Allahabad High Court
Rajesh And Another vs The State Of U.P. on 15 December, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 31
Case :- CRIMINAL APPEAL No. - 2079 of 2003
Appellant :- Rajesh And Another
Respondent :- The State Of U.P.
Counsel for Appellant :- Sunil Kumar Singh,Balak Ram Verma,Vishal Kumar Yadav
Counsel for Respondent :- Govt.Advocate
and
Case :- CRIMINAL APPEAL No. - 1995 of 2003
Appellant :- Lalitesh
Respondent :- State of U.P.
Counsel for Appellant :- Sunil Kumar Singh,Anjani Kumar Srivastava
Counsel for Respondent :- Govt.Advocate
Hon'ble Virendra Kumar Srivastava,J.
1. Supplementary affidavit filed by learned counsel for the appellant, is taken on record.
2. Both the Criminal appeals have been preferred U/s 374 (2) of Code of Criminal Procedure (hereinafter referred as 'Code') against the judgment and order dated 27.11.2003 passed by Additional Sessions Judge, Court No. 6, Sitapur in S.T. No. 978 of 1998 (Rajesh and others vs. State of U.P.) arising out of Case Crime No. 132 of 1998 whereby the appellant Lalitesh of Criminal Appeal No. 1995 of 2003 and appellants Rajesh and Ram Pratap (since deceased) of Criminal Appeal No. 2079 of 2003 have been convicted for one year rigorous imprisonment and fine of Rs. 1,000/-, for offence U/s 323/34 I.P.C. and for 3 years rigorous imprisonment and fine of Rs. 2,000/- for offence U/s 324/34 I.P.C. All the sentences are directed to run concurrently.
3. Since both the appeals have been filed against the same judgment and order passed by same court. Both these appeals have been heard together and are being decided by a common judgment.
4. Appellant Ram Pratap of Criminal Appeal No. 2079 of 2003 died during pendency of this appeal and appeal filed by him has been dismissed as abated by this Court vide order dated 26.11.2020.
5. The prosecution case, in brief, is that the informant Omkarnath (PW-1) had lodged the first information report dated 27.9.1998 alleging that one Ram Gulam, uncle of informant Ram Pratap was murdered 7-8 years ago, wherein, the informant Omkarnath (PW-1) was named as an accused due to which the appellant Ram Pratap and others were inimical with him. It is further alleged in first information report (Ex.Ka.1), that on 26.9.1998, he was sleeping at the roof, while his brother Praveen and father were sleeping in the courtyard. Meanwhile, at about 12:00 a.m. in the night, appellant Ram Pratap (since deceased) and Rajesh carrying gun, whereas, appellant Lalitesh carrying rod, came at the house of informant (PW-1) and started to beat Praveen by rod. It is further alleged that when the informant saw the said occurrence, in the light of torch, the appellants Ram Pratap, with intention to cause death of informant, fired at him but he (informant) did not receive any injury, whereas, appellant Rajesh fired at his (informant's) father, whereby pellet injury was caused to him.
6. On the said report, a criminal case under Section 307 I.P.C. was lodged against the appellants. Injured Praveen Chand (PW3) and injured Bharat Prasad (PW-2) were sent for medico legal examination and after the investigation, the charge sheet was submitted against the appellant under Section 307 I.P.C.
7. After conclusion of trial, appellants were acquitted for charge of offence U/s 307 I.P.C but convicted under Section 323 r/w 34 I.P.C. and for the offence U/s 324 r/w 34 I.P.C. and sentenced as above.
8. Learned counsel for the appellant submits that though the appellants are innocent and has been falsely implicated in this case but he is not pressing this appeal on the merit of the case. Learned counsel further submits that the appellant Rajesh and Ram Pratap were real brothers whereas, appellant Lalitesh was friend of appellant Rajesh. Learned counsel further submits that at the time of occurrence, the appellant Rajesh and Ram Pratap were young person. Learned counsel further submits that the said occurrence was happened in the year 1998 and the maximum sentence has been provided against the appellants is of only three years imprisonment but the trial Court has not given them the benefit of Probation of Offenders Act (hereinafter referred to as 'Act'). Learned counsel further submits that the appellants are law abiding person having no criminal antecedents. Learned counsel further submits that none of the offence for which the appellants have been convicted is punishable for life imprisonment. Hence, the appellants are entitled for benefit of Act.
9. In this regard, Section 4 of the Act is relevant. This provision deals with the powers of Court to release certain offenders on probation of good conduct which is 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."
10. Thus the philosophy of the Probation of Offender Act 1958 is reformative. Hon'ble Supreme Court in Ratan Lal v. State of Punjab AIR 1965 S.C. 444, while discussing the purpose and object of the Act, has observed in para no. 4, as follows:-
"4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act."
11. Hon'ble Supreme Court in Ved Prakash Vs. State of Haryana, AIR 1981, SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with section 4 of Probation of Offenders Act,1958 has held as under:-
"The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act."
12. It is well settled principle of law that provision of law of Probation of Offenders Act, 1958 is beneficial legislation which has been made by legislature for reformation of accused who is first offender and has not been convicted for serious offences.
13. In section 4 of the Act, it has been clearly provided that if the offence is not punishable with death or imprisonment for life and in view of the facts and circumstances of the case as well as nature of offence and character of offender, it is expedient to release the accused on probation of good conduct, the Court, instead of sentencing him for the punishment, may provide the benefit of this Section and release him on bond, with or without surety, not exceeding three years.
14. Coming again to the facts and circumstances of this case, the said occurrence was happened in 1998 i.e. 22 years ago during the midnight and the appellants Ram Pratap (since deceased) and appellant Rajesh are real brother whereas appellant Lalitesh is their friend. They were young person at the time of occurrence and according to their counsels, they have no criminal history.
15. Considering the facts and circumstances of this case, I am of the view that the benefit of the Act shall be provided to the appellants Rajesh and Lalitesh.
16. Thus, both the appeals i.e. Criminal Appeal No. 2079 of 2003 and Criminal Appeal No. 1995 of 2003 are partly allowed. The judgment and order dated 27.11.2003, passed by the trial court in S.T. No. 978 of 1998, P.S. Rampur Mathura, District Sitapur, so far as it relates with the conviction of the appellants, is hereby confirmed but the sentence is modified. In view of the nature of injury, the fine imposed by the trial Court for the offence U/s 324 I.P.C is enhanced to 10,000 each but instead of sending, the accused-appellants Rajesh in Criminal Appeal No. 2079 of 2003 and appellant Lalitesh in Criminal Appeal No. 1995 of 2003, to jail, they are given benefit of Section 4 of the Act. They are directed to file two surety bonds of Rs. 20,000/- each and personal bonds of same amount to the effect, that they shall maintain peace and good behaviour and shall not commit any offence during the period of two years. The bonds aforesaid be filed by him within two months from the date of judgment before District Probation Officer, Sitapur.
17. A copy of this judgment along with lower court record be sent to the District Judge, Sitapur with immediate effect for compliance.
Order Date :- 15.12.2020 saurabh