Court No. - 25 A.F.R.

Case :- CRIMINAL APPEAL No. - 1031 of 2000

Appellant :- Ram Lakhan & Another.
Respondent :- State Of U.P.
Counsel for Appellant :- B.K.Singh
Counsel for Respondent :- Govt.Advocate

Hon'ble Dr. Vijay Laxmi,J.

Heard Sri B.K. Singh, learned counsel for the

appellants and Sri Afaq Zaki Khan, learned A.G.A.
for the State and gone through the record.

2. The challenge in this appeal is to the

judgment and order dated 15.11.2000 passed by
Special Judge (S.C. & S.T.) Act Barabanki in
Sessions Trial No.72 of 1996 arising out of Case
Crime No.1066 of 1993 under Section 323 r/w
Section 34, 452, 504 I.P.C. and under Section 3 (i)
(xi) S.C. & S.T. Act Police Station Kotwali, District
Barabanki convicting the appellants namely, Ram
Lakhan and his mother Smt. Shakuntala under
Section 323 r/w 34 I.P.C. with 1 year R.I., under
Section 452 I.P.C. 3 years R.I. and fine of
Rs.500/- and under Section 504 I.P.C. 1 year R.I.
and under Section 3 (i)(xi) S.C. & S.T. Act 4 years
R.I. and fine of Rs.1,000/-.

3. The background facts in a nutshell are as

follows:-

The Complainant and his wife and the

accused are residing in the same building
with the common courtyard as tenants in
village Daniyalpur. The report was lodged by
Ram Charit complainant stating that he was
residing in village Daniyalpur, P.S. Kotwali,
 District Barabanki from last 8 years as a
tenant. He has become the permanent
resident of this village. The accused Ram
Lakhan Naai and his mother started residing
in his neighbourhood as a tenant from last 1
year. They are harassing the complainant
and his family and abusing them in the
name of Chamar since they belonged to
scheduled caste. The courtyard of the house
was common. On the date of the incident
the quarrel started when Smt. Sona Devi,
wife of the complainant was washing her
strainer under the tap of the courtyard.
Some water of the strainer fell on the feet of
the accused Shakuntala who got furiated
and chased the victim alongwith her son
Ram Lakhan to her room. She was having
glass bottle in her hand and his son was
having an iron bucket. They entered her
room and assaulted her with glass bottle
and bucket respectively. The victim suffered
injuries on her head and the blood started
oozing out of her head. The another tenant
Shambhu reached on the spot on hearing
the outcry of the victim who settled the
dispute. The injury report shows the factum
of the injuries caused to the victim in her
head by blunt object which were the simple
in nature. Number of villagers gathered on
the spot. The report was lodged by the
complainant in the police station at 3.05
p.m. on 29.09.1993 which is Exhibit Ka-1.
The investigation was done by S.I. Kailash
Singh Yadav who inspected the spot,
received the injury report, recorded the
statements of the witnesses and after
completing the investigation the charge
sheet Exhibit Ka-6 was submitted.

4. The prosecution examined Ram Charit PW1

and his wife Sona Devi PW2 victim as fact
witnesses. No witness was examined in defence
by the accused. The appellants stated in their
statement under Section 313 I.P.C. they were
innocent. They were falsely implicated in this case
due to enmity.
5. On completion of the trial and after hearing
arguments advanced on behalf of the parties, the
Trial Court vide judgment and order dated
15.11.2000 convicted the appellants Ram Lakhan
and his mother Shakuntala under Section 323 r/w
34, 452 and 504 I.P.C. and 3 (i)(xi) of the S.C.
and S.T. Act.

6. The appellants are appealing against the

conviction and sentence alleging that the facts and
the law were not appreciated in correct
perspective by the Trial Court. It is argued by
learned counsel for the appellants that no case
was made out against accused under Section 452
and 504 I.P.C. and Section 3 (i) (xi) of the S.C. &
S.T. Act since the ingredients of these charges
were not satisfied. As regards of the offence under
Section 323 r/w 34 I.P.C. learned counsel did not
contest the said charge on merits. It is submitted
that the matter was very old and the accused
were willing to pay compensation to the victim. It
is requested that linieant view may be taken in
favour of accused. Learned A.G.A. supported the
judgment.

