Supreme Court of India
THE STATE OF UTTAR PRADESHversusTRIBHUWAN & ORS.
- Citation
- 2017 INSC 1078
- Decided
- 6 November 2017
- Disposal
- Case Partly allowed
- Bench
- R K AGRAWAL
Holding
Section 325 IPC obliges the court to impose both imprisonment (up to seven years) and a fine, and the High Court erred in removing the imprisonment; the 40 days already served constitute a jail sentence that can be set off under Section 428 CrPC.
Summary
In 1980 a violent altercation in Azamgarh resulted in the death of Ram Lagan and injuries to Baij Nath. Six persons, including Tribhuwan, were tried; Tribhuwan was convicted under Section 325 IPC read with Section 149 and sentenced to four years rigorous imprisonment by the Sessions Court. The Allahabad High Court upheld the conviction but set aside the imprisonment, imposing only a fine of Rs.10,000. The State appealed, arguing that Section 325 mandates both imprisonment and fine and that the High Court lacked jurisdiction to remove the jail term. The Supreme Court held that the statutory language of Section 325 indeed requires both components of punishment and that the High Court erred in eliminating the imprisonment. It further ruled that the 40 days already spent by Tribhuwan in custody qualifies as imprisonment and can be set off under Section 428 of the CrPC. Consequently, the conviction was upheld with a sentence of 40 days imprisonment (already served), a fine of Rs.10,000 and one month rigorous imprisonment in default, and the appeal was partly allowed.
Issues considered
- Whether Section 325 IPC mandates the imposition of both imprisonment and fine upon conviction.
- Whether the High Court had jurisdiction to set aside the entire jail sentence and replace it with only a fine.
- Whether the period of detention already undergone by the accused can be set off against the sentence under Section 428 of the CrPC.
- Appropriate quantum of punishment for the offence given the elapsed time and evidentiary findings.
Legislation cited
- Code of Criminal Procedure, 1973s. 428, s. 433A
- Indian Penal Code, 1860s. 149, s. 325
Subjects
Section 325 IPCmandatory fine and imprisonmentSection 428 CrPCset‑off of time servedrigorous imprisonmentcriminal sentencingappealgrievous hurt
Judgment
[2017] l 1 S.C.R. I
THE STATE OF UTTAR PRADESH A
v.
TRIBHUWAN & ORS.
(Criminal Appeal No. 2437 of2010)
B
NOVEMBER 06, 2017
(R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.(
Sentence/Sentencing - Conviction under s.325 !PC - lf
accused is held guilty of commission of offence under s.325. C
imposition of jail sentence and fine on accused is mandatory - In
the instant case. High Court was not right in setting aside the entire
jail sentence of respondent No. 1 while upholding his conviction
under s.325 !PC - High Court ought to have either upheld the
award ofjail sentence offour years awarded by the Sessions Court D
or reduce the jail sentence to any reasonable term bui it had no
jurisdiction to jitlly set aside the jail sentence and substitute it by
imposing on(v fine of Rs. I0,0001- - In view ~f time consumed in the
litigation (37 years) coupled with the findings of two courts below
that respondent No. I did not cause any injmy to /he deceased and
injured (PW-2). respondent No.Is conviction under s.325 !PC is E
upheld and punishment ~l imprisonment of 40 days with fine of
Rs.10,0001- and in default of payment offine, to undergo one month
rigorous imprisonment is awarded - Penal Code, 1860 - s.325 -
Code of Criminal Procedure. I 973 - s.428.
Code of Criminal Procedure, !973 - s.428 - Scope of- Held: F
s.428 provides that the period of detention spent in jail as under-
triul or as convict will be set off against his total jail sentence once
awarded lo him in connection with the same offence - Jn the instant
case, the period already undergone by respondent No. I (40 days)
while he was in detention, as under-trial and as convict. was also a
G
jail sentence and could be treated as jail sentence once awarded to
respondent no. I under s.325 !PC. and acco,·dingly its benefit by
way of set off could be given to him under s.428 of Code - Penal
Code. 1860 - s.325.
