Allahabad High Court
Khaleel And (4) Ors. vs State Of U.P. on 26 November, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 31 Case :- CRIMINAL APPEAL No. - 1658 of 2002 Appellant :- Khaleel And (4) Ors. Respondent :- State of U.P. Counsel for Appellant :- Brijesh Kumarr Srivastava,Farooq Ayoob Counsel for Respondent :- Govt.Advocate,Shrawan Kumar Hon'ble Virendra Kumar Srivastava,J.
1. This appeal has been filed against the judgment and order dated 11.11.2002 passed by VIIIth Additional District & Sessions Judge, Faizabad in Sessions Trial No.736 of 1995 (State vs. Khaleel and others) arising out of Case Crime No.171 of 1994, P.S.-Kotwali Akbarpur, District-Ambedkar Nagar, whereby the appellants-Khaleel, Sarif, Subrati, Yaseen and Yusuf (hereinafter referred to as 'appellants') have been convicted and sentenced for six months rigorous imprisonment and fine of Rs.500/- each for offence under Section 147 I.P.C., for three years rigorous imprisonment and fine of Rs.2000/- each for offence under Section 452 I.P.C., for two years rigorous imprisonment and fine of Rs.1000/- for offence under Section 324 read with Section 149 I.P.C. and for six months rigorous imprisonment and fine of Rs.500/- each for offence under Section 506 I.P.C. It has been further directed that the appellants will have to undergo one month's rigorous imprisonment in default of payment of fine for offence under Section 147 I.P.C., six months rigorous imprisonment in default of payment of fine for offence under Section 452 I.P.C., three months rigorous imprisonment in default of payment of fine for offence under Section 324 read with 149 I.P.C. and one month's rigorous imprisonment in default of payment of fine for offence under Section 506 I.P.C. All sentences have been directed to run concurrently.
2. The prosecution case, in brief, is that on 04.06.1994 at about 11:00 a.m., the first information report (Ext.-Ka-1) was lodged by Badaruddoja (P.W.-1) P.S.-Kotwali Akbarpur, District-Faizabad alleging that the appellants, due to previous enmity of civil disputes, entered in his house on 03.06.1994 at about 10:00 p.m., asked his grandfather-Hazi Abdulla, who was sleeping in the courtyard, his (P.W.-1) whereabouts, saying that they would kill him. It is further mentioned in the said F.I.R. by the informant (P.W.-1) that when his grandfather did not tell his whereabouts, some appellants beat his grandfather by fits and kicks and the appellant-Khaleel attacked his grandfather by knife. It is further stated that his sister-Mehru Nisha reached there and saved his grandfather, his brother who was taking dinner on the roof of his house, had also seen the occurrence and raised alarm thereupon his neighbour-Mukhtar, son of Hasrad and Sannu reached there and saw in the light of electric bulb that the appellants were fleeing away. It is further stated that his grandfather's condition was very critical and he was carried to hospital from where he was referred to Faizabad and after getting him admitted in hospital, he had filed the information (Ext.-Ka-1).
3. On the basis of the said information, a Case Crime No.171 of 1994 under Sections-147, 148, 307, 452, 323, 506 I.P.C. was registered against the appellants and investigation was handed over to S.I.-Gopal Swaroop Bajpayee (P.W.-3), who after investigation, filed charge sheet against the appellants under Sections-147, 452, 307/149 and 506 I.P.C. before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Cr.P.C., committed the case to the Court of Sessions, Faizabad for trial.
4. The learned trial Court after hearing the counsel for both the parties, framed the charges for the offence under Sections- 147, 452, 307/149 and 506 I.P.C. to which they denied the charges and claimed for trial.
5. The prosecution in order to prove its case, examined Badaruddoja (P.W.-1), Mukhtar (P.W.-2), Gopal Swaroop Bajpai (P.W.-3) (Investigating Officer) and Dr. P. K. Saxena (P.W.-4) wherein Badardaza (P.W.-1) and Mukhtar (P.W.-2) are witnesses of facts and rest witnesses are formal witnesses.
6. The prosecution has neither examined the brother of Badaruddoja (P.W.1) nor the Mahrur Nisha, who tried to intervene and save the injured and also not produced the sole injured-Ibadulla.
7. Dr. P. K. Saxena (P.W.-4) had stated that on 03.06.1994 at about 10:40 p.m. He had examined Ibadulla, who aged about 80 years and found the following injuries on his body :
(a) One incised wound 1.5 cm x .5 cm, depth not measured left back left scapular region just below lower margin of scapula surgical emphysema present crepts around wound. X-ray advised.
