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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  person-

Tribhuwan  (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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