Allahabad High Court
Khandar Singh 5 Others vs State on 1 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 93 Case :- CRIMINAL APPEAL No. - 1109 of 1988 Appellant :- Khandar Singh 5 Others Respondent :- State Counsel for Appellant :- Shashank Shekhar,Deepak Rana Counsel for Respondent :- A.G.A. Hon'ble Surendra Singh-I,J.
1. Heard Sri Deepak Rana, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.
2. This criminal appeal has been filed against the judgement and order dated 26.04.1988 passed by VIth Additional District and Sessions Judge, Ghaziabad, in Sessions Trial No. 94 of 1986, State of U.P. Vs. Khandar Singh and others, arising out of Case Crime No. 19A of 1982, under Sections 147, 323, 324, 325, Police Station- Babugarh, District- Ghaziabad.
3. By the impugned order, the appellants Khandar Singh, Bir Singh, Sukhbir Singh, Rishi Pal Singh, Shri Pal Singh and Smt. Phoolwati were convicted under Sections 147, 323/149, 324/149 and 325/149 IPC and sentenced under Section 147 IPC for one year's rigorous imprisonment, under Section 325/149 IPC for two years' rigorous imprisonment and Rs. 2000/- as fine, in default of payment of fine six months' rigorous imprisonment, under Section 324/149 one year's rigorous imprisonment and under Section 323/149 three months' rigorous imprisonment. The period of sentence in each sections will run concurrently.
4. During pendency of appeal accused Khandar Singh, Rishi Pal Singh and Smt. Phoolwati died and appeal qua them has been abated. This criminal appeal is being disposed of only against accused-appellants Bir Singh, Sukhvir Singh and Shri Pal Singh.
5. The prosecution case in brief is that informant Kartar Singh son of Dev Raj Singh resident of village Dadayara, Police Station Babugarh, District Ghaziabad submitted written report (Exhibit Ka-1) to the effect that on 19.01.1982 between 8 and 9 a.m., accused-appellants Khandar Singh son of Nathu Singh, Bir Singh, Sukhbir Singh, Rishi Pal Singh, Shri Pal Singh, all sons of Khandar Singh and Smt. Phoolwati wife of Khandar Singh assaulted Janam Singh son of Bhulwa, Manveer son of Janam Singh, Lakhpat son of Umrao, Devi Sharan, Sardar Singh and Kartar Singh all sons of Dev Raj, with lathi, Bulli, Tabal and Garasa due to dispute about agricultural land. The witnesses Shyam Singh son of Deeva, Netra Pal son of Kale, Hoshiyaar Singh son of Sallarh, Ramvilas son of Arjun, Har Narayana son of Inder, who were present on the spot, protected the injured from being assaulted. On the basis of written report of Kartar Singh, Case Crime No. 19-A of 1982 under Sections 147, 323/149, 324/149 and 325/149 IPC was registered on 19.01.1982 at 10.50 p.m. The Chik FIR (Exhibit Ka-11) and G.D. relating to institution of the criminal case are on record. The medical examination of injured Kartar Singh, Sardar Singh, Lalloo, Janam Singh and Manveer Singh was done at PHC Hapur. Their injury reports are Ext.Ka 5, Ext.Ka 6, Ext.Ka 7, Ext.Ka 8, Ext.Ka 9, respectively. The injuries were found on various parts of their body. The x-ray of injured Kartar Singh, Sardar Singh, Janam Singh and Laloo was done at MMG Hospital Ghaziabad by Dr. Gyanendra Kumar, Radiologist. He prepared x-ray report of the injured. According to X-ray report of Sardar Singh, Ext.Ka 2, fracture in acromion process of scapula was seen. According to x-ray report of Janam Singh Ext.Ka 3, fracture in his nasal bone was found and according to x-ray report of Lallu, Ext.Ka 4, fracture in shaft of ulna bone was seen. The fractures were found in the body of injured Sardar Singh, Janam Singh and Lallu. Section 325 was added with the Case Crime No. 19A of 1982.
