Mangal Singh & Anr vs Kishan Singh & Ors

Mangal Singh & Anr. ... Appellants

Versus

Kishan Singh & Ors. ... Respondents

JUDGMENT

AFTAB ALAM,J.

1. Heard counsel for the parties

2. Leave granted

3. Appellant no.1 is the informant of the case and appellant no.2 is his

father, the injured victim of the offence. They filed this appeal against the

judgment and order dated 18 August 2005 passed by the Gwalior bench of

the Madhya Pradesh High Court in criminal appeal no.283 of 1998. Before

the High Court there were three appellants (respondents before this Court)

who were convicted by the trial court under section 307 of Penal Code and 2

sentenced to rigorous imprisonment for five years and fine of rupees

1000=00 each; in case of default in payment of fine they were directed to

undergo simple imprisonment for three months. The High Court, by the

judgment coming under appeal, acquitted Dault Singh (Appellant no.2

before the High Court) and altered the conviction of Kishan Singh and

Devilal(appellants 1 and 3 before the High Court and respondent 1&3

before this Court) from section 307 to section 326 of the Penal Code and

reduced their custodial sentence to the respective periods that they had

already undergone. In lieu of imprisonment, the High Court punished them

with fine of rupees 3500=00 each with the direction that in default of

payment of fine they would undergo simple imprisonment for six months.

The High Court further directed that on realisation of the amounts of fine,

Rs.5000=00 should be paid to the injured victim Omkar Lal. At the time of

the High Court judgment Kishan Singh (respondent no.1) had served about

four months in jail and Devi Lal (respondent no. 3) about three months. 3

4. On hearing counsel for the parties we are satisfied that in so far as the

acquittal of Daulat singh (respondent no.2) is concerned the judgment of the

High Court calls for no interference. The limited question for consideration

is whether the High Court was justified in altering the conviction of the

other two respondents from section 307 to section 326 of the Penal code and

reducing their sentence to fines only.

5. We propose to state here only such facts that are germane to the

limited issue.

6. According to the prosecution case, as made out in the first

information report lodged by appellant no.1, on 14 July 1996 at about

quarter past ten in the morning while the informant and his father were

going through the jungle they were ambushed by the accused persons,

including the three respondents in this appeal. Among the accused the three

respondents were armed with Pharsas and the other four were carrying

lathis. All the seven accused assaulted the informant's father Omkar Lal

with Pharsas and lathis on his legs and hands. While beating him the

accused also declared their intent not to leave him alive.

7. All the seven accused were put on trial on charges under Sections

307, 341, 147, 148 read with Section 149 of the Penal Code. The Trial court

by judgment and order dated 27 September 1998 passed in Sessions Trial 4

no. 327/1996 acquitted the four accused who were alleged to be armed with

lathis but convicted the three respondents under section 307 of the Penal

Code and passed sentence on them as stated above. In appeal the High

Court modified the conviction and sentence as noted above.

8. Learned counsel for the appellants submitted that having regard to the

medical evidence and the nature of injuries the Trial Court had rightly

convicted the respondents under section 307 and the High Court erred in

altering the conviction under section 326 of the Code. Learned counsel

placed strong reliance on the evidence of PW 3, Dr. S. O. Bhola who had

found five incised injuries on the hands and legs of Omkar lal and PW 7 Dr.

Sitaram Singh Raghuvanshi who on the basis of X-ray examination of the

different injuries of Omkar lal deposed before the Trial Court that there

were fractures of left radius, right ulna, right fibula and left fibula bones.

Counsel further submitted that Dr. Bhola PW 3 stated before the Trial Court

that in case no medical care was provided the injured person could have

died. Counsel submitted that the injuries sustained by appellant no. 2 and

the evidences of the two doctors clearly indicated that the accused intended

to kill him and he could survive only due to timely medical help.

