under Section 325 IPC. jail sentence can not be substituted by fine= The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs.10,000/-.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.2437 OF 2010
The State of Uttar Pradesh Appellant(s)
VERSUS
Tribhuwan & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the State against the
judgment and order dated 10.02.2006 of the High
Court of Judicature at Allahabad in Criminal Appeal
No.211 of 1982 whereby the High Court partly allowed
the appeal filed by the accused persons and while
upholding the conviction of the five accused interfered
in the sentence and its quantum awarded to the
accused persons by order dated 22.01.1982 passed by
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the IVth Additional Sessions Judge, Azamgarh in
Sessions Trial No.132 of 1981.
2. Having regard to the short controversy, which
now remains for decision in this appeal as a result of
subsequent events occurring in the case after the
incident in question which took place way back in the
year 1980, it is not necessary to set out the facts in
detail except those which are relevant for the disposal
of the appeal.
3. Six accused persons, (1) Tribhuwan (2) Sita Ram
(3) Ram Suresh (4) Rajendra (5) Ram Vijay and (6)
Jogendra were the residents of a village - Seerpatti
District Azamgarh (UP). One Ram Lagan (deceased)
was also the resident of same village. The houses of
accused persons and Ram Lagan were situated in the
same cluster and were in the close vicinity of each
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other. All the accused persons, Ram Lagan and his
family members were known to each other.
4. On 14.06.1980 around 8.00p.m., Tribhuwan was
passing in front of Ram Lagan's house when pet dog of
Ram Lagan sitting in front of his house started barking
on Tribhuwan, due to which Tribhuwan got infuriated
and started hurling filthy abuses to Shobh Nath-son of
Ram Lagan, his family members and Ram Lagan, who
were sitting on the door steps of their house.
5. This incident, unfortunately, aggravated and led
to filthy verbal exchanges between Ram Lagan, Shobh
Nath and Tribhuwan. Tribhuwan then went to his
house after threatening Ram Lagan and his son that
he would come back soon to teach them a lesson.
After sometime, Tribhuwan came back along with five
persons, namely, Sita Ram, Ram Suresh, Ram Vijay,
Rajendra and Jogendra with weapons (Pistol, Farsa,
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Lathi, Spear) in their hands. This incident attracted
many persons living in the area and who were passing
on the road. The altercation and the attack by the
accused persons resulted in causing injuries to Ram
Lagan and one Baij Nath (PW-2). Both injured persons
were taken to nearby hospital for treatment. After
sometime, Ram Lagan succumbed to his injuries in
the hospital whereas Baij Nath survived.
6. After making necessary investigation, six accused
persons, named above, were apprehended and put to
trial for commission of the offences punishable under
Sections 147, 148, 302, 324/149 and 325/149 of the
Indian Penal Code, 1860 (hereinafter referred to as
“IPC”) in Session Trial No.132 of 1981 before the IVth
Additional Sessions Judge, Azamgarh.
7. The Sessions Judge, by his order 22.01.1982,
acquitted one accused-Jogendra from all the charges
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whereas convicted remaining five accused and
sentenced each of them as under:
Name of the
accused
conviction sentence
Jogendra acquitted
Ram Vijay U/S 302 IPC
Section
325/149 IPC
Section 148 IPC
Life imprisonment
RI for four years
RI for two years
Tribhuwan Section
324/149 IPC
Section
325/149 IPC
Section 148 IPC
RI for two years
RI for four years
RI for two years
Sita Ram Section
324/149 IPC
Section
325/149 IPC
Section 147 IPC
RI for two years
RI for four years
RI for one year
Ram Suresh Section 147
IPC
Section
324/149 IPC
Section
RI for one year
RI for two years
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325/149 IPC RI for four years
Rajendra Section 147 IPC
Section
324/149 IPC
Section
325/149 IPC
RI for one year
RI for two years
RI for four years
8. The five accused, namely, Tribhuwan, Sita Ram,
Ram Suresh, Rajendra and Ram Vijay, who suffered
conviction and sentence, filed Criminal Appeal
No.211/1982 before the High Court. So far as the
State is concerned, they did not file any cross appeal
against that part of the order of the Sessions Court by
which one accused person-Jogendra was acquitted of
the charges and other accused persons though
convicted for other offences but stood acquitted of the
charge of murder. As a consequence, the order of the
Sessions Judge so far as the State was concerned,
became final.
