Allahabad High Court
Ravindra Singh And Another vs State Of U.P. on 26 April, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- CRIMINAL APPEAL No. - 1978 of 2003 Appellant :- Ravindra Singh And Another Respondent :- State of U.P. Counsel for Appellant :- Abdul Rafey Siddiqui,Santosh Kumar Srivastava 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 20.11.2003 passed by Additional District & Sessions Judge/F.T.C.-III, Faizabad in Sessions Trial No. 735 of 1995 and S.T. No. 527 of 1998 arising out of Case Crime Nos. 147 of 1993 relating to Police Station- Jahangirganj, District- Faizabad, convicting and sentencing the appellants for the offence under Section- 324/34 I.P.C. for two years rigorous imprisonment with fine of Rs. 2,000/- each and in default of payment of fine one month additional simple imprisonment.
2. During pendency of the appeal, the appellant no.2 Subhash Singh had died, as such, the appeal was abated qua him vide order dated 21.11.2022. Only the appellant no.1 Ravindra Singh is surviving.
3. The prosecution, in brief, is that on 27.10.1993 at around 5 pm, the son of the complainant namely, Rajesh Singh went to his garden to extract Moonj, then the accused Siyaram, Ravindra and Rudra Pratap Singh and Subhash Singh hurled abuses. The complainant was present near the garden and with intention to commit the murder, the accused Ravindra Singh opened fire which hit to Jagdish Singh and another accused Subhash opened fire which hit to Rajesh Singh. Due to this, Jagdish Singh and Subhash Singh got gunshot injury. This incident was witnessed by the Rajit Ram and Ram Lagan. On the basis of written report, the FIR was lodged against the accused persons on 27.3.1993 at 6.20 pm U/s 307 IPC at PS- Jahangirganj, Faizabad.
4. The investigating officer after completing the entire investigation of the case submitted the charge-sheet against the accused-appellants before the Judicial Magistrate IIIrd, Faizabad. The case was committed to the court of sessions where it was transferred to Additional Sessions Judge for trial.
5. The charges were framed against the accused Siyaram Singh, Rudra Pratap Singh, Ravindra Singh U/s 307/34 IPC and co-accused Subhash Singh U/s 307,504,506 IPC and the same was read over the accused appellants and other co-accused in Hindi, but they denied the charges levelled against them and claimed to be tried.
6. In order to prove its case, the prosecution examined the following witnesses:
(i) P.W.-1, Complainant, Suresh Singh who stated that on 27.10.1993 at around 5 pm, his son was present in the garden to extract Moonj. He was also present near the place of occurrence and busy in grazing buffaloes. One Jagdish Singh was ploughing near his field. When the accused persons hurled abuses to Rajesh Singh, the complainant objected. Due to this, the accused Ravindra Singh opened fire by country made pistol. The accused Subhash Singh also opened fire on the Rajesh with intention to commit murder. This incident was witnessed by Rajit Ram and Ram Lagan. He proved the written report as Ex-ka-1.
(ii) P.W. 2 Rajesh Singh who is the injured witness. He fully supported the version of the prosecution.
(iii) PW. 3, Dr. Rajesh Kumar Rai who medically examined Jagdish Singh on 28.10.1993 at 4.10 pm and following injury was found on his body:
"1. Several contusions and abrasion of small purple and oval shape. The pellets were found above 6.5 cm from nipple in the area of 6 cm x 8 cm x 7cm.
2. Several linear abrasion purple in colour measuring 12 cm x 16 cm was present on left arm.
3. Swelling abrasion was present measuring 2.5 cm x 1.5 cm.
4. Abrasion and clotted blood was present at right leg above 2 cm of knee measuring 4.5 cm x 0.5 cm."
The doctor stated that injury nos. 1 and 2 were kept under observation. Injury nos and 4 were simple in nature. Injury no. 1 and 2 caused by firearm and injury nos. 3 and 4 were caused by hard and blunt object. On same day at 4.20 pm, the injured Rajesh Singh was also examined by the PW-3 and following injury was found on his body:
"1. Oral shape contused marks present from hip side to above thigh from back side and clotted blood was present and several pellets were present.
2. Contused swelling measuring 4 cm x 2.5 cm present on right side of back."
The witness stated that injury no.1 was kept under his observation and injury no.2 was simple in nature. The injury was one day old and injury no.1 was caused by firearm. The witness proved the injury report of Jagdish Singh and Rajesh Singh as Ex-ka-2 and Ex-ka-3.
(iv) P.W. 4 who is the investigating officer of the case. He proved the site plan as Ex-ka-4 and Ex-ka-5.
(v) P.W. 5, Ramotar Verma, Constable who was the formal witness and proved the chik FIR as Ex-ka-6 and G.D. as Ex-ka-7.
7. 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.
8. After conclusion of the prosecution evidence, statement of the accused-appellants were recorded U/s 313 CrPC in which they stated that he has been falsely implicated in the case due to enmity. Thus they denied the entire prosecution case. But they did not choose to lead any evidence in their defence.
9. During course of trial, Rudra Pratap Singh was reported to be no more and the case was abated against him. Learned trial court after appreciating the entire evidence found the accused-appellants namely, Ravindra Singh and Subhash Singh guilty and convicted and sentenced them as stated above.
10. Being aggrieved and dissatisfied with the judgement and order dated 20.11.2003 passed by the trial court, the appellant has preferred this appeal.
11. I have heard learned counsel for the appellants, learned AGA appearing for the State and perused the material available on record.
12. Learned counsel for the appellants submitted that the injured witness Jagdish was not examined before the trial court which itself creates doubts on the veracity of the prosecution case. It is further submitted that only interested witnesses were produced by the prosecution to prove the guilt of the appellants. The independent witnesses Rajit Ram and Ram Lagan were also not produced by the prosecution. Thus, the whole prosecution evidence is based on conjecture and surmises. Although he can challenge on various points but the counsel for the appellants restricted his arguments and submitted that the matter pertains to year 1993 and as such 30 years have already passed. Only the injured Rajesh appeared before the trial court to prove the prosecution. He got only superficial injury and the trial court convicted the appellants U/s 324/34 IPC and presently the appellant is well settled and well rooted in society. It is further submitted that the trial court also committed error in not giving any benefit of probation to the appellants under the provision of the Probation of the Offenders Act.
13. It is further submitted that the incident pertains to year 1993 and about 30 years have already elapsed. Thus, no useful purpose would be served to again send him to jail to serve out the remaining part of sentence. It is also submitted that presently the appellant side as well as informant side are well rooted in society. Thus, the learned counsel for the appellant prayed for Probation of Offender Act as the appellant have no previous criminal antecedents.
14. 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.
15. 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.
16. 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.
17. It is undisputed fact that the matter pertains to year 1993 and about 30 years have already elapsed. 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.
18. In view of the aforesaid judgments of the Hon'ble Supreme Court, I am of the view that the only surviving appellant- Ravindra Singh is entitled to get the benefit of Section 4 of Probation of Offenders Act 1958.
19. Thus, the appeal is confirmed on the point of conviction and partly allowed on the point of sentence.
20. 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.
21. Office is directed to communicate this order to the trial court concerned for necessary compliance. The trial court record be sent back.
Order Date :- 26.4.2023 Shravan