Allahabad High Court
Ram Kishan Alias Kishan Lal And Another vs State Of U.P. on 21 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 45 Case :- CRIMINAL APPEAL No. - 1599 of 1995 Appellant :- Ram Kishan Alias Kishan Lal And Another Respondent :- State of U.P. Counsel for Appellant :- V.S. Singh,Ajay Sengar Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Singh-I,J.
Heard Sri Ajay Sengar, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.
2. This criminal appeal has been instituted against the judgement and order dated 15.09.1995 passed by Additional Sessions Judge, Lalitpur in Sessions Trial No. 64 of 1993, State of U.P. Vs. Ram Kishan and another, arising out of Case Crime No. 105 of 1909 u/s 308, 323 and 427 I.P.C., P.S.- Mahrauni, District- Lalitpur.
3. By the impugned order, the trial court has convicted the appellants, Ram Kishan and Gore Lal u/s 323 r/w 34 and 427 r/w 34 I.P.C. and sentenced them to one year rigorous imprisonment in both the sections. The trial court also directed that both the sentences shall run concurrently. The State has not filed any appeal against acquittal of the accused from the charge under Section 308 I.P.C. Thus, the judgment and order relating to acquittal of accused under Section 308 I.P.C. has become final.
4. Shorn of unnecessary details, the prosecution case in brief if that on 26.06.1990 at 4 pm near Chhayan Kumhairi Tiraha Road, Police Station Mahraun, the appellants-accused Ram Kishan and Gore Lal stopped the Bus No. U.T.P. 4113 and compelled the driver, conductor and passengers to alight from the bus then the appellants-accused in furtherance of common intention with such knowledge caused injury to Jamuna Prasad passenger of Bus No. U.T.P. 4113 that if his death took place, they would be guilty of culpable homicide not amounting to murder. The appellants-accused also voluntarily caused simple injury to Prem Narayan, the driver of the aforesaid Bus. They also pelted stones on the bus resulting in breaking of its 10 to 12 nos. of window panes causing damage of about Rs. 15000/-.
5. The first information report was lodged on the basis of written report (Ext.Ka.1) of bus driver, Prem Narayan on 26.06.1990 at 18.05 hours as Case Crime No. 105 of 1990 u/s 308, 323, 427 I.P.C. was registered in Police Station- Mahrauni, District- Lalitpur. The chik F.I.R. (Ext.Ka.5) and carbon copy of the G.D. (Ext.Ka.6) is on record.
6. On 26.06.1990 at 6.30 p.m., Dr. Pratap Singh, Medical Officer, Primary Health Centre, Mahrauni, examined Jamuna Prasad and prepared injury report (Ext.Ka.7). Following injuries were found on the person of injured Jamuna Prasad :-
(i) Lacerated wound 5 cm x 1 cm bone deep left side of head obliquely 11 cm above left ear. Fresh blood present.
(ii) Contused swelling 7 cm x 4 cm in front and outside of left forearm 9 cm above wrist joint
(iii) Contusion 15 cm x 2.5 cm left side of back 23 cm below the tip of shoulder.
Injury nos. (ii) and (iii) were simple in nature. They were fresh and caused by blunt object. Injury no. (i) was kept under observation and x-ray was advised.
7. On 26.06.1990 at 6.50 p.m., Dr. Pratap Singh, Medical Officer, Primary Health Centre, Mahrauni, examined Prem Narayan and prepared injury report (Ext.Ka.8). Following injuries were found on the person of injured Prem Narayan :-
(i) Contusion with swelling 15 cm x 4 cm on left side of left shoulder.
(ii) Contusion 8 cm x 2.5 cm on left side of the back 4 cm below injury no.(i).
(iii) Contusion 8 cm x 2.5 cm on right side of back.
All the injuries were simple in nature and caused by hard blunt object.
The formal proof of injury report was admitted by learned counsel for the applicant on which (Exts.Ka.7 and Ka.8) was inscribed.
8. The case was investigated by Investigating Officer PW5 A.S.I. Shiv Shanker Tiwari. He inspected the place of occurrence and on the pointing out of informant Prem Narayan and prepared its site plan (Ext.Ka.3). He arrested the accused persons on 03.07.1990 and interrogated them. He also recorded the statements of the witnesses and after completion of investigation, submitted charge-sheet (Ext.Ka.4) in the court.
