Allahabad High Court
Fatehjang And Ors. vs State Of U.P. on 8 May, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- CRIMINAL REVISION No. - 64 of 2011 Revisionist :- Fatehjang And Ors. Opposite Party :- State of U.P. Counsel for Revisionist :- Ran Vijai Singh,R B S Rathore Counsel for Opposite Party :- Govt. Advocate Hon'ble Suresh Kumar Gupta,J.
1. Heard learned counsel for the revisionists, learned AGA for the State and perused the material available on record.
2. This criminal revision U/s 397/401 CrPC has been filed against the judgement and order dated 18.2.2011 passed by learned Addtional Sessions Judge, court no. 5, Barabanki in Criminal Appeal No. 64 of 2010 whereby dismissed the said appeal against the judgement and order dated 20.9.2010 passed by the Additional Chief Judicial Magistrate, Court No. 12, Barabanki in criminal case no. 2196 of 2006 whereby convicting the revisionists U/s 323, 427 IPC, Police Station- Mohammadpur Khala, District- Bararbanki and sentencing them U/s 323 IPC for one year imprisonment each and U/s 427 IPC for one year imprisonment with fine of Rs. 1,000/- each and in default of payment of fine, one month additional imprisonment each.
3. The prosecution case, in brief, is that the complainant Sunderlal lodged the N.C.R. with the allegations that the old thatch of his house was blown away by the storm. On 29.6.03, when the complainant was removing the thatch, the accused Fatejung, Tunni, Nankanne and Vikram came and started abusing at around 12.00 noon and scuffle took place between the parties and the accused started beating with sticks and destroyed thatch, cots, chara machine and other household items. On hearing the noise, Ramdin and Shankar of the village came and intercepted, but the accused persons beaten Ramdin as well. On this allegation, the N.C.R. bearing No. 134/2003 was registered U/s 323,504,427 IPC against the revisionists. Thereafter, the complainant Sunderlal moved an application U/s 155 (2) CrPC and the trial court directed the investigating officer to investigate the matter.
4. After completion of the investigation, chargesheet U/s 323,504,427 IPC against the accused-revisionists was submitted before the magistrate. The statement of the accused-revisionists was recorded before the trial court in which they denied all the allegations levelled against them and claimed to be tried.
5. In order to prove its case, following witnesses were examined by the prosecution:
(i) PW-1, Sunderlal who is the complainant and he fully supported the version of the prosecution.
(ii) PW-2 Ramdin, who is the injured as well as eyewitness. He also supported the version of the prosecution.
(iii) PW-3 Dr. Vimal Rai Arya who medically examined the injured Sunderlal and Ramdeen on 30.6.2003. As per injury report prepared by the doctor, the injured Sunderlal got ten injuries and the injured Ramdin got three injuries and all the injuries were simple in nature caused by hard and blunt object. He proved the injury report of the injured Sunderlal and Ramdeen as Ex-ka-3 and Ex-ka-4.
(iv) PW-4, Ramshankar who is another eyewitness.
(v) PW-5, Shankar Sharan Yadav who was the investigating officer of the case. He proved the site plan, chargesheet and GD as Ex-ka-5 to Ex-ka-7, respectively.
6. Thus, the prosecution relied on the oral evidence of PW-1 to PW-5 as well as the documentary evidence of Ex-ka-1 to Ex-ka-7.
7. After completion of the prosecution witnesses, statement of the revisionists was recorded U/s 313 CrPC in which they stated that they have been falsely implicated in the case due to enmity.
8. Learned trial court after appreciating the evidence available on record convicted and sentenced the revisionists vide order dated 20.9.2010 as stated above.
9. Being aggrieved with the conviction and sentence order dated 20.9.2010 passed by the trial court, the revisionists approached before the appellate court by means of appeal. The appellate court dismissed the appeal and confirmed the conviction order of the trial court vide order dated 18.2.2011. Being aggrieved with the order of the trial court as well as the appellate court, this revision has been preferred by the revisionists.
10. Learned counsel for the revisionists submitted that only on the basis of simple injuries caused by hard and blunt object, the trial court as well as the appellate court convicted and sentenced the revisionists. Thus, the judgement of the trial court is based on conjecture and surmises. The trial court and the appellate court failed to appreciate the evidence properly.
11. Lastly, learned counsel for the revisionists 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. It is further submitted that the matter pertains to year 2003 and as such 20 years have already elapsed. Thus, no useful purpose would be served to again sending them to jail for remaining part of sentence. It is also submitted that presently the revisionists side as well as informant side are well rooted in society. Thus, the benefit of probation may be given to the revisionists.
12. Learned AGA appearing for the State supported the judgement of the trial court as well as the appellate court and submitted that there is no illegality, irregularity or perversity in the order passed by the trial court as well as the appellate court. Thus the revision has no force and is liable to be dismissed.
13. Since learned counsel for the revisionists 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.
14. 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?
15. 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."
16. It is undisputed fact that the matter pertains to year 2003 and about 20 years have already elapsed. So in my considered opinion no useful purpose shall be served to again send the revisionists to jail for remaining part of sentence and considering the entire facts and circumstances, benefit of probation be extended to the revisionits.
17. In view of the aforesaid judgments of the Hon'ble Supreme Court, I am of the view that the revisionists are entitled to get the benefit of Section 4 of Probation of Offenders Act 1958 and should be provided to them.
18. In the present revision fine of Rs. 1,000/- each has been imposed by the trial court on the revisionists. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry.
19. Since the injured Sunderlal and Ramdin got several injuries but the fine as compensation awarded by the trial court to the injured is inadequate. So in the interest of justice, considering the provisions of Section 357 Cr.P.C., the total fine of Rs. 1,000/- each is enhanced to Rs. 6,000/- each (total Rs. Twenty Four Thousand), out of which Rs. 10,000/- each (total Rs. Twenty Thousand) shall be payable to the injured persons namely Sunderlal and Ramdin and remaining Rs. 4,000/- shall be deposited by the revisionists in the State Exchequer. In case of death of the said injured persons, the same shall be payable to their legal heirs, failing to deposit the same, the revisionists shall surrender or they be taken into custody to serve out the remaining part of the sentence. One month time from the date of their actual release is granted to the revisionists to deposit the said amount before the trial court.
20. Thus, the revision is dismissed on the point of conviction and partly allowed on the point of sentence.
21. It is hereby directed to be released the revisionists- Fatehjang, Vikram, Tunni and Nankanne on probation under section 4 of the U.P. First Offenders' Probation Act with stipulated condition that they will keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs. 30,000/- each before the trial court. The revisionists need not surrender.
22. Office is directed to communicate this order to the trial court concerned for necessary compliance. The trial court record, if any, be also sent back.
Order Date :- 28.4.2023 Shravan