6. The investigation was done by the Sub-Inspector Hardwari Lal and later on by the Sub-Inspector Gajraj Singh. The Sub-inspector Hardwari Lal visited the place of occurrence and prepared the site plan, Ext.Ka 10. Subsequently, the Sub-Inspector Gajraj Singh recorded the statement of witnesses and after investigation filed charge-sheet under Sections 147, 323/149, 324/149 and 325/149 IPC against the accused appellants Khandar Singh, Bir Singh, Sukhbir Singh, Rishi Pal Singh, Shri Pal Singh and Smt. Phoolwati.
7. On the criminal case being committed by Judicial Magistrate-I, Hapur, the Sessions Court framed charge under Sections 147, 323/149, 324/149 and 325/149 against the accused Khandar Singh, Bir Singh, Sukhbir Singh, Rishi Pal Singh, Shri Pal Singh and Smt. Phoolwati. The accused-appellants denied the charge and claimed trial.
8. To prove the charge, the prosecution examined PW-1 Janam Singh, PW-2 Kartar Singh and PW-3 Shyam Singh as witnesses of facts. The prosecution also examined formal witnesses PW-4 Dr. Gyanendra Kumar, Radiologist, PW-5 Dr. K.P. Sarabhai, Investigating Officers PW-6 Sub-Inspector Haridwari Lal and PW-7 Gajraj Singh.
9. PW-1 Janam Singh, PW-2 Kartar Singh and PW-3 Shyam Singh gave evidence about the occurrence.
10. PW-4 Dr. Gyanendra Kumar Radiologist proved x-ray report of injured Sardar Singh, Janam Singh and Lallu, Exhibit Ka-2, Exhibit Ka-3 and Exhibit Ka-4, respectively.
11. Dr. K.P. Sarabhai proved injury reports of Kartar Singh, Sardar Singh, Lallu, Janam Singh and Manveer Singh which are Ext.Ka.5, Ext.Ka-6, Ext.Ka.-7, Ext.Ka-8 and Ext.Ka-9, respectively. He has also proved the injury reports of Khandar Singh, Ext.Kha-1, Smt. Phoolwati Ext.Kha-2, Sukhvir Singh Ext.Kha-3, Bir Singh Ext. Kha-4 and Rishi Pal, Ext.Kha-5. P.W.-5, Dr. K.P. Sarabhai stated that the injuries received by persons on the side of informant and accused persons could be caused on 19.1.1982 at about 8-9 p.m. by lathi, bulli, Tabbal and Garasa.
12. PW-6 also proves the site plan relating to cross case, S.T. No. 66 of 1986 ( State Vs. Lakhpat and others).
13. The Sub-Inspector Gajraj Singh gave evidence about the investigation done by him. He proved charge-sheet filed against accused appellants Khandar Singh, Bir Singh, Sukhbir Singh, Rishi Pal Singh, Shri Pal Singh and Smt. Phoolwati. He also proved charge-sheet relating to cross case, S.T. No. 66 of 1986, Ext.Ka-7 and stated that the cross case was also related to cognizable offence.
14. The court recorded statement under Section 313 CrPC of accused appellants Khandar Singh, Bir Singh, Sukhbir Singh, Rishi Pal Singh, Shri Pal Singh and Smt. Phoolwati. They denied the prosecution case. They also denied that the informants have not caused any injury. They also stated that false FIR and x-ray report was prepared by the informant. They also submitted that false charge-sheet was filed against them.
15. The appellants accused also stated that they were constructing house situated at old Abadi. The informant and his persons came there and assaulted them and registered false case against them.
16. It has been submitted by the learned counsel for the appellant that the Trial Court has convicted the appellants against the weight of evidence on record. It is further submitted that conviction of the appellants are bad in eye of law. It has also been submitted that the sentences awarded to the appellants are too severe. It has been prayed that the appeal may be allowed and the judgement and order dated 26.04.1988 be set aside and they may be acquitted of the offences.
17. Per contra, learned A.G.A. for the State has supported the Trial Court's judgement and order and submitted that the Trial Court has passed the impugned judgement and order after proper appreciation of the facts witnesses on record as well as the law applicable and that there is no scope for interference in the impugned judgement and order.
