Allahabad High Court
Rati Pal Pasi vs State Of U.P. on 19 April, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 16.03.2023 Delivered on: 19.04.2023 Court No. - 13 Case :- CRIMINAL APPEAL No. - 133 of 2006 Appellant :- Rati Pal Pasi Respondent :- State of U.P. Counsel for Appellant :- Md. Shamshad Khan Counsel for Respondent :- Govt. Advocate Hon'ble Suresh Kumar Gupta,J.
1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 19.1.2006 passed by Additional Sessions Judge/F.T.C. Vth, Sultanpur in Sessions Trial No. 13 of 2004 arising out of Case Crime No. 389 of 2003, U/s 323,302,504 IPC relating to Police Station- Kamrauli, District- Sultanpur, convicting and sentencing the appellant for the offence under Section- 304 (Part II) of I.P.C. for five years rigorous imprisonment; under Section 323 IPC for three months rigorous imprisonment; and under Section 504 IPC for six months rigorous imprisonment.
2. The prosecution, in brief, is that on 2.11.2003 at around 08.22 pm, the complainant gave oral information with the allegations that his daughter Smt. Babli was married to the son of the accused Rati Pal. When the accused Rati Pal arrived at the house of the complainant for Bidai of Smt. Babli, the altercation started. Due to this, the accused Rati Pal started hurling abuses and beat the complainant Ujagar and his daughter Smt. Babli by means of danda, as a result of which they got injury. On the basis of oral information, the N.C.R. bearing No. 11/2003 was lodged on 2.11.2003 U/s 323,504 IPC and majroobi letter was prepared in police station and the injured Ujagar and Babli were sent to the Community Health Centre, Jagdishpur for medical examination. Due to seriousness of injury, the injured Ujagar was referred for Lucknow Medical College for further treatment. When the complainant could not be admitted in medical college, then he was admitted in Nishat Hospital, Lalbagh, Lucknow where he had undergone treatment for six days. Thereafter he was discharged but he succumbed to death on the way to his house. Then a written information regarding death of the deceased Ujagar was given by his brother namely, Jagai at PS- Kamrauli. Thus, the aforesaid NCR was converted as case crime No. 389 of 2003, U/s 323,504,304 IPC.
3. Investigation of the case was entrusted to the investigating officer. During course of investigation, the inquest report of the deceased as well as papers relating to the dead body was prepared. Thereafter the dead body of Ujagar was sent for post mortem. The post mortem of the deceased was conducted by Dr. Vijay Bahadur Singh on 12.11.2003.
4. The investigating officer after completing the entire investigation of the case submitted the charge-sheet against the accused-appellant on 23.11.2003. The case was committed to the court of sessions where it was registered as Sessions Trial No. 13 of 2004 and it was transferred to Additional Sessions Judge for trial.
5. The charges were framed against the accused-appellant U/s 323,302,504 IPC on 5.2.2004 and the same was read over the appellant in Hindi, but he denied the charges levelled against him and claimed to be tried.
6. In order to prove its case, the prosecution examined the following witnesses:
(i) P.W.-1, Smt. Babli who is the daughter of the deceased Ujagar. She stated that her marriage was solemnized with Sarju Prasad who is the son of the accused-appellant. At the time of incident, she was present in her parental house. On the alleged date of incident, her mother in law arrived at her parental house for bringing her. But her deceased father refused for Bidai and due to this altercation took place between them. Thereafter, the mother in law and father in law (appellant) of Smt. Babli armed with lathi and danda beat her, her deceased father Ujagar and her uncle Jagai. Due to this incident, she and her father Ujagar have got injury and her deceased father lodged the NCR. This incident happened at the door of her parental house. The deceased was referred for medical examination to Community Health Centre, Jagdishpur. Later on, the deceased was referred to Lucknow where the deceased died. Thus she fully supported the version of the prosecution. In her cross examination, she stated that at the time of incident, it was dark night. So she could not identify any person who inflicted injury to her father and as such, she was declared hostile.
(ii) P.W. 2, Dev Narayan Yadav, Constable who is the formal witness. He proved the N.C.R. as Ex-ka-1.