9. On 13.08.1993, charge u/s 308 r/w 34, 323 r/w 34 and 427 r/w 34 I.P.C. was framed against accused-appellants, Ram Kishan and Gore Lal. They denied the charges and claimed trial.
10. The prosecution examined informant injured PW1 Prem Narayan, injured PW2 Jamuna Prasad, writer of the written report and owner of bus PW3 Satish Kumar Jain, eye witness and conductor of bus PW4 Kailash Narayan as witnesses of fact whereas Investigating Officer PW5 S.I. Shiv Shanker Tiwari, the then Constable Clerk at Police Station- Mahrauni PW6 Head Constable Karan Singh were examined as formal witnesses.
11. On 01.09.1995, the court recorded the statement u/s 313 Cr.P.C. of accused persons, Ram Kishan and Gore Lal. They denied the prosecution case that on the alleged date, time and place of occurrence, they stopped the Bus No. U.T.P. 4113, assaulted the driver Prem Narayan, conductor Kailash and passenger sitting therein, Jamuna Prasad with lathi, causing them fatal injuries and caused damage worth Rs.15,000/- to the bus by pelting stones and lathi, breaking its 10-12 window panes. They stated that the witnesses were giving false evidence.
12. Accused-appellants did not produce any witness in defence.
13. It has been argued on behalf of accused-appellants that without proper appreciation of evidence, the trial court illegally convicted them of the alleged offence and sentenced them vide impugned judgement and order. It has also been argued that the conviction and sentence is without merit. It has been prayed that the sentence awarded to them be set-aside.
14. Per contra, learned A.G.A. on behalf of the State has submitted that on the basis of oral and documentary evidence, the charge against the accused-appellants, Ram Kishan alias Kishan Lal and Gore Lal, has been proved beyond all reasonable doubt and the trial court has rightly convicted and sentenced the appellants.
15. According to the prosecution case occurrence took place on 26.06.1990 at 4 pm at Kumhairi Tiraha Road. The medical examination of injured Jamuna Prasad and Prem Narayan was done on 26.06.1990 at 6.30 pm and 6.50 pm. From their injury reports Exhibit Ka-7 and Exhibit Ka-8, it is clear that in the opinion of the Medical Officer, the injuries received by both the injured were fresh in nature. Accused have admitted the injury report of injured Jamuna Prasad and Prem Narayan. Therefore, it can be inferred that injured Jamuna Prasad and Prem Narayan may have received the injury on 26.06.1990 at 4 pm at the time of alleged occurrence.
16. P.W.-1 Prem Narayan, who was the driver of Bus No. U.T.P. 4113 has stated in his evidence dated 18.07.1995 that the incident of Mar-peet had taken place about five years ago at 4 pm. At that time, he was the driver of bus No. U.T.P. 4113. He was driving the bus from village Kumhedi to Karitoran. Kailash was the conductor of the bus. He had left Kumhedi village at 3.20 pm. After driving 4-5 km when he reached Chhayan Kumhairi Tiraha, he met accused Ram Kishan and Gore Lal who was present in the Court. They got the bus stopped and asked them to come out of the bus. They stood before the bus. Accused Ram Kishan and Gore Lal had Lathi in their hands. PW-1 Prem Narayan stated that after coming down from the bus he sat on a nearby Pulia. The accused stuck a Lathi on his back. Passenger Jamuna Prasad came there to save him. On receiving the Lathi blow he became unconscious. At that time Kailash, conductor and Komal, cleaner were standing nearby. When he regained consciousness he returned Mahrauni by another bus. He informed the owner of the bus Seth Satish Jain about the incident. He had informed Seth Satish Jain that the passengers had informed him that Ram Kishan and Gore Lal had assaulted him. PW-1 admitted that he is literate and he had signed the report after reading it. The written report was written by Satish Jain. PW-1 stated that according to the opinion given by him, the owner Satish Jain prepared the written report. After reading the report he signed it. PW-1 proves written report Exhibit Ka-1.