18. Heard learned counsel for the appellants, learned A.G.A. and perused the material available on record.
19. The definition of Section 324 I.P.C. is as follows:
324. Voluntarily causing hurt by dangerous weapons or means.--Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
In order to sustain a conviction under this Section prosecution has to prove that the accused voluntarily caused hurt and that such hurt was caused by means of an instrument referred to in the section. Nothing short of that will suffice.
20. In Mukati Prasad Rai @ Mikti Rai and others vs. State of Bihar, (2004) 13 SCC 144 the Apex Court has upheld the conviction under Section 324 I.P.C. for injuries caused by Lathi.
21. The offence punishable under Section 325 I.P.C. has been defined under Section 320 I.P.C. Section 320 I.P.C. reads as follows:
320. Grievous hurt.--The following kinds of hurt only are designated as "grievous":--
First -- Emasculation.
Secondly --Permanent privation of the sight of either eye.
Thirdly -- Permanent privation of the hearing of either ear, Fourthly --Privation of any member or joint.
Fifthly -- Destruction or permanent impairing of the powers of any member or joint.
Sixthly -- Permanent disfiguration of the head or face.
Seventhly --Fracture or dislocation of a bone or tooth.
Eighthly --Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
A person cannot be said to have caused grievous hurt unless the hurt caused is one of the kinds of hurts specified under Section 320 I.P.C. It is the duty of the Court to give a finding of his own whether the hurt was simple or grievous. The Doctor has to describe the facts in respect of nature of injuries and the Court is to decide whether the nature of the injury described by the Doctor comes within any of the clauses of Section 320 I.P.C.
22. In Hori Lal and another vs. State of U.P., (1970) 1 SCC 8 the Apex Court has held that for the application of clause 7 of Section 325 it is not necessary that a bone should be cut through and through or that the crack must extend from the outer to the inner surface or that there should be displacement of any fragment of the bone. If there is a brake by a cutting or splintering of the bone or there is a rupture or fissure in it, it would amount to fracture within the meaning of Clause 7 of Section 320 I.P.C.
23. In the light of the aforesaid provisions relating to Sections 324 and 325 I.P.C., the evidence of witnesses of facts is to be examined.
24. P.W.-1, injured Janam Singh has stated in his evidence dated 22.04.1987 that the incident took place about five years three months ago. It was about 8 to 9 o'clock morning. Janam Singh and his companions were on their land having Khasra No. 123. Besides Janam Singh, Kartar Singh, Lakhpat, Devi Singh, Sardar Singh, Manveer Singh and Lalloo were also present there. Rishipal, Veer Singh, Sukhveer and Shripal came there. Rishipal had Tabbal, Veer Singh spade (Ganasa) and Sukhveer Singh had Budi. Remaining accused had Lathi. Phoolwati wife of Khadadar Singh was also present there having a Danda in her hand. These accused wanted to capture the house of the informant. The accused persons attacked on the informant and his companions with Ganasa, Tabbal, Budi and Lathi. PW-1, Janam Singh, Sardar Singh, Kartar Singh, Lallu and Manveer Singh received injuries in the occurrence. The incident was seen by Shyama, Netrapal, Harnarayan and Rambilas etc. who saved the injured. The injured and persons of his side snatched the weapon of the accused-appellant and defended themselves. The case of the land, in which the accused persons wanted to take possession, is pending in the Court of District Judge. Informant and his side has won the case in the Court of Hapur. The witness Hoshiyar has died. In the occurrence, there was fracture in the upper forearm of Lallu. P.W.-1 Janam Singh received fracture in the bone of the nose. Five other injured persons on the side of the informant had also received injuries and were examined in the District Hospital. Due to the injuries received in the occurrence there was fracture on the head of Sardar Singh. PW-1, Janam Singh has stated in his cross examination that his house is situated about 10-15 Gaj distance from his house.
