Allahabad High Court
Ram Shakal And Others vs State Of U.P. on 6 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 6
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 04.12.2019
Delivered On:- 06.01.2020
Case :- CRIMINAL APPEAL - 2070 of 2003
Appellant :- Ram Shakal And Others
Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh Shankar Srivastava, Mahendra Singh Yadav, Ramesh Kumar Shukla
Counsel for Respondent :- Govt.Advocate
Hon'ble Siddharth, J.
1. Heard Sri Ramesh Kumar Shukla and Sri Mahendra Singh Yadav, learned counsels for the appellant and Sri S.S. Tripathi, learned A.G.A. for the State.
2. This criminal appeal has been preferred by five appellants, namely, Ram Shakal son of Vishwanath Kurmi, Nand Lal son of Ram Nath, Babu Lal son of Mewa Lal, Shankar son of Munni Lal and Khunni son of Sottan @ Sochan against the judgment and order dated 26.04.2003 passed by Additional Sessions Judge, Court no. 10, Varanasi in Sessions Trial No. 715 of 1997, convicting the appellants and sentencing them to undergo 3 months rigorous imprisonment under Section 147 IPC, 6 months rigorous imprisonment under Section 323/149 IPC and 3 years rigorous imprisonment under Section 324/149 IPC. Appellant no. 2, Nand Lal, has also been sentenced to 6 months rigorous imprisonment under Section 148 IPC. All the sentences are to run concurrently.
3. Prosecution case is that three trees of mango were sold which belonged to the family of Rajendra Prasad. The members of his family wanted to share the money received from sale of trees but one member of his family, Babu Lal, who had connections with anti-social elements wanted to usurp the entire money. He wanted that the entire sale consideration should be deposited before Gram Pradhan, Ram Shakal. On 29.11.1995, Babu Lal went to the house of Gram Pradhan, Ram Shakal and at 10:00 am he came to the house of the informant along with Ram Shakal, Nand Lal, Ram Nath, Khunni and Shankar. Nand Lal had gandasa, Ram Shakal had katta and lathi and remaining persons had lathis and iron rods in their hands. Babu Lal exhorted them to kill all the persons in the house and Ram Shakal made fire on two brothers of the informant but they escaped. The brother of the informant, Ram Ji, Bachai and mother, Keshari Devi closed the door due to fear but the accuseds broke the door and made attempt by gandasa and lathi on Bachai and Keshari Devi and they got injured. Manoj Kumar, Jivdhan, etc., who were doing the work on loom saw the incident. Bachai and Smt. Keshri Devi became unconscious and Ram Ji had blood all over his body. Informant went to Kotwa Police Chowki with Ram Ji. Two police men came from the police chowki and got the injureds admitted in Kabir Chaura Hospital, Varanasi. Information of the incident was given to Senior Superintendent of Police, Varanasi by telegram. On 29.11.1995 Dr. S.C. Singh, conducted the medical examination of the injureds and injuries were found on their bodies.
4. On the body of Bachai Ram the following injuries were found-
(i) Incised wound 6 cm x ½ cm x bone deep on left side head.
(ii) Incised wound 5 cm x 5cm x 2 cm x bone deep on right side head. KUO, adviced x-ray skull.
(iii) Incised wound 3 cm x ½ cm into left temporal region, muscle deep. KUO.
(iv) Incised wound 2cm x ½ cm x skin deep on left lower pinna.
(v) Contused swelling 7 cm x 6 cm left side face.
(vi) Incised wound 4cm x ½ cm x bone deep on part of lower arm, upper part. KUO, adviced x-ray.
(vii) Incised wound 2 cm x ½ cm x muscle deep on left arm.
(viii) Incised wound 3 cm x 2 cm x bone deep on left hip.
(ix) Abraded contusion 2 cm x 1 cm upper part of left thigh.
(x) Contused swelling 6 cm x 4 cm over right hand.
Injury nos. 2 and 6 were kept under observations. All injuries were caused by sharp weapon, duration was found to be fresh.
5. Injuries on the body of the Ram Ji were as follow -
(i) Lacerated wound 3 cm x 1 cm, scalp deep left side head.
(ii) Incised wound 3.5 cm 5 cm, scalp deep on middle of head.
(iii) Contused swelling 9cm x 4cm, back of chest.
(iv) Lacerated wound 5 cm x 2 cm on posterior aspect of right hand. KUO.