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9. The High Court, by impugned judgment, partly
allowed the appeal and while upholding the conviction
of the five accused interfered in the sentence and its
quantum awarded to each accused persons. The High
Court modified the sentence of the five accused as
under: -
Name of
the
accused
conviction sentence
Ram Vijay Section 304 Part I
IPC
Section 148 IPC
Section 325/149 IPC
RI for 10 years
Fine of Rs,3000/- In
default of payment of
fine, to undergo RI for
three months
Fine of Rs.10,000/- In
default of payment of
fine, to undergo RI for
one year
Tribhuwan Section 148 IPC
Section 325/149 IPC
Fine of Rs,3000/- In
default of payment of
fine, to undergo RI for
three months
Fine of Rs.10,000/- In
default of payment of
fine, to undergo RI for
one year
Sita Ram Section 147 IPC Fine of Rs.1000/- In
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Section 325/149
IPC
default of payment of
fine, to undergo RI for
one month
Fine of Rs.10,000/- In
default of payment of
fine, to undergo RI for
one year
Ram
Suresh
Section 147 IPC
Section 325/149
IPC
Fine of Rs.1000/- In
default of payment of
fine, to undergo RI for
one month
Fine of Rs.10,000/- In
default of payment of fine, to
undergo RI for one year
Rajendra Section 147
IPC
Section 325/149
IPC
Fine of Rs.1000/- In
default of payment of fine,
to undergo RI for one
month
Fine of Rs.10,000/-
In default of
payment of fine, to
undergo RI for one
year
10. The State, however, felt aggrieved of the judgment
of the High Court, filed this appeal by way of special
leave before this Court.
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11. During pendency of this appeal, two respondents,
namely, Sita Ram (respondent No.2) and Rajendra
(respondent No.4) died. As a consequence thereof, the
appeal against Sita Ram and Rajendra stood abated.
Ram Suresh (respondent No.3) also died and the
appeal stood dismissed as abated against him also by
this Court’s order dated 26.07.2010.
12. So far as the appeal against Ram Vijay
(respondent No.5) is concerned, the same was also
dismissed by this Court’s order dated 26.07.2010 for
non-compliance of the orders by the appellant (State)
qua Ram Vijay. As a consequence thereof, the appeal
against Ram Vijay also does not survive for its
consideration on merits.
13. This appeal is now survived only against
Tribhuwan (respondent No.1) for its consideration on
merits.
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14. The short question, which arises for
consideration in this appeal, is whether any case is
made out by the State against accused personTribhuwan
(respondent No.1) seeking any kind of
interference in his order of conviction and acquittal or
in award of sentence and, if so, to what extent?
15. Heard Mr. Ratnakar Dash, learned senior counsel
for the appellant-State and Mr. Sidharth Dave, learned
counsel for the respondent.
16. Learned counsel for the appellant (State) has
argued only one legal point in support of the appeal.
According to learned counsel, the Sessions Judge
rightly convicted respondent No.1 (Tribhuwan) for an
offence punishable under Section 325 read with
Section 149 IPC and, accordingly, awarded rigorous
imprisonment of four years to him but the High Court
though was right in upholding the conviction fell in
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error in setting aside the jail sentence of four years
awarded to him by the Sessions Court and
substituting the same by imposing only a fine of
Rs.10,000/-.
17. Learned counsel urged that imposition of jail
sentence and fine both is mandatory once the accused
is held guilty for the offence punishable under Section
325 IPC which may extend upto 7 years. Learned
counsel urged that the High Court, in its discretion,
could reduce the award of jail sentence to any period
less than four years but, in no case, it could set aside
the entire jail sentence and substitute it by awarding a
sentence of fine of Rs.10,000/-. It is not permissible
in law and hence to this extent, the judgment of the
High Court deserves to be set aside and the order of
the Sessions Judge be restored.
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18. In reply, the submission of learned counsel for
respondent No.1 (accused-Tribhuwan) was that
admittedly respondent No.1 has undergone 40 days’
jail sentence partly as under-trial prisoner and
remaining after suffering the conviction from the
Sessions Court. It was, therefore, his submission that
such imprisonment can be taken as imposing jail
sentence of 40 days to respondent No.1 under Section
325 IPC. In other words, his submission was that
though the High Court instead of awarding any jail
sentence awarded only the fine of Rs.10,000/- but
since respondent No.1 has, in the meantime, already
undergone 40 days’ jail sentence partly after his arrest
pending investigation, inquiry and then partly during
pendency of trial and appeal, he should be held to
have been awarded jail sentence for 40 days for an
offence punishable under Section 325 IPC. Learned
counsel urged that respondent No.1 would thus be
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entitled to take benefit of set off of the period as
already undergone by him under Section 428 of the
Code of Criminal Procedure, 1973 (hereinafter referred
to as “the Code”) once he is awarded jail sentence to
that extent on his conviction.
19. Learned counsel further pointed out that this
Court should also take into consideration the two
circumstances appearing in the case, namely, the
incident in question occurred in 1980 and in the
meantime, 37 years has passed in prosecuting this
litigation, and second, both the Courts below, on
appreciation of evidence, have come to a conclusion
that no injury was caused by respondent No.1 to the
deceased and to injured Baij Nath (PW-2). It was,
therefore, his submission that the interest of justice
would, accordingly, be met, if respondent No.1's
conviction under Section 325 IPC is maintained by
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awarding him jail sentence of what he has already
undergone, i.e., 40 days with fine amount of
Rs.10,000/- which has already been awarded by the
High Court. Such order of conviction would be in
conformity with the requirement of Section 325 of the
IPC.