25. P.W.-2, the informant/injured Kartar Singh has stated in his evidence dated 27.04.1987 that about five years three months ago between 8 am to 9 am, informant and his companions Lakhpat, Devi Singh, Janam Singh, Manveer, Sardar Singh and Lallu were at their house situated at Khasra No. 123. Suddenly, Veer Singh, Rishipal, Sukhveer Singh, Shreepal Singh, Smt. Phoolwati came there holding Ganasa, Burari, Tabbal and Lathi in their hands. They started beating the informant and his companions. Kartar Singh, Janam Singh, Lallu Singh, Sardar Singh and Devi Singh sustained injuries in the occurrence. Veer Singh attached by Ganasa, Rishipal with Tabbal and Sukhveer with Burari. Other accused assaulted by Lathies. The incident was witnessed by Shyam Singh, Harnarayan, Netrapal, Rambilas and others. The informant Kartar Singh and persons of his side snatched the weapons of assault of the accused and used it in their private defence. PW-2 Kartar Singh proved the written report (Exhibit Ka-2) which he had given in the police station concerned and on the basis of which the FIR was registered. Accused wanted to forcibly occupy their land. PW-2 Kartar Singh and his companions won the case relating to the land in Hapur Civil Court. The medical examination of the injured was done in the District Hospital Ghaziabad. In the occurrence, there was fracture in the upper forearm of Lallu and that of the nose of Janam Singh. There was a crack in the head of Sardar Singh. PW-2 Kartar Singh admitted in his cross examination that he reached the place of occurrence about half hour before the occurrence has taken place. There is a distance about three hundred yards between the place of occurrence and the house of Kartar Singh. Sardar Singh, Janam Singh and Kartar Singh have separate houses in the village. PW-2 has admitted that he and the persons belonging to his side have inflicted injuries to the accused in their self-defence. PW-2 Kartar Singh also admitted that accused have also registered a cross case against the informant and his companions regarding the incident. PW-2 Kartar Singh has denied that he has lodged the FIR as a counterblast of the cross case lodged by the accused.
26. PW-3 Shyam Singh has stated in his evidence dated 15.05.1987 that the occurrence took place about five years four months earlier. It was about 8 am. He was present at his house. The place of occurrence is near to his house. Accused Rishipal holding Tabbal, Sukhveer Singh holding Budi, Veer Singh, Ganasa and remaining accused holding lathi in their hands. At that time, Lakhpat, Sardar Singh, Janam Singh and Kartar Singh were sitting in their hut and smoking Hukka. The accused suddenly started quarrelling and assaulting them. On hue and cry being made PW-3 Shaym Singh, Netrapal, Rambilas reached on the spot and accused leaving their weapons fled from the spot. In the incident Sardar Singh, Janam Singh and Lallu received serious injuries and other injured received simple injuries. PW-3 Shyam Singh has denied the suggestion that there is no house or hut on the place of occurrence. He has also denied that the accused assaulted the informant and his companions in self-defence. PW-3 denied that Kartar Singh, Sardar Singh and Lakhpat has also started beating the accused.
27. Injured Janam Singh and the eye witness PW-3 Shyam Singh has proved the date, place and time of incident. They have also proved the role of appellants Veer Singh, Sukhveer and Shripal Singh in the assault on injured from the side of the informant, Kartar Singh. They have proved that appellants-accused Veer Singh with Burara, Sukhveer with Ganasa and Shripal with Lathi assaulted PW-1 Janam Singh, injured Sardar Singh and Lallu with dangerous weapon causing them grievous hurt. They have also proved that Kartar Singh submitted written report of the incident in the police station concerned on the basis of which first information report was registered against appellants Veer Singh, Sukhveer Singh and other accused, who have died. They have proved that after the incident the medical examination and x-ray of their injuries were done and fracture was found in the body of injured Sardar Singh, Janam Singh and Lallu.
28. PW-4 Dr. Gyanendra Kumar, Radiologist has proved the x-ray report dated 25.01.1982 of Sardar Singh, Janam Singh and Lallu, Exhibit Ka-2, ka-3 and ka-4, respectively. He has stated that in the acromion process of the scapula bone of injured Kartar Singh, fracture was found. He has also proved the fracture in the nasal bone of injured Janam Singh. PW-4 Dr. Gyanendra Kumar has also proved that in the x-ray report of Lallu, ulna bone of his left forearm was found to be fractured.
29. The oral evidence of PW-1 and PW-2 is corroborated by x-ray report of Sardar Singh, Janam Singh and Lallu Singh and injury report of Kartar Singh, Sardar Singh, Lallu, Janam Singh and Manveer Singh which are Exhibits Ka-5, ka-6, Ka-7, ka-8 and ka-9, respectively. The oral evidence of witnesses of facts, PW-1 Janam Singh, PW-2 Kartar Singh and PW-3 Shyam Singh is cogent, trustworthy, reliable and truthful. Nothing emerges from their cross examination which may prove them unreliable or false.