H
2 SUPRBME COURT REPORTS [2017] l l S.C.R.
A Partly allowing the appeal, the Court
HELD: l., So far as Scction 325 IPC is concerned, its reading
would show that once the accused is held guilty of commission of
offence punishuble under Section 325 IPC, then imposition of jail
sentence and fine on the accused is mandatory. ln other words,
B the award of p1unishment would include both, i.e., jail sentence
and line. 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. So f$r as Section 428 of Code is concerned, it provides
that the period of detention spent in jail as under-trial or as convict
c will be set off against his total jail sentence once awarded to him
in connection with the same offence. [Paras 22, 23](10-C-D]
2. The High Court was, therefore, not right in setting aside
the entire jail sentence of respondent No.I while upholding his
conviction under Section 325 IPC. The High Court ought to
D 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.I 0,000/
-. The period :llrcady nnclergone by respondent No.I (40 clays)
E while he 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.I under Section 325 IPC, and accordingly its
benefit by way of set off could be given to him under Section 428
of Code. [Paras 25, 26)(11-D-E]
F 3. In vie"' of the time consumed in the litigation (37 years)
coupled with the findings of two courts below wherein it was held
that rcsponclenl No.I did not cause any injury to the deceased
and injured (PW-2), respondent No.1 's conviction under Section
325 I PC is upheld and punishment of imprisonment of 40 clays
with fine of Rs.10,000/- and in default of payment of fine, to
G undergo one month rigorous imprisonment is awarded. Since
respondent No.J has already undergone the jail sentence of 40
days partly as u:nder-trial and partly as convict, he is not required
to undergo any further jail sentence in the case at hand. [Paras
27, 28][11-E-H]
H
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 3
State of Maharashtra & Anr. v. Najakat Alia Mubarak A
Ali (2001) 6 SCC 31l : (20011 3 SCR 600 - referred
to.
Case Law Reference
[2001] 3 SCR 600 referred to Para 24
B
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
243 7 of20 I0.
From the Judgment and Order dated 10.02.2006 passed by the
High Court of Judicature at Allahabad in Criminal Appeal No. 211 of
1982. c
Ratnakar Dash, Sr. Adv., Ms. Alka Sinha, Abhishek, Anuvrnt
Sharma, Advs. for the Appellant.
Sidhaith Dave, Ms.Jemtiben A.P., Senthil Jagadeesan, Ad vs. for
the Respondents.
D
The Judgment of the Court was delivered by
ABHAY MAN OH AR SA PRE, J. I. This appeal is filed by the
State against the judgment and order dated I0.02.2006 of the High Court
of Judicature at Allahabad in Criminal Appeal No.211 of 1982 whereby
the High Court partly allowed the appeal Ii led by the accused persons
and while upholding the conviction of the five accused interfered in the E
sentence and its quantum awarded to the accused persons by order
dated 22.01.1982 passed by the !Vth Additional Sessions Judge,
· Azamgarh in Sessions Trial No.132of1981.
2. Having regard to the short controversy. which now remains for
decision in this appeal as a result of subsequent events occurring in the F
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, (I) Tribhuwan (2) Sita Ram (3) Ram
Suresh (4) Rajendra (5) Ram Vijay and (6) Jogendra were the residents G
of a village - Secrpatti 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 other. All the accused persons, Ram Lagan
and his family members were known to each other.
H
4 SUPREME COURT REPORTS [2017] l l S.C.R.
A 4. On 14.06.1980 around 8.00p.m., Tribhuwan was passing in front
of Ram Lagan's house when pet dog ofRam Lagan sitting in front of his
house started barklng 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.
B
5. This inci!fent, unfortunately, aggravated and led to filthy verbal
exchanges betwe~n 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
c Surcsh, Ram Vijay, Rajcndra and Jogendra with weapons (Pistol. Farsa.
Lathi, Spear) in their hands. This incident attracted many persons living
in the area and who were passing on th~ road. The altercation and the
attack by the accu$ed persons resulted in causing injuries to Ram Lagan
and one Baij Nath (PW-2). Both injured persons were taken to nearby
D 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, wcne 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
E Session Trial No.132of1981 before the lVth Additional Sessions Judge,
Azamgarh.
7. The Sessions Judge, by his order 22.01.1982, acquitted one
accuscd-Jogcndra from all the charges whereas convicted remaining
five accused and sentenced each of them as under:
F
Name of the conviction sentence
accused
Jogendra acquitted
G Ram Vijay UIS 302 !PC Life imprisonment
Sect11 •O RI for four years
325/149 !PC
Section 148 !PC RI for two years
H
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 5
[ABHAY MANOHAR SAPRE. J.]