20. Having heard learned counsel for the parties and
on perusal of the record of the case, we find force in
the submission of the learned counsel for the
appellant and also of respondent No.1 (Tribhuwan).
21. Section 325 of IPC and Section 428 of the Code
are relevant for deciding the appeal. These Sections
read as under:
Section 325 of IPC
“325. Punishment for voluntarily causing
grievous hurt.-Whoever, except in the case
provided for by section 335, voluntarily
causes grievous hurt, shall be punished with
imprisonment of either description for a term
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which may extend to seven years, and shall
also be liable to fine.”
Section 428 of Cr.PC
“428. Period of detention undergone by the
accused to be set off against the sentence of
imprisonment.-Where an accused person has,
on conviction, been sentenced to
imprisonment for a term, not being
imprisonment in default of payment of fine,
the period of detention, if any, undergone by
him during the investigation, inquiry or trial
of the same case and before the date of such
conviction, shall be set off against the term
of imprisonment imposed on him on such
conviction, and the liability of such person to
undergo imprisonment on such conviction
shall be restricted to the remainder, if any, of
the term of imprisonment imposed on him:
Provided that in cases referred to in
section 433A, such period of detention shall
be set off against the period of fourteen years
referred to in that section.”
22. So far as Section 325 IPC is concerned, its
reading would show that once the accused is held
guilty of commission of offence punishable under
Section 325 IPC, then imposition of jail sentence and
fine on the accused is mandatory. In other words, the
award of punishment would include both, i.e., jail
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sentence and fine. So far as jail sentence is
concerned, it may extend upto 7 years as per Court’s
discretion whereas so far as fine amount is concerned,
its quantum would also depend upon the Court’s
discretion.
23. So far as Section 428 of Code is concerned, it
provides that the period of detention spent in jail as
under-trial or as convict will be set off against his total
jail sentence once awarded to him in connection with
the same offence.
24. This Court (Three Judge Bench) had the occasion
to interpret Section 428 of the Code in the case of
State of Maharashtra & Anr. vs. Najakat Alia
Mubarak Ali, (2001) 6 SCC 311 wherein this Court
speaking through Justice K.T. Thomas representing
majority view held as under:
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“15…………We may now decipher the
two requisites postulated in Section 428 of
the Code:
(1) During the stage of investigation, enquiry
or trial of a particular case the prisoner
should have been in jail at least for a certain
period.
(2) He should have been sentenced to a term
of imprisonment in that case.
16. If the above two conditions are
satisfied then the operative part of the
provision comes into play i.e. if the sentence
of imprisonment awarded is longer than the
period of detention undergone by him during
the stages of investigation, enquiry or trial,
the convicted person need undergo only the
balance period of imprisonment after
deducting the earlier period from the total
period of imprisonment awarded. The words
“if any” in the section amplify that if there is
no balance period left after such deduction
the convict will be entitled to be set free
from jail, unless he is required in any other
case. In other words, if the convict was in
prison, for whatever reason, during the stages
of investigation, enquiry or trial of a
particular case and was later convicted and
sentenced to any term of imprisonment in
that case the earlier period of detention
undergone by him should be counted as part
of the sentence imposed on him.”
25. In our considered opinion, the High Court was,
therefore, not right in setting aside the entire jail
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sentence of respondent No.1 while upholding his
conviction under Section 325 IPC. The High Court, in
our view, ought to have either upheld the award of jail
sentence of four years awarded by the Sessions Court
or reduce the jail sentence to any reasonable term but
it had no jurisdiction to fully set aside the jail sentence
and substitute it by imposing only fine of Rs.10,000/-.
26. As rightly argued by the learned counsel for
respondent No.1, the period already undergone by
respondent No.1 (40 days) while respondent No.1 was
in detention, as under-trial and as convict, was also a
jail sentence and could be treated as jail sentence once
awarded to respondent No.1 under Section 325IPC,
and accordingly its benefit by way of set off could be
given to him under Section 428 of Code.
27. In our considered opinion, having regard to the
time consumed in the litigation (37 years) coupled with
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the findings of two Courts below wherein it was held
that respondent No.1 did not cause any injury to the
deceased and injured Baij Nath (PW-2), we are inclined
to uphold respondent No.1’s conviction under Section
325 IPC and award to respondent No.1’s punishment
of imprisonment of 40 days with fine of Rs.10,000/-
and in default of payment of fine, to undergo one
month rigorous imprisonment.
28. Since respondent No.1 has already undergone the
jail sentence of 40 days partly as under-trial and
partly as convict, he is not required to undergo any
further jail sentence in the case at hand.
29. Respondent No.1, however, claims to have
deposited a fine amount of Rs.10,000/- imposed by
the High Court. If that be so then he need not
undergo any more jail sentence. However, this fact
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must be verified by the Sessions Court on receipt of
this judgment.
30. The appeal thus is allowed in part. The
impugned judgment is modified to the extent indicated
above.
………..................................J.
[R.K. AGRAWAL]
.……...................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 06, 2017
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