17. In his cross examination by the prosecution, PW-1 Prem Narayan stated that after receiving injury he became unconscious and the window panes of the bus was broken by accused Ram Kishan and Gore Lal. Due to breaking of the wind shield, there was damage of about Rs. 8000/- to 9000/-. P.W.-1 further stated in his cross examination that he had informed the I.O. that about 4-5 days earlier to the incident accused Gore Lal and Ram Kishan had quarrelled with him when he asked them to purchase a ticket for journey on the bus. Due to this enmity the accused had committed Marpeet with him. P.W.-1 Prem Narayan stated in his cross examination that he routinely stops the bus at Chhayan bus stop. Quarrel was going on between the villagers of Chhayan village and the persons driving the bus. He admitted that when he alighted from the bus there was no stampede near the bus and the passengers were not running here and there. When he was sitting on the Pulia he received injuries on his back. PW-1 admitted that Satish Kumar Jain had shown him the written report and after reading it he found that it was correct and therefore he signed it.
18. Although PW-1 Prem Narayan has not clearly mentioned in his statement that accused Ram Kishan and Gore Lal beat him but he has stated that accused asked him to stop the bus and alight from the bus. They were carrying Lathi in their hands. He has also stated that when he was sitting on the Pulia, accused persons assaulted with Lathi on his back. From the statement of PW-1 it is clear that he is deliberately avoiding to mention the name of the accused although he has admitted the fact of accused beating him with Lathi on his back. He has admitted that he read the written report and after finding that it is correct he has signed it. Thus, he supports the prosecution case that on 26.06.1990 at 4 pm at Kumhedi Tiraha accused persons stopped the bus. They were having Lathi in their hands and beat P.W.-1 with Lathi on his back. PW-1 has also admitted that he had signed the written report which correctly mentions date, time, place of the occurrence and participation of the accused Ram Kishan and Gore Lal in the incident of beating him and causing damage to the window panes of the bus.
19. The author of the written report, P.W-3 Satish Kumar Jain has stated in his evidence that on his arrival at Mahrauni, driver Prem Narayan informed him that quarrel took place at Chhayan Tiraha. He had mentioned all the facts in the written report as told by the driver Prem Narayan. The written report was read before Prem Narayan and after hearing it he signed it. The written report (Exhibit Ka-1) is in his writing and his signature is affixed therein. P.W.-3 Satish Kumar Jain stated in his cross examination that Prem Narayan had told him the names of the accused persons beating him. PW-3 has emphatically asserted that the written report was written as told by Prem Narayan. Nothing has been found in the cross examination of PW.-3 which may raise doubt about the veracity of his statement.
20. Passenger of bus No. U.T.P. 4113, P.W.-2 Jamuna Prasad deposed in his evidence that when the bus reached Chhayan Tiraha, two accused persons Gore Lal and Ram Kishan came there holding Lathi in their hands. P.W.-2 Jamuna Prasad identified accused Gore Lal and Ram Kishan who were present in the Court. He has stated that these accused persons caused the bus to stop and asked Prem Narayan to alight from the bus. When Prem Narayan alighted and was sitting on the Pulia they started beating him with Lathi. PW-2 stated that when he forbid the accused to beat Prem Narayan, accused assaulted him with Lathi. He received one Lathi blow on his head and one on his back. At that time Kailash and other passengers came there to save them. Accused persons broke the window panes of the bus. PW-2 Jamuna Prasad admitted that accused were earlier not known to him but at the time of incident he came to know about their names. Passengers were mentioning the name of the accused persons. At that time no bus of Jhansi Madanpur was standing there. He returned Mahrauni by another bus. He has no enmity with the accused persons. At Mahrauni bus station Prem Narayan met Satish Jain. From the evidence of PW-2 Jamuna Prasad, it is clear that when he reached there to protect Prem Narayan accused persons beat him with Lathi. The x-ray of the skull of Jamuna Prasad was done on 27.06.1990 in District Hospital Lalitpur but no fracture was found in it and the injury received by Jamuna Prasad was simple in nature. PW.-2 corroborates the prosecution case that accused Ram Kishan and Gore Lal beat him and broke the window panes of the bus.
21. In the cross examination of PW-2 by the defence nothing emerges which may raise doubt about the veracity of his statement. There is nothing found in his cross examination that due to enmity he is falsely implicating the accused persons.