A
Tribhuwan Section 324/ 149 !PC RI for two years
Section 3251149 !PC
Section 148 !PC RI for four years
RI for two years B
Sita Ram Section 324/149 !PC RI for two years
Section 325/ 149 !PC
Section 147 !PC RI for four years c
RI for one year
Ram Surcsh Section 147 !PC RI for one year
Section 324/149 IPC
D
Section 325/.149 IPC RI for two years
RI for four years
E
Rajendra Section 147 !PC RI for one year
Section 324/ 149 !PC RI for two years
Section 325/149 IPC
F
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 G
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
H
6 SUPREME COURT REPORTS (2017] l l S.C.R.
A consequence, tlje order of the Sessions Judge so far as the State was
concerned, became final.
9. The High Court. by impugned judgment, partly allowed the
appeal and whil~ upholding the conviction of the five accused interfered
in the sentence and its quantum awarded to each accused persons. The
B High Comt modified the sentence of the five accused as under: -
Nnn1c of the conviction sentence
accused
Ram Vijay Section 304 Part I RI for I 0 years
c !PC
Fine of Rs,3000/- In
Section 148 !PC default of payment of
fine, to undergo RI for
three months
Section 325/149 !PC Fine of Rs.10,000/- In
D
default of payment of
fine, to undergo RI for
one year
Tribhuwan Section 148 !PC Fine of Rs,3000/- In
E default of payment of
fine, to undergo RI for
three months
Fine of Rs. I 0,000/- In
Section 325/ I49 !PC default of payment of
F I fine, to undergo RI for
one year
Sita Ram Section 147 !PC Fine of Rs. I 000/- In
default of payment of
fine. to undergo RI for
G one month
Fine of Rs.I 0.000/- In
Section 3_J/149 !PC
default of payment of
fine, to undergo RI for
one year
H
THE STATE OF UTTAR PRADESH v. TRIBHUWAN &. ORS. 7
(ABf!AY MANOHAR SAPRE, J.]
RamSuresh Section 147 IPC Fine of Rs.1000/- In A
default of payment of
fine, to undergo RI for
one month
Fine of Rs.10,000/- In
Section 325/149 !PC
default of payment of B
fine, to undergo RI for
one year
Rajendra Section 147 !PC Fine of Rs.1000/- In
default of payment of
fine, to undergo RI for
c
one month
Fine of Rs.I 0,000/- In
Section 325/149 !PC
default of payment of
fine, to undergo RI for
D
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.
E
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. F
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 thereot; the appeal against Ram
Vijay also does not survive for its consideration on merits. G
13. This appeal is now survived only against Tribhuwan (respondent
No. I) for its consideration on merits.
14. The short question, which arises for consideration in this appeal,
is whether any case is made out by the State against accused person-
H
8 SUPREME COURT REPORTS (2017] l l S.C.R.
A Tribhuwan (respon\ient No. I) 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-Stale and Mr. Sidharth Dave. learned counsel for the
B respondent.
16. Learned ~ounsel for the appellant (State) has argued only one
legal point in support of the appeal. According to learned counsel, the
Sessions Judge righttly convicted respondent No. I (Tribhuwan) for an
offence punishable under Section 325 read with Section 149 IPC and,
c accordingly, award¢d rigorous imprisonment of four years to him but the
High Court though was right in upholding the conviction fell in error in
setting aside the jail,sentencc of four years awarded to him by the Sessions
Court and substituting the same by imposing only a fine of Rs. I 0,000/-.
17. Learned counsel urged that imposition of jail sentence and
D fine both is mandatory once the accused is held guilty for the offence
punishable under Section 325 !PC 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 qfRs.10.000/-. It is not permissible in law and hence
E to this extent, the judgment of the High Court deserves to be set aside
and the order of the Sessions Judge be restored.