30. Oral evidence of aforesaid witnesses of facts, namely, PW-1, PW-2 and PW-3 is also corroborated by the written report (Exhibit Ka-1), Chick FIR (Exhibit Ka-11), the entry of GD institution of case in G.D. (Exhibit Ka-12) which is as report No. 12, dated 19.01.1982 time 10:50 o'clock.
31. PW-5 Dr. K.P. Sarabhai has proved that on the day of incident i.e. 19.01.1982 he had also examined the injuries of accused Phoolwati, Khandar Singh, Sukhveer Singh and Veer Singh. He had found injuries on the person of these accused. About the injuries received by the accused, the prosecution witnesses have stated that it was accused persons who first assaulted the informant and his companions and caused injuries to them and, thereafter, informant and his companions snatched the weapons from the accused persons and caused injuries in the exercise of right of self defence. It is clear that informant and his companions were in possession of the disputed land where they were sitting and smoking Hukka in the hut situated in their land. Thus, it is proved that informant and his companions inflicted injuries to accused persons and persons of his side in the right of private defence.
32. From the analysis of the oral and documentary evidence on record it is proved that on the date, time and place of occurrence appellants Veer Singh, Sukhveer, Shripal Singh and other three co-accused persons who have died, made an unlawful assembly and with dangerous weapon assaulted the injured Sardar Singh, Janam Singh and Lallu and other companions with Lathi, Tabbal and Farsa causing simple and grievous injuries to them. Thus, the prosecution has proved charge under Section 147, 323/149, 324/149, 325/149 against appellants-accused Veer Singh, Sukhveer Singh and Shripal Singh.
33. Learned counsel for the appellants has submitted that the incident had taken place on 19.01.1982 and 40 years have passed since then. Appellants and informant both are living in peace together. No criminal history has been produced against the accused-appellants by the State. Appellants be given the benefit of Probation of Offenders Act 1958 and release on probation.
34. Section 4 of the Probation of Offenders Act, 1958 reads as follows :
"4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
35. A similar provision finds place in the Code of Criminal Procedure. Section 360 Cr.P.C. provides:
360. Order to release on probation of good conduct or after admonition.
(1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour:
Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
36. These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
37. In the case of Subhash Chand and others vs. State of U.P., 2015 Lawsuit (Alld) 1343, this court has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:
"It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgment to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgment. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance."
38. In addition to the above judgment of this Court, this Court finds that the Hon'ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659, giving the benefit of Probation of Offenders Act, 1958 to the accused has observed as below:
"The learned counsel appearing for the accused submitted that the incident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The incident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour."
39. Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.
40. In the light of above discussion, I find no illegality, irregularity or impropriety nor any jurisdictional error in the impugned judgment and order of the court below. The conviction recorded by the court below under Sections 147, 325/149, 324/149, 323/149 I.P.C. is upheld and is not required to be disturbed.
41. However, instead of sending the appellants to jail, they shall get the benefit of Section 4(1) of the Probation of Offenders Act, 1958 and shall be released on probation under the supervision of the Trial Court for one year on filing two sureties to the tune of Rs. 25,000/- coupled with personal bonds and undertaking to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during this period. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the court below. It is also desirable that accused-appellants may be directed to deposit Rs.5,000/- each as compensation in this case within two months. The amount of Rs. 5000/- deposited by the each accused-appellants, Rs.5,000/- shall be paid to injured having received grievous injuries, namely, Janam Singh, Sardar Singh and Lallu, or in case of their death to their legal representatives. The appellants-accused shall file the aforesaid bonds and sureties and shall deposit the compensation amount within two months from the date of the judgment in the court concerned as per law. In case surety bonds and compensation is not deposited, appellants shall have to undergo the sentence awarded by the Trial Court.
43. Accordingly, this appeal is partly allowed regarding sentences of the appellants.
44. Let a certified copy of this order along with record be sent to the court concerned for compliance.
Order date: 01.03.2023 Brijesh Maurya