(iii) PW. 3, Jagai who is the brother of the deceased. He proved the written report as Ex-ka-2, by means of which he informed the police regarding the death of his deceased brother Ujagar. He deposed that at the time of incident, he was not present on the spot. So he did not support the prosecution version and was declared hostile.
(iv) P.W. 4, Guru Prasad who is the eye-witness. But he did not support the prosecution version and was declared hostile.
(v) P.W. 5, Dr. Vijay Bahadur Singh, who conducted the post mortem of the dead body of Ujagar (deceased) on 12.11.2003 at 3.30 pm and he proved the post mortem report as Ex-ka-3. The Doctor found following ante mortem injuries on the dead body of the deceased:-
"(1) Stick wound 4x1 cm present on left side of the head 11cm above left ear.
(2) Bed sore 4cm x4 cm on the right scapular."
Internal Examination :-
Left temporal parietal was fractured due to ante mortem injury. Membrane was congested. Clotting of blood was found in brain. The doctor opined that cause of death was shock and haemorrhage due to ante mortem injury.
(vi) PW-6, Dr. Mahendra Kumar Tripathi has proved the injury report of Smt. Babli and Ujagar (deceased) as Ex-ka-4 and Ex-ka-5, respectively. The deceased Ujagar was medically examined on 2.11.2003 at 9.15 pm and following injury was found on his body:
"A contusion lacerated would measuring 6 cm x 0.8 cm over left parietal and 10 cm above left ear. The injury was simple in nature caused by hard and blunt object."
The doctor also examined the injured Smt. Babli on 2.11.2003 at 9.30 pm and following injury was found on her body:
"A contusion lacerated wound measuring 3 cm x 0.5 cm at left parietal region 10 cm above mastoid process. The injury was simple in nature caused by hard and blunt object."
(vii) PW-7, R.B. Gautam, Sub-Inspector who conducted the investigation of this case and proved the inquest report, papers relating to death body of the deceased, certified copy of NCR, site plan, recovery memo of bloodstained plain soil, FSL report and chargesheet as Ex-ka-7 to Ex-ka-18, respectively. He further proved the blood stained lathi as material Exb.-1.
7. Thus, the prosecution relied on the oral evidence of PW-1 to PW-7, as the documentary evidence of Ex-ka-1 to Ex-ka-18 and as material evidence of Exb. 1.
8. After conclusion of the prosecution evidence, statement of the accused-appellant was recorded U/s 313 CrPC in which he stated that he has been falsely implicated in the case. He further stated that false recovery of alleged lathi was shown against him by the investigating officer. Thus he denied the entire prosecution case. The accused-appellant further stated that he wants to produce the witness in his defence.
9. In his defence, D.W. 1 Sri Ram was examined. He stated on oath that the deceased was drunkard and due to this he fell on earth and had got injuries. Thus, nobody inflicted injury to him.
10. Learned trial court after appreciating the entire evidence oral as well as documentary found the accused-appellant guilty and convicted and sentenced him as stated above.
11. Being aggrieved and dissatisfied with the judgement and order dated 19.1.2006 passed by the trial court, the appellant has preferred this appeal.
12. I have heard Md. Shamshad Khan, learned counsel for the appellant, learned AGA appearing for the State and perused the material available on record.
13. Learned counsel for the appellant assailing the impugned judgement and order dated 19.1.2006 submitted that the accused-appellant is the Samdhi of the deceased and due to heat of passion, this incident occurred. The appellant is 61 years old aged person. The PW-1 Smt. Babli resides in same house and all the disputes have already been settled, if the prosecution story is admitted in toto. Thus, the fact is clear that the incident occurred due to sudden heat of passion on the spur of the moment. It is further submitted that if the prosecution case is admitted as such only allegation for inflicting injury with single blow of lathi on the deceased was alleged against the appellant. Exception No. 4 of section 300 IPC states that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a said quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner.