18. in reply, the submission of learned counsel for respondent
No. I (accused-Tribhuwan) was that admittedly respondent No. I has
undergone 40 da)<S' jail sentence partly as under-trial prisoner and
F remaining after suffering tl1e conviction from the Sessions Court. It
was, therefore, his submission that such imprisonment can be taken as
imposingjail sentence of 40 days to respondent No. I under Section 325
!PC. In other words, his submission was that though the High Court
instead of awardinf any jail sentence awarded only the fine of Rs. I 0.000/
G
- 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. I
would thus be enti'tled to take benefit of set off of the period as already
H
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 9
[ABHAY MANOHAR SAPRE, J.]
undergone by him under Section 428 of the Code of Criminal Procedure, A
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, B
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. I 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. I's
conviction under Section 325 !PC is maintained by awarding him jail
c
sentence of what he has already undergone, i.e., 40 days with fine amount
of Rs. I 0,000/- 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 D
of the· record of the case, we find force in the submission of the learned
counsel for the appellant and also of respondent No. I (Tribliuwan).
21. Section 325 oflPC and Section 428 of the Code are relevant
for deciding the appeal. These Sections read as under:
E
Section 325 of IPC
"325. Punishment for voluntarily causing grievous hurt.-
Whoever, except in the case provided for by section 33S,
voluntarily causes grievous hurt, shall be punished with
imprisonment of either description for a term which may
F
extend to seven years, and shall also be liabie to fine."
Section 428 of Cr.PC
"428. Period of detention undergone by the accused to be
set off against the sentence of imprisonment.-Whcrc an.
accused person has, on conviction, 'been sentenced to G
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
H
IO SUPRlME COURT REPORTS [2017 j I! S.C.R.
A 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,
B 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
c fine on the accused is mandatory. In other words, the award of
punishment wo4ld include both. i.e., jail sentence and fine. So faras 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.
D 23. So far as Section 428 of Code is concerned, it provides that
the period of detention spent in jail as under-trial oras convict will be set
off against his total jail sentence once awarded to him in connection with
the same offence.
24. This ~ourt {Three Judge Bench) had the occasion to interpret
E Section 428 of the Code in the case of State of Maharashtra & Anr.
vs. NajakatAlia Mubarak Ali, (2001) 6 SCC 311 wherein this Court
speaking through Justice K.T. Thomas representing m<tjority view held
as under:
"15 ............ We may now decipher the two requisites
postulated in Section 428 of the Code:
F
(/) During the stage of investigation, enquiry or trial of a
particul41r case the prisoner should have been in jail at least
for a certain period.
(2) He should have been sentenced to a term of
G imprisonment in that case.
H!. 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
H
THE STATE OF UTTAR PRADESH v. TRIBHUWAN & ORS. 11
(ABHAY MANOHAR SAPRE, J.]
investigation, enquiry or trial, the convicted person need A
0
undergo only the balance perio d 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
B
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, egquiry 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 c
imposed on him."
25. In our considered opinion, the High Cou11 was, therefore,not
right in setting aside the entire jail sentence of respondent No. I while
upholding his conviction under Section 325 !PC. The High Court. in our
view, ought to have either upheld the award of jail sentence of four D
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 hy imposing only fine of Rs. !0,000/-.
26. As rightly argued by the learned counsel for respondent No. I,
the period already undergone by respondent No.I (40 days) while E
respondent No. I 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.I under Section 3251PC, and accordingly its benefit
by way of set off could be given to hi.m under Section 428 of Code.
27. In our considered opinion, having regard to the time consumed F
in the litigation (37 years) coupled with the findings of two Courts below
wherein it was held that respondent No.I did not cause any injury to the
· deceased and injured Baij Nath (PW-2), we arc inclined to uphold
respondent No.l's conviction under Section 325 !PC and award to
respondent No. I's punishment of imprisonment of 40 days with fine of
Rs.10,000/- and in default of payment of fine, to undergo one month G
rigorous imprisonment.
28. Since respondent No. I 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.
H
12 SUPRfME COURT REPORTS [2017] l l S.C.R.
A 29. Respondent No.I, however, claims to have deposited a fine
amount ofRs. l 0,000/- imposed by the High Court. If that be so then he
· need not undergo any more jail sentence. However, this fact must be
verified by the Sessions Court on receipt of this judgment.
30. The appeal thus is allowed in part. The impugned judgment is
B modified to the ~xtent indicated above.
Devika Gujral Appeal partly allowt·d.
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