9. The injuries found on the person of appellant no. 2 are enumerated in

the judgment of the trial court; those were as follows: 5

"[1] one incised wound 3 x 1 x bone deep on the right forearm and swelling on the back side and depth was upwards;

[2] Contusion 4 x 1 cm. on the right forearm on the upper portion and possibility of fracture on the back side;

[3] Incised wound 10 x 2 x bone deep below the right leg and depth downwards and possibility of fracture;

[4] Incised wound 3 x 1 x bone deep below the right leg and 1/3rd portion (sic) deep inside;

[5] Contusion 3 x 1 cm. on the right leg on front portion;

[6] Incised wound 5 x 5 x bone deep below the right side left and on 1/3rd portion in front;

[7] Incised wound 4 x 5 x bone deep below the left leg on front side;

[8] Lacerated wound 5 x 5 x bone deep above ankle joints on 1/3rd portion and chances of fracture;

[9] Incised would 3 x 1 x bone deep below the left leg on 1/3rd portion on outer side and depth inside and upwards;

[10] Incised wound 4 x 1 x bone deep behind the left forearm and depth inside and upwards; and

[11] Contusion 5 x 1 x bone deep behind the left forearm and the general condition of the patient was bad."

10. The injury report shows that all the injuries inflicted on appellant no.

2 were either on his legs or arms. Indeed a number of injuries were quite

grievous but it seems the accused were careful not to give any blow on any 6

vital part of the body. Had the intention been to kill him one or two blows

on the head or neck would have served the purpose. It seems while

assaulting him ruthlessly the accused aimed all the blows on his legs and

arms apparently to make sure that that would not lead to his death. The

Doctor stated before the court that the injured might have died if medical

care was not given to him but he didn't say the injuries were sufficient in

the course of nature to cause death.

11. Having regard to the evidence on records we are satisfied that the

alteration of the respondents' conviction by the High Court from Sec. 307 to

326 cannot be said to be wrong and unjustified.

12. But the same view cannot be taken on the question of sentence. In

view of the nature of injuries suffered by appellant no.2 only a fine of

rupees 3500=00 appears wholly inadequate. In certain circumstances the

court may not feel inclined to send the convict to jail and the offence being

an old one may be a relevant consideration. But in such cases the custodial

sentence should be substituted by heavy fine; something that should pinch

the offender and make him feel and recall the offence committed by him. At

the same time that should appear to the victim of the offence as at least

some punishment to the offender. Further, in a given case there may be

considerations that may outweigh the argument in favour of not sending the 7

offender to jail simply because the offence was committed long ago. In this

case we feel the High Court has erred in balancing the relevant factors. The

High Court seems to have waived off the custodial sentence and let off the

respondents with a modest fine mainly on two considerations. One, that the

offence was committed in the year 1996 and it would serve no useful

purpose to send the respondents to jail after ten years of the occurrence.

And two, the respondents being convicted of the offence of causing

grievous hurt in place attempted murder. We are unable to agree with the

High Court on both the counts. Any inordinate delay in conclusion of a

criminal trial undoubtedly has highly deleterious effect on the society

generally and particularly on the two sides to the case. But it will be a grave

mistake to assume that delay in trial does not cause acute suffering and

anguish to the victim of the offence. In many cases the victim may suffer

even more than the accused. There is, therefore no reason to give all the

benefits on account of the delay in trial to the accused and to completely

deny all justice to the victim of the offence. In this case there is nothing to

indicate that the appellants or the prosecution were responsible for the delay

in trial. We are, therefore of the view that the High Court was not right in

substituting the custodial sentence of the respondents to only fines of rupees

3500=00.

8

13. Coming to the second reason weighing with the High Court, it is a

mistake to think that as a rule all offences falling under section 326 would

be less serious than the offences falling under section 307 of the Penal Code

and would consequently attract lighter sentence. An offence under section

326 may be actually more serious than another falling under section 307 of

the Code. For instance, acid thrown on the face of a young, unmarried girl

would come under section 326 but it would be far more serious than a

firearm shot missing the victim that would fall under section 307 of the

Code.

14. From the injuries suffered by appellant no.2 it is evident that though

the respondents did not intend to kill him altogether they surely wanted to

leave him crippled for a lifetime. In our opinion therefore the High Court

was not right in letting them off on completing sentence of imprisonment of

merely four months and three months respectively. We accordingly restore

the sentence of rigorous imprisonment given to the respondents 1&3 and

direct that they must serve rigorous imprisonment for two years in addition

to the fine of Rs.3,500 imposed by High Court; in case of default in

payment of fine the respondents would suffer simple imprisonment for six

months. On realisation of the amounts of fine Rs.6000=00 would be paid to

appellant no.2 9

15. In the result the appeal is partly allowed as indicated above.

.........................................J. [Tarun Chatterjee]

.......................

........J. [Aftab Alam]

New Delhi, November 21, 2008.