7. Firstly I take the question as to conviction of

the appellants under Section 504 I.P.C. It will be
appropriate here to examine whether the
ingredients of Section 504 Indian Penal Code have
been made out. Section 504 is extracted for easy
reference:

504. Intentional insult with intent to provoke

breach of the peace.-Whoever
intentionally insults, and thereby gives
provocation to any person, intending or
knowing it to be likely that such provocation
 will cause him to break the public peace, or to
commit any other offence, shall be punished
with imprisonment of either description for a
term which may extend to two years, or with
fine, or with both.

8. Section 504 Indian Penal Code comprises of

the following ingredients, viz.,
(a) intentional insult, (b) the insult must be such
as to give provocation to the person insulted, and
(c) the accused must intend or know that such
provocation would cause another to break the
public peace or to commit any other offence.
The intentional insult must be of such a degree
that should provoke a person to break the public
peace or to commit any other offence. The person
who intentionally insults intending or knowing it
to be likely that it will give provocation to any
other person and such provocation will cause to
break the public peace or to commit any other
offence, in such a situation, the ingredients
of Section 504 are satisfied. One of the essential
elements constituting the offence is that there
should have been an act or conduct amounting
to intentional insult and the mere fact that the
accused abused the complainant, as such, is not
sufficient by itself to warrant a
conviction under Section 504 Indian Penal Code.
The Supreme Court in Fiona Shrikhande vs.
State of Maharashtra and
Anr.MANU/SC/0853/2013 stated that :
14. We may also indicate that it is not the
law that the actual words or language
should figure in the complaint. One has to
read the complaint as a whole and, by
doing so, if the Magistrate comes to a
conclusion, prima facie, that there has been
an intentional insult so as to provoke any
 person to break the public peace or to
commit any other offence, that is sufficient
to bring the complaint within the ambit
of Section 504 Indian Penal Code. It is not
the law that a complainant should verbatim
reproduce each word or words capable of
provoking the other person to commit any
other offence. The background facts,
circumstances, the occasion, the manner in
which they are used, the person or persons
to whom they are addressed, the time, the
conduct of the person who has indulged in
such actions are all relevant factors to be
borne in mind while examining a complaint
lodged for initiating
proceedings under Section 504 Indian Penal
Code.

9. In the instant case, the prosecution has not

been able to prove that there was
intentional insult and it was of such a degree that
should provoke a person to break the public
peace or to commit any other offence. It is worth
mentioning that even the specific offending words
were not mentioned in the FIR. No independent
witness was produced who saw the offending
words being used by the appellants against the
wife of the informant. The prosecution has thus
not been able to prove the charge under Section
504 IPC.

10. Now coming to the next question as to

conviction of the appellants under Section 452, it
is also not proved in view of the fact that the
informant as well as the accused were residing as
tenants in the same building with a common
courtyard. For an offence under Section 452 the
offence of house trespass is committed when it is
done having made preparation for causing hurt to
any person or assaulting any person. In the
instant case, the scuffle ensued between the
accused Shakuntala and the victim in the
courtyard of the house suddenly. It is not the
prosecution case that any preparation was made
by the accused for committing house trespass for
assaulting the victim. The charge under Section
452 is thus not proved for want of evidence. The
ingredients of Section 504 and 452 are not found
satisfied.

11. Now coming to the offence under Section 3

(i) (xi) S.C. & S.T. Act, it is established from
evidence of Sona Devi PW2 and the medical
evidence available on record that she suffered
head injuries at the hands of accused Ram Lakhan
and his mother. Smt. Sona Devi stated on oath
that when she was washing her strainer on the tap
some water of the strainer fell down on the
chappal of Shakuntala on which she started
abusing her. When Sona Devi started weeping,
Shakuntala challenged to beat victim saying
"Maaro saali chamarin ko yeh nakhra dikha rahi
hai." Ram Lakhan and Shakuntala chased victim
and assaulted her in her room with bucket and
glass bottle respectively. They caused serious
injuries on her head. The blood started oozing out
from her head. Though in the FIR it was noted
that the bucket was in the hand of Ram Lakhan
and glass bottle in the hand of his mother. The
contrary statement was given by Sona Devi in her
cross-examination where she stated that the
mother of Ram Lakhan chased her with a bucket
in her hand and Ram Lakhan was having a bottle
which showed that Ram Charit was not on the
spot who was the scribe of the FIR and lodged the
case on the police station concerned. But the
charge under Section 323 read with 34 IPC is
proved.