22. The conductor of the bus, PW-4 Kailash has corroborated the evidence of PW-1 Prem Narayan and PW-2 Jamuna that when the bus reached Chhayan Tiraha near the Pulia at 4 pm accused Ram Kishan and Gore Lal stopped the bus and they were having Lathi in their hands. They caused the driver Prem Narayan to alight from the bus and started beating him with Lathi. When Jamuna Prasad reached there to save the driver, the accused persons also beat him with Lathi. The witness has stated in his evidence that in the incident Jamuna Prasad and Prem Narayan had received injuries. After beating Prem Narayan and Jamuna Prasad accused broke the window panes of the bus and ran away from the place of occurrence. PW-4 has stated in his evidence that about 4-5 days earlier there was quarrel between Prem Narayan and the accused persons as the accused persons wanted to travel on the bus without purchasing a ticket. PW-4 Kailash had admitted that at that time a bus was standing at Dhaura Sagar Badavara road but there was no quarrel going on between the villagers of Chhayan and passenger of the bus. These villagers were not beating the persons sitting in the bus. PW-4 has categorically stated that there was no accident due to other bus and no child was killed in the accident. PW-4 has stated in his cross examination that Prem Narayan received Lathi blows on his back but he did not become unconscious due to the injuries. Jamuna Prasad received injury on his hand. Jamuna Prasad also did not become unconscious.
23. From the evidence of PW-4 Kailash, it transpires that 4-5 days earlier to the occurrence, there was quarrel between Prem Narayn and the accused persons as they wanted to travel by bus without purchasing a ticket. On the day of occurrence accused persons stopped the bus and asked the driver Prem Narayan to alight from bus and they beat him with Lathi and when Jamuna Prasad reached to save him, they assaulted him also with Lathi, causing head injury to him. Nothing has emerged in the cross examination of PW-4 Kailash which may raise doubt about veracity of the statement. Thus, the prosecution case is proved by the evidence of injured PW-1 Prem Narayan and PW-2 Jamuna Prasad and eye witness PW-4 Kailash. The oral evidence of PW-1 Prem Narayan, PW-2 Jamuna and PW-4 Kailash is corroborated by the documentary evidence, written report (Exhibit Ka-1), chik FIR (Exhibit Ka-5), injury report of Prem Narayan and Jamuna (Exhibit Ka-8 & Exhibit Ka-7), site plan (Exhibit Ka-3) and charge sheet (Exhibit Ka-4).
24. It has been argued by the learned counsel for the appellant that on the day and time of occurrence, there was a bus accident on the Sagar Madawara Road in which a child of Chhayan village had received injury, therefore, villagers of Chhayan village were beating the conductor and driver of that bus and during that period when Prem Narayn and Jamuna Prasad came there on the bus villagers also started beating them. The argument of learned counsel for the appellant is not supported with evidence available on the record. It is true that PWs Prem Narayan and Kailash has mentioned in their evidence that at some distance from there another bus was standing but they had specifically denied that the villagers were beating the drivers and conductors of the other bus. No suggestion has been made by the defence to PW-1 Prem Narayan and PW-4 Kailash that Prem Narayan and Jamuna Prasad were beaten by the villagers. It is clear from the evidence of the witnesses that there was no stampede near the bus and the passenger were not running here and there, although there was quarrel going on between the persons of bus of the Madanpur and the villagers. The defence had made suggestion to the Investigating Officer, P.W.-5 Shiv Shankar Tiwari that on the day of occurrence a child had received injury due to bus accident. After going through the G.D. of 26.06.1990 he replied that on that day in the GD there is no mention of any bus accident causing injury to a child. The I.O. denied that any report was lodged regarding bus accident of a child.
25. Considering the evidence of the witnesses, specifically the Investigating Officer, PW-5, S.I. Shiv Shankar Tiwari, there is no force in the plea advanced on behalf of the defence that Prem Narayan and Jamuna Prasad received injury due to assault of the villagers.
26. Accused Ram Kishan has stated in his statement under Section 313 Cr.P.C. that he had litigation with PW-4 Kailash, therefore, he has given false evidence against him but no suggestion has been made in the cross examination of PW-4 regarding his litigation with accused Ram Kishan. Apart from this, accused Ram Kishan has not filed any documentary evidence in support of his above statements. Under these facts and circumstances, there is no force in his plea and it is not acceptable.
27. Learned counsel for the appellants has attracted the attention of this Court towards the deposition of the various witnesses and stated that there is contradiction in their deposition. From the perusal of the above mentioned statements, it is found that witnesses have deposed more than five years after the date of occurrence. Therefore, minor contradiction in the statement of the witnesses is natural. It does not demolish their evidence.
28. In Leela Ram (dead) through Dull Chandra vs. State of Haryana and others, (2000) SCC (Crl) 222, the Apex Court has held as under:
"...There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence...