All the injuries were caused by blunt object. Duration fresh. Injuries no. 1 and 2 were simple. Injury no. 3 was kept under observation.
6. Injuries on the body of Keshri Devi were found as follows-
(i) Lacerated wound 2cm x ½ cm x muscle deep on right side back of lower arm.
(ii) Contused swelling 6 cm x 4 cm on middle of back chest. KUO. Advised x-ray. Injuries caused by blunt object. Duration fresh. Fractures on parietal bone and left arm of injured Bachai was found.
7. On 29.11.1995 informant got an application typed which was presented before the Police Station Rohaniya on 4.12.1995 and Case Crime No. 185 of 1995, under Sections- 147, 148, 149, 307, 452, 323, 504, 506 IPC was registered against the appellants.
8. Investigation was conducted by the Investigating Officer and chargesheet was submitted. The trial court framed charges under Sections 147, 307/ 149, 452, 149, 323/149, 325/149, 504/149 and 506/149 IPC against all the accuseds. Against the accuseds, Nand Lal and Ram Shakal, charge under Section 148 IPC was also framed.
9. The prosecution examined P.W.-1, Rajendra, the informant; P.W.-2, Ram Ji, P.W.-3, Pappu @ Dinesh and P.W.-4, Smt. Keshri Devi, as witnesses of prosecution. They stated that the accuseds came to their house and caused the alleged injuries. The injureds some how saved their lives. Ram Ji, Keshri Devi and Bachai suffered injuries. Ram Shakal had country made pistol, Nand Lal had gandasa and other accuseds have rods and blunt objects like kundale. The formal witness, like doctor and police personnels, proved their documentary evidences.
10. Statement of the accuseds under Section 313 Cr.P.C was recorded. Accused, Babu Lal, denied the causing the alleged offences but admitted that for distribution of the money, which came from the sale of trees of the joint family, he went to the tube-well of accused, Ram Shakal, for complaint. Going to the injured, Bachai, along with Ram Shakal and others accuseds was also admitted but he denied that the registration of the case and submission of chargesheet therein by police is incorrect. He stated that he went to the house of the Bachai and accused, Ram Shakal and other accuseds asked him to distribute the money. Bachai challenged Ram Shakal and attacked him. The accuseds tried to protect Ram Shakal and made complaint in this regard and in order to save themselves the informant has got false case registered against the appellants. The other accuseds also made similar statements.
11. D.W-1, Kedar, was produced in evidence and documentary evidence were also filed by the defense, being death certificate of Bachai Ram proving his death in 1998, copy of kutumbh register of Bachai Ram, copy of FIR(NCR), State vs. Pappu and Others, injury report of Ram Shakal, copy of statement in the case of State vs. Pappu @ Dinesh, copy of statement of Dr. S.S. Singh in the case of State vs. Pappu @ Others.
12. The court below after considering the material on record found that the charges against them stand proved beyond doubt and hence convicted and sentenced the appellant.
13. Counsel for the appellants has submitted that in the incident dated 29.11.1995, three persons, namely, Bachai, Ram Ji and Keshari Devi, are said to have sustained injuries. According to injury report of Bachai, his parietal bone and arm were found fractured, but Dr. A.K. Goswami, who conducted the x-ray and was examined at P.W.-6, stated in his evidence that the injuries were not grievous. The injuries of Ram Ji and Keshari Devi were superficial in nature. The appellant, Ram Shakal, was Gram Pradhan at the time of incident and the accuseds and injureds collected before him to settle their dispute with regard to distribution of money of sale price of the trees. The injureds themselves assaulted the appellant no. 1, Ram Sakal, and he sustained injuries and lodged the F.I.R along with injury report, but his case was not considered. It is further stated that the appellant, Ram Shakal, has been assigned the role of firing, but in this regard neither any evidence was found nor any of the injureds sustained fire arm injury.
14. From the evidence it is quite clear that a dispute with regard to distribution of price of three trees was the bone of contention between Babu Lal on the one side and Ram Ji, Bachai and Keshari Devi on the other side and the appellant no. 1, Ram Shakal, wanted to settle their dispute, but both the parties started quarreling as a result of which incident took place and appellant, Ram Sakal, also sustained the injuries. There is contradiction in the evidence of witnesses, even then the learned Additional Sessions Judge illegally convicted the appellants.
