son. Hearing the noise, accused
Ram Sarikh and Ram Lachhan s/o
Dashrath, Dhaneshwar s/o Navrang, Shiv
Chand s/o Sanehi and 12 other accused, in
pursuance of common intention exhorting
others, assaulted informant's son Chandra
Pati with Danda and Bhala.

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

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

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

2. Lacerated wound 0.5 cm X 0.2
cm X 0.2 cm on right palm, 4 cm below the
right wrist joint.
12 All. Ram Sarikh & Ors. Vs. State of U.P.
839

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

6.

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

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

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

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

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

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

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

8. The investigation of the case was
done
by
Investigation
Officer,
S.I.
Vishnukant Singh (PW-6), who visited the
place of occurrence and prepared the site
plan. After investigation he submitted final
report. In the case, on the direction of the
C.O. concerned, the Investigating Officer
again submitted a charge sheet under
Sections 147 and 323 I.P.C. P.W. 6, S.I.
Vishnukant Singh has also investigated the
cross criminal case registered on behalf of
the
accused-appellants
and
after
investigation submitted a charge sheet
(Exhibit Kha-1) against the informant and
his son. PW-6, S.I. Vishnukant Singh has
proved the Chik FIR (Exhibit Kha-1) and
site plan (Exhibit Kha-2) of the cross case.

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

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

11. On 04.10.1984, the trial court has
recorded statement under Section 313
Cr.P.C. of accused, who have denied the
prosecution case. They have also denied the
evidence given by the witnesses against
them. They have stated that the witnesses
were giving false evidence due to enmity
and they are being falsely prosecuted due to
enmity.
Accused-applicants
have
also
stated in their additional evidence that the
informant, his son and other persons of
their side had attacked them. They have
840 INDIAN LAW REPORTS ALLAHABAD SERIES
further stated in their additional evidence
that one day before the date of occurrence
at night, the Dhekul of accused Ram Serikh
was stolen from his pond, when he inquired
regarding it from the son of informant,
Chandrapti he started quarrelling with him
and on the next day at 8.30 am informant
and his son including total six person in
which two were having countrymade
pistols in their hands, fired at him. Shiv
Chand, Dhaneshwar and Ram Lachhan
came their to protect him then informant
Triveni and his son Kavalpati and Suresh
set ablaze the crops lying in his khalihan
which were burnt to ashes. Ram Sarikh also
stated that due to the firing he received
bullet injuries. Persons of his side received
pellet injuries and FIR was also lodged by
him against the informant and persons of
his side.

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

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

14. It has been stated on behalf of the
accused that the Trial Court without
examining the oral and documentary
evidence produced by the defence, has
wrongly decided the case and convicted the
appellants-accused. It has been also stated
that from the evidence on record and
statement of accused under Section 313
Cr.P.C. it is well proved that they were
attacked by informant, his sons and persons
of his side and their crops, lying in his
Khalihan, was also burnt. The injuries were
caused to them by the informant, his son
and other persons of his side. But the Trial
Court did not accept their plea of right of
defence and wrongly convicted them.

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

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

17. Injured kavalpati PW-2 and eye
witness
PW-3
Chandrapati
has
also
corroborated the facts in the deposition
made by PW-1 Triveni. The evidence of
PW-1, PW-2 and PW-3 appears to be
cogent, reliable and convincing. In their
cross-examination by defence nothing has
come which may cause it appear to be a
false or unreliable. The oral evidence of
aforesaid PWs have been corroborated by
12 All. Ram Sarikh & Ors. Vs. State of U.P.
841
the documentary evidence namely Chik
FIR, copy of GD of institution of criminal
case against accused, injury report of PW-1
and PW-2 and charge sheet filed against
appellant-accused, Ram Sarikh and Shiv
Chand.

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

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

20. Learned counsel for the appellantaccused Shri D.B. Yadav has argued that
the incident relates to the year 1984.
Informant and accused belongs to same
village. They are living with peace and
harmony
for
more
than
35
years.
Appellants do not have any criminal
history. The incident took place at the spur
of moment without any pre-plan on behalf
of the appellants-accused. Instead of
sending them jail to undergo the sentence,
fine may be imposed on them. It is further
submitted that more than 37 years have
been passed since the incident took place.
Informant, his sons and appellants are
living with peace and harmony in the same
village since then. Presently, the age of
appellant-accused Ram Sarikh is about 77
years and that of Shiv Chand is 57 years.
Only simple injuries were caused to the
informant and his son.

21. 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 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)

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

22. 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)

23. 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.

24. 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
12 All. Smt. Jonha @ Jonhi Devi & Ors. Vs. State of U.P.
843
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."

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

26. Let the lower court record along
with a copy of this judgment and order be
sent to the Sessions Judge, Azamgarh for
getting it executed by the Trial Court.
----------
(2022) 12 ILRA 843
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2022

BEFORE
THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Appeal No. 5663 of 2013

Smt. Jonha @ Jonhi Devi & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ayank Mishra, Sri D.P. Singh, Sri Kumar
Ashutosh Srivastava, Sri Vishnu Gupta

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 313 - Indian
Evidence Act, 1872 - Section - 113-B -
Indian Penal Code, 1860 - Sections 201,
304-B, & 498-A - Dowry Prohibition Act,
1961 - Sections 3 & 4 - Criminal Appeal -
challenging the judgment & Order of
Conviction & Sentence by the Trial Court -
offence of giving them benefit of doubt -
on the ground that - all the evidence are
not proved the story of prosecution &
holding that all witnesses are interested
witnesses - court held that - in the light
of settle law by the Apex Court - Trial
Court can only concerned with quality not
with the quantity of evidence - the
testimony of interested witness has to be
examined with extra care and caution -
finding of trial court cannot at all be
termed as perverse - appellant fails to
make out any ground - hence Appeal
dismissed. (Para - 17, 19, 21, 23, 24)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Kans Raj Vs St. of Punj. & ors. (2000 (5) SC
207),

2. Gumansinh @ Lalo @ Raju Bhikhabhai Vs The
St. of Gujr. (AIR 2021 SC 4174).

(Delivered by Hon'ble Syed Waiz Mian, J.)