...one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment -- sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their overanxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness...."
Similar law has been propounded by the Apex Court in Krishna Mochi and others vs. State of Bihar, (2002) SCC (Crl.) 1220.
29. Considering the facts and circumstances of the law in the light of the law propounded by the Apex Court, the plea advanced by learned counsel for the appellant is not enable and it is rejected.
30. From the discussion of the above evidence of the case, the Court is of the view that on 26.06.1990 at 4 pm at Chhayan Kumhedi Tiraha in P.S. Mahrauni appellant accused Ram Kishan and Gore Lal stopped the bus No. U.T.P. 4113, asked the driver Prem Narayan to alight from the bus and beat him with Lathi and when passenger Jamuna Prasad came there to save him they beat him also with Lathi. The accused persons broke the wind shield of the bus causing damage of more than Rs. 50/- to the owner of the bus. Thus the prosecution has proved the charge under Sections 323/34 and 427/34 I.P.C. against the appellants-accused beyond reasonable doubt. The accused persons Ram Kishan and Gore Lal has been rightly convicted by the Trial Court under Sections 323/34 and 427/34 I.P.C.
31. The learned counsel for the appellants-accused had alternately pressed that appellants-accused be granted the benefit of probation. It has been argued that since the incident has taken place more than 32 years back on 26.06.1990, the appellants have suffered the expenses and hardships of trial for more than about 5 years and they have undergone the agony and uncertainty of the pending criminal appeal for more than 25 years and apart from this case there is no criminal antecedents against the appellants-accused, they may be treated leniently and instead of sending them to jail they may be released on probation.
32. It has also been submitted that it is obvious from the statement of PW-5 S.I. Shiv Shankar Tiwari that appellant accused were arrested on 03.07.1990 and from the bail bonds available on the trial court's record it is clear that their bail bonds were accepted on 11.07.1990, therefore, during investigation and trial they have remained in custody for eight days. Sending them again to jail after the gap of more than thirty two years shall not be justified.
33. The learned A.G.A. for the State has argued that due to enmity of not letting the appellants-accused travel on the bus without ticket on the day of occurrence, appellants-accused stopped the bus caused the driver to alight from the bus and beat him with Lathi and when Prem Narayan and passenger Jamuna Prasad reached there to save the driver they also beat him and caused damage to the wind shield of the bus. They should be punished severely so that it may be a lesson to those indulged in unlawful activities.
34. Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India.
35. Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts.
"... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature provided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused 'X' vs. State of Maharastra (2019) 7 SCC 1) "12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." (State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300)"
36. It is also notable that "... where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125)
37. Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.
38. Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:
"11....Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation."
"31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay."
"54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision."
39. 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.
40. 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.
41. 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.
42. 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."
43. 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."
44. 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.
45. 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 trial court. The conviction recorded by the court below under Sections 323/34 and 427/34 I.P.C. is upheld and is not required to be disturbed.
46. Considering the facts and circumstances of the present case as well as keeping in view the position of law as mentioned above and considering that the incident had taken place about 32 years back; the incident was occurred in spur of the moment; and considering the provisions of Section 4 & 5 of the Probation of Offenders Act, 1958 it appears justified that the appellants accused Ram Kishan and Gore Lal be released under Section 4 (1) of the Act on probation for a period of one year on furnishing a personal bond of Rs.20,000/- (Rupees twenty thousand) and two sureties each of the like amount. During this period, they shall maintain good conduct and keep peace and on breach of this condition, they shall appear before the Court to receive punishment. It also appears justified that under Section 5 (1) (a) of the Act, each appellant is directed to deposit Rs. 4000/- as costs and compensation within a period of one month from the date of receipt of certified copy of this order as compensation out of which Rs. 2000/- shall be paid to each injured, namely Prem Narayan and Jamuna Prasad and Rs. 2000/- shall be paid to PW-3 Satish Kumar Jain, owner of the bus. In case of death of these injured, their legal representatives shall be entitled to receive their shares of compensation.
47. With aforesaid modification, the criminal appeal is disposed of accordingly.
48. Let a certified copy of this order along with record be sent to the court concerned for compliance. In case, probation bonds is not filed and compensation amount is not deposited by the appellants accused, they will have to undergo the sentence awarded by the trial court.
Order Date :- 21.04.2023 KS/Brijesh Maurya