(b) incised wound 1.5 cm x .5 cm, depth not measured bleeding present, 1 cm below injury no.1 yet back surgical emphysema present.
(c) Contusion 3x1 cm below injury no.2 colour red.
According to him, injuries were caused by sharp edged weapon.
8. The learned trial Court after conclusion of trial, convicted and sentenced the appellants as above by the impugned judgment. Aggrieved by the said judgment, the appellants have preferred this appeal.
9. Heard Sri Farooq Ayoob, learned counsel for the appellants and Sri Manoj Singh, learned A.G.A. for State.
10. Learned counsel for the appellants submits that though the appellants are innocent but they are not pressing this case on merit of the conviction. Learned counsel further submits that all appellants are family members. The appellant-Sharif is son of the appellant-Khaleel whereas the rest appellants are cousin brothers. Learned counsel further submits that only one person Ibadulla was injured but he was not produced by the prosecution during trial. Learned counsel further submits that according to prosecution, four injuries including two incised wounds were found on the person of the said injured but five accused persons have been falsely implicated. Learned counsel further submits that the appellants have been convicted only for the offence under Sections-147, 452, 324 read with 149 I.P.C. and Section 506 I.P.C. wherein maximum sentence has been awarded to them for three years rigorous imprisonment but trial Court had not given benefit of Probation of Offenders Act. Learned counsel further submits that such incident was happened in the year 1994 i.e. 26 years ago, and all appellants are more than 50 years at present. Learned counsel further submits that the appellants may be granted benefit of Probation of Offenders Act, 1958.
11. Learned A.G.A. submits that there is no illegality or infirmity in the impugned judgment but did not dispute the factual submission made by learned counsel for the appellants. Learned A.G.A. further submits that in view of the gravity of the offence, the appellants are not entitled for the benefit of Probation of Offenders Act, 1958.
12. Since the learned counsel for the appellants has not challenged the impugned judgment and order on merit of conviction and has submitted only for the sentence for providing the benefit of Probation of Offenders Act, therefore, it has to be seen whether the appellants are entitled for benefit of Probation of Offenders Act, 1958 or not.
13. Section 4 of the Probation of Offenders Act, 1958 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."
14. 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."
15. 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."
16. In this case, the appellants have been convicted by the trial Court only for offence under Sections-452, 147, 324 read with 149 and 506 I.P.C. and have been sentenced for maximum punishment of three years each. None of the said offences for which the appellants have been convicted is punishable with life imprisonment. The prosecution has not produced any evidence that they were previously convicted.
17. Admittedly, the said occurrence was happened twenty six years ago i.e. in 1994. The statement of the appellants under Section 313 of Cr.P.C. were recorded on 12.08.2002 wherein the age of the appellant-Yaseen was recorded as 40 years, the age of the appellant-Subrati was recorded as 32 years, the age of the appellant-Yusuf was recorded as 47 years, the age of the appellant-Khaleel was recorded as 45 years and the age of the appellant-Sarif was recorded as 45 years. It means that all the appellants at the time of occurrence, were young person but at present, they are more than fifty years.
18. In addition to above, the appellants are related to each other as family members of the appellant-Sarif is son of the appellant-Khaleel whereas the rest appellants-Yusuf, Subtrati and Yaseen are real brothers i.e. son of Fazlu and they are cousin brothers of the appellant-Sarif. Thus, all the appellants are related to each other as family members.
19. 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 as well as young person at the time of occurrence.
20. Considering the facts and circumstances of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the appellants.
21. Thus, the appeal is partly allowed. The judgment and order dated 11.11.2002 passed by VIIIth Additional Sessions Judge, Faizabad in Sessions Trial No.736 of 1995 (State vs. Khaleel and others) arising out of Case Crime No.171 of 1994, Police Station-Kotwali Akbarpur, District-Ambedkar Nagar so far it relates with the conviction of the appellants is maintained, but the sentence is modified. They shall deposit the fine imposed upon them, but instead of sending the appellants to jail, they are given benefit of Section 4 of the Probation of Offenders Act, 1958. They are directed to file two sureties bonds of Rs.20,000/- and personal bond 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 aforesaid bonds be filed by them within two months before District Probation Officer, Faizabad.
22. Copy of this judgment along with lower Court record be sent to the District Judge, Faizabad with immediate effect for compliance.
Order Date :- 26.11.2020 Mahesh