15. Stating that the conviction of appellants are against the evidence on record and the appellants prayed for being given benefit of Sections 3 and 4 of Probation of Offenders Act, 1958, but the learned Additional Sessions Judge, Varanasi, illegally rejected the prayer. This Hon'ble Court granted the benefit of Sections 3 and 4, Probation of Offenders Act, 1958, in Criminal Revision No. 772 of 1987, Subhash Chandra and others vs. State of U.P., vide judgment dated 18.05.2015 and in Criminal Revision No. 1149 of 2004, Chhote Lal and Others vs. State of U.P. vide judgment dated 19.11.2019. The appellants are also entitled for the benefit of Probation of Offenders Act, 1958.
16. Per contra, learned A.G.A. has vehemently opposed the arguments advanced on behalf of the appellants. He has submitted that the trial court has considered the entire material on record before passing the judgment and order of conviction of the appellants. He has submitted that there is no justification for releasing the appellants on probation since the allegation against the appellants are serious. They have caused fractures to one of the injured, Bachai.
17. After hearing the rival contentions this court finds that that during the trial the defence filed 6 documents along with list 69 Kha-
(i) Certified copy of death certificate of injured, Bachi Ram, Kutumb registered of Bachai Ram proving that he has died on 19.05.1995
(ii) Certified copy of non-cognizable report 29 11.1995 lodged bythe Ram Shakal against Pappu @ Dinesh, Ram Jeet, Bachai and Rajendra under Sections 323, 504 IPC at 19 hours.
(iv) Certified copy of injury report of Ram Shakal, appellant no. 1, having three injuries- 1- Abraded contusion 5cm x 2 cm over back of left forearm, lower part. KUO. Adviced x-ray left forearm. 2. Abraded contusion 5cm x 4 cm x dorsam on right foot. 3. contused swelling 2 cm x 3cm on back of left arm. KUO, advised x-ray back of left arm. Caused by blunt object. All the inujries were fresh in duration.
18. It appears that subsequently the offence was investigated on the order of the Magistrate and the offence was found under Sections 323, 504 and 506 IPC and a Case No. 1010 of 1996 was pending before the Additional Chief Judicial Magistrate, Varanasi. The certified copy of order dated 23.02.1996 of the Magistrate directing the police to investigate the offence dated 23.02.1996 was brought on record. Certified copy of the medical examination report of Ram Shakal in S.T. No. 530 1991 was also brought on record.
19. From the perusal of the judgment of the trial court this court finds that the version of defense that the injuries were caused on both the sides was considered by the court below.
20. The trial court has taken into considerations the injuries suffered by Ram Shakal, appellant no. 1 and has recorded the finding that the injuries do not prove that the appellant no. 1 was not the aggressor. The injuries on the other side are much serious and has therefore convicted the appellants and sentenced them. The contention of the counsel for the appellant that the injuries of Ram Shakal and the case lodged by him were not considered by the trial court is not correct. The submission that there is contradiction in the statements of the witness is also not borne out from the evidence on record.
21. The submission of the counsel for the appellants that the case of the appellant should be considered under the Probation of Offenders Act, 1958 merits consideration. Counsel for the appellant has submitted the incident is of year 1995. This appeal is of the year 2003 and the ages of the appellant nos. 1, 2, 3, 4 and 5 are about 61 years, 66 years, 53 years, 50 years and 56 years respectively. The appellants may not be sent to jail again. It is their first implication.
22. Section 4 of the Probation of Offenders Act 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.
23. A similar provision finds place in the Code of Criminal Procedure. There, Section 360 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.
24. 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.
25. 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."
26. In addition to the above judgment of this Court, this court finds that the Hon'ble the 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 accuseds has observed as below:
"The learned counsel appearing for the accused submitted that the accident 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 accident 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."
27. 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.
28. 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 of appellants recorded by the court below under Sections 147, 323/149, 324/149 IPC is upheld and is not required to be disturbed.
29. However, instead of sending the appellants to jail, they shall get the benefit of Section 4 of the Probation of Offenders Act. Consequently, the appellants shall file two sureties to the tune of Rs. 25,000/- coupled with personal bonds to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the court below. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the judgment as per law and Rules.
30. Accordingly, this appeal is partly allowed regarding sentences of the appellants.
31. Let a certified copy of this order along with record be sent to the court concerned for compliance.
Order date: 06.01.2020 Rohit