12. If that is the position, I have no doubt that

the appellants cannot be held guilty of an offence
under Section 3(1) (xi) S.C. and S.T. Act. Section
3(1)(xi) is aggravated form of offence under
Section 354 IPC. It appears from evidence on
record that what the accused did it was as a result
of sudden scuffle which ensued when the water
from the strainer of Sona Devi fell on the chappal
of Shakuntala and the assault was not with a view
to outrage of the modesty of PW2. The proved
facts are not sufficient to lead to an inference that
the appellants were actuated by the intention to
outrage her modesty.

13. This question was not considered by the

Court below from this point of view. It appears to
have been assumed that either there was an
offence under Section 3(1)(xi) S.C. and S.T. Act or
nor at all. The point was not considered whether
even after the assault was proved it was such as
would fall under Section 3 (1)(xi) S.C. and S.T.
Act.

14. It is submitted by Mr. Singh on quantum of

sentence that the occurrence is the year 1993 i.e.
it took place about 24 years ago. The appeal
against acquittal was filed in the year 2000.
Presently, the convict Shakuntala is about 56
years of age and her son Ram Lakhan is about 42
years of age and it is regarded that a lenient view
be taken in their favour. I am conscious that crime
is affront to the human dignity, however,
considering the willingness of appellants to pay
compensation, their being tenant in same building
and the long lapse of period are indeed
considerations which may weigh in favour of the
parties for not being awarded a long sentence of
imprisonment. But then the interest of the victim
of the crime have also to be kept in view. Keeping
in view the consideration of the human factor
involved and the interests of the victims to whom
mere imprisonment of appellants at this belated
stage would not offer much solace. It is necessary
to strike a balance between these disparate
considerations and keeping in view the fact that
the appellants is willing to pay compensation to
the victims, it would be appropriate to reduce
their sentence of imprisonment to already
undergone and to invoke the provision of Section
357 Cr.P.C. Section 357 Cr.P.C. provides basic
frame work for compensation to the victims.

15. The Hon'ble Supreme Court has urged all the

Courts time and again to exercise this power
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. 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.
16. 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. To
quote:
While 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. 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.

17. 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.

18. In the instant case, the victim is the sufferer

who should not be forgotten by merely
maintaining the sentence of imprisonment on the
accused. Considering the nature of the crime, the
nature of injuries which are simple in the case,
the fact that the accused and the victims were
residing in the same building as tenant, the fact
that one of the accused is a lady of 56 years and
admittedly the accused are in a position to pay, it
is a fit case to invoke Section 357 (1) Cr.P.C. and
it would be appropriate to impose fine to the tune
of Rs.4,000/- on each accused under Section 323
r/w 34 I.P.C. which shall be paid as compensation
to victim. It would be appropriate in the interest
of justice that the sentence of imprisonment for
the offences under Section 323 r/w 34 I.P.C., be
reduced to the period already undergone.

19. Having over all consideration of facts and

situations and also the time lag in between, I am
of the view that the sentence of imprisonment of
the appellants for the offence under Section 323
r/w 34 I.P.C. be reduced to a period already
undergone to meet the ends of justice. In addition
accused will pay Rs.4,000/- each under Section
323 read with 34 I.P.C. to the victim. The
appellants are directed to deposit a sum of
Rs.4,000/- (Rupees Four Thousand Only) each in
the Court of Special Judge (S.C. & S.T.) Act,
Barabanki within 30 days from today. On receipt
of the deposit the Special Judge (S.C. & S.T.) Act,
Barabanki shall release Rs.8,000/- (Rupees Eight
Thousand Only) to Smt. Sona Devi. In case of non
deposit by the appellants convict, they shall be
required to undergo 6 months imprisonment. The
appellants are acquitted of the charges under
Section 452, 504 I.P.C. and Section 3 (i) (xi) S.C.
& S.T. Act.

20. Above being the position, the impugned

judgment is modified to that extent. The appeal is
disposed of accordingly.

21. The Registrar is directed to communicate this

order to the Special Judge (S.C. & S.T.) Act,
Barabanki for compliance.

Order Date :- 4.4.2017

Sarika