14. It is further submitted by the learned counsel for the appellant that the trial court sentenced the appellant for 5 years rigorous imprisonment. But in the instant case, sudden fight occurred between the appellant and the first informant's side and there was no premeditation that due to blow of such nature would result in death. This fact is clearly established that there was no intention or premeditation of the appellant to commit death of the deceased who was the real Samdhi of the appellant. It is further submitted that the matter pertains to year 2003 and about 20 years have already elapsed. During investigation, trial and appeal, total period of incarceration of appellant is 112 days. Thus, no useful purpose would be served to again sending him to jail for remaining part of sentence. It is also submitted that presently the appellant side as well as informant side are well rooted in society. The age of the appellant is about 61 years. Thus, the benefit of probation may be given to the appellant.
15. Lastly, learned counsel for the appellant submitted that there are sufficient reasons to challenge the judgement on merit, as there are non consideration of Section 4 of Prevention of Offender Act, 1958, therefore, he seeks leniency of the Court.
16. Learned A.G.A. vehemently opposed and submitted before the Court that the prosecution has fully proved the charges against the appellant beyond reasonable doubt. Therefore, learned trial court after appreciating the evidence available on record rightly convicted the appellant.
17. Considering the entire evidence led by the prosecution, I am of the view that since the deceased died of single blow with lathi but there was no premeditation or meeting of mind of the appellant to commit murder of the deceased.
18. In view of the aforesaid facts and circumstances of the case, I am of the view that the the appellant case comes within the purview of exception 4 of Section 300 IPC. Thus, I find that the appellant is guilty of offence of culpable homicide not amounting to murder.
19. The Hon'ble Apex Court in the case of State of Karnataka vs. Muddappa [(1999) 5 SCC 732] had considered the question as to whether the benefit of Probation of Offenders Act could be extended to an offence under Section 304 Part-II of the IPC and concluded that there is no statutory bar for application of Probation of Offenders Act to an offence under Section 304 Part II, where the maximum punishment is neither death nor imprisonment for life. The same view has been taken by the Hon'ble Supreme Court in the case of Mohd. Monir Alam vs. State of Bihar [(2010) 12 SCC 26], wherein their Lordships had given the benefit of Section 4 of Probation of Offenders Act to the appellant and directed the trial court to release the appellant under Section 4 of Probation of Offenders Act.
20. Since learned counsel for the appellant restricted his arguments to grant probation, therefore, in these circumstances, It would be appropriate to quote Sections 360 Cr.P.C. and 361 Cr.PC. read as follows:-
Section 360 Cr.P.C. reads as follows:
"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 subsection 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 recognisance, 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 warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and 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 1951), 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."
Section 361 Cr.P.C. reads as under:-
361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-
(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or
(b) a youthful offender under 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, but has not done so, it shall record in its judgment the special reasons for not having done so.
Sections 3, 4 and 5 of the Probation of First Offenders Act read as under:-
Section 3- Power of court to release certain offenders after admonition.
When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.
Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
Section 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.
Section 5-Power of court to require released offenders to pay compensation and costs.
(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay--
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under sub-section(1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.
21. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?
22. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:
"While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."
23. It is undisputed fact that the matter pertains to year 2003 and about 20 years have already elapsed. During investigation, trial and appeal, total period of incarceration of appellant is 112 days. The appellant was convicted under Section 304 Part-II. In section 304 Part-II of IPC, the maximum sentence provided is 10 years but no minimum sentence is provided therein. So in my considered opinion after taking the view of incarceration period of the appellant no useful purpose shall be served to again send the appellant to jail for remaining part of sentence and considering the entire facts and circumstances, benefit of probation be extended to the appellant.
24. In view of the aforesaid judgments of the Hon'ble Supreme Court, I am of the view that the appellant- Rati Pal Pasi is entitled to get the benefit of Section 4 of Probation of Offenders Act 1958 should be provided to the appellant.
25. Thus, the appeal is confirmed on the point of conviction and partly allowed on the point of sentence.
26. It is hereby directed to be released the appellant on probation under section 4 of the U.P. First Offenders' Probation Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs. 30,000/- before the trial court. The appellant need not surrender.
27. Office is directed to communicate this order to the trial court concerned for necessary compliance. The trial court record be sent back.
Order Date :- 19.4.2023 Shravan