Delhi District Court
Sandeep Kumar vs State on 4 September, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
CRL. APPEAL No. 46/2020
CNR No. : DLST01-002044-2020
1. Sandeep Kumar
S/o Rai Singh
VPO-Nautana
PS Kaniha
Teh & Distt- Mohindergarh
Haryana, Pin-123027
2. Ram Bilas
S/o Late Sh. Bhola and,
R/o VPO Pota, Tehsil and
Distt. Mahender Garh,
PS- Kanina, Haryana ................ APPELLANTS
VERSUS
The State (NCT of Delhi)........... RESPONDENT
DATE OF INSTITUTION : 20.02.2020
ARGUMENTS HEARD ON : 05.06.2024
DATE OF JUDGMENT : 04.09.2024
JUDGMENT
1. The present appeal under Section 374 Cr.P.C. has been filed by the appellants against the impugned judgment of conviction dated 22.01.2020 and order on sentence dated 24.01.2020 as passed by the court of Ld. MM-04, South, Saket, New Delhi. By the said judgment, the trial court has convicted both the appellants for Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK offences under Section 419/120B IPC and sentenced them PATHAK Date:
2024.09.04 17:27:56 +0530 to undergo simple imprisonment of one year and fine of Rs. 5,000/- each.
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2. Brief facts as noted by Ld. Trial court in the impugned order are as follows:
"The allegations against the accused are that on 12.10.2014 at 10.15 am at room no. 27 (Diploma 2 nd year ECI Class Room) STS BSF, Tigri Camp, MB Road, accused Sandeep Kumar in pursuance of a criminal conspiracy with co-accused Ram Bilas by impersonating himself as Ram Bilas appeared for the written test for the post of HC BSF by producing an I-card. As per allegations accused Ram Bilas had allowed accused Sandeep Kumar to appear on his behalf for the written test for the post of HC BSF and thereby both the accused alleged to have committed an offence punishable u/s 417/419/34 IPC."
3. Accordingly FIR u/s 417/419/34 IPC was registered.
After completion of investigation, a charge sheet was filed against the appellants herein for the offences punishable under section 417/419 IPC. After taking cognizance, the appellants were summoned and thereafter charge for offence u/s 419 r/w 120 B IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
4. The prosecution has examined seven witnesses to establish its case. The Trial court has summarized their testimony in following manner:-
"PW1 Sh. V.K. Yadav deposed that on 12.10.2014 he was posted as Deputy Commandant/ADJT/STS/BSF Camp, Tigri Camp, New Delhi and on that day, he received an information that at Room No. 27, 2nd Floor, BSF Polytechnic boys hostel where written examination of HC Fitter was going on, invigilator ASI/RM K.B. Naidu noticed that the candidate in the name of Ram Vilas was not resembling his face with the photograph attached with the admit card. He enquired with the candidate and it came to the notice that accused Sandeep was appearing in place of Ram Vilas in the Digitally examination. After preliminary questioning, he told that he was a PURSHOTTAM close relative of Ram Vilas and was appearing as a dummy candidate signed by to help him clear the examination. The board of officers given a PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 17:28:00 +0530 written complaint to DIG of STS, BSF to further investigate the CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 2 of 18 case. He himself went to the place and enquired about the matter and with the help of BSF personnel namely ASI Jeet Singh, ASI K.B. Naidu, HC Abbas Ali, accused was sent to PS Sangam Vihar. He, on behalf of DIG STS BSF gave a written complaint to the police about the incident i.e. Ex.PW1/A. He also handed over certain documents i.e. DL, Admit Card, application form and call letter i.e. Ex.PW1/B to Ex.PW1/E. His statement was also recorded by the police u/s 161 Cr.P.C as Mark. He identified accused Sandeep Kumar in the court. He was cross examined on behalf of the accused persons.
PW2 ASI K.B. Naidu deposed that on 12.10.2014 he was an invigilator for the written exam i.e. HC Fitter at Room No. 27, Second Floor, BSF, Polytechnic Boys Hostel at BSF Tigri Camp. Around 30 candidates were present in the aforesaid room for attending the written exam. At that time, just before giving the question papers/booklet to the candidates, he was verifying the hall tickets with the dossier and he found suspicion in the photograph of admit card and the person who was presenting himself as Ram Vilas, he was interrogated and he admitted that he was not Ram Vilas and he disclosed his name as Sandeep and also disclosed that he had come on behalf of Ram Vilas to appear as a dummy candidate in the examination. Thereafter, Deputy Commandant V.K. Yadav reached the spot and he conducted preliminary investigation. Thereafter, he alongwith other BSF officials namely ASI Jeet Singh and HC Abas Ali took him to PS Sangam Vihar under the instruction of V.K. Yadav. A complaint was given by V.K. Yadav to the police and FIR was registered. IO ASI Malkhan Singh seized the admit card of candidate Rambilas vide seizure memo Ex.PW2/A. He was arrested vide arrest memo Ex.PW2/B and his disclosure statement was recorded vide Ex.PW2/C. Pointing out memo was prepared vide Ex.PW2/D and site plan was prepared vide Ex.PW2/E. He identified accused Sandeep Kumar in the court. He was cross examined on behalf of the accused persons.
6. PW3 SI Jeet Singh deposed that on 12.10.2014 he was posted as ASI at STS BSF Tigri Camp, MB Road, New Delhi and on that day, Deputy Commandant Sh. V.K. Yadav called him and upon his instruction, he alongwith HC Abas Ali took accused Sandeep to PS Sangam Vihar. FIR was registered against him on the basis of complaint given by Sh. V.K. Yadav. Thereafter, he was arrested by the IO vide arrest memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW3/A. He identified accused Sandeep in Digitally the court. He was cross examined on behalf of the accused persons.
signed by PURSHOTTAM PW4 HC Abas Ali deposed on the same lines as deposed by PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 PW 3. He was cross examined on behalf of the accused persons. 17:28:06 +0530 CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 3 of 18 PW5 HC Dharam Singh deposed that on 12.10.2014 he was posted at PS Sangam Vihar as Ct. and on that day, he joined the investigation of the present case alongwith IO ASI Malkhan Singh. Accused Sandeep was produced in the PS by the BSF Officials. Thereafter, IO seized the documents produced by the BSF official vide seizure memo Ex.PW2/A and interrogated accused Sandeep. He was arrested by the IO vide arrest Ex.PW2/B and his personal search was conducted vide memo Ex.PW3/A. Thereafter, IO recorded his disclosure statement vide memo Ex.PW2/C. Thereafter, he was taken to the spot of the incident where IO prepared the pointing out memo at instance of accused i.e. Ex.PW2/D. He identified accused Sandeep in the court. He was cross examined on behalf of the accused persons.
PW6 ASI Malkhan Singh deposed that on 12.10.2014 he was posted at PS Sangam Vihar and on that day, he alongwith Ct. Dharam Singh were on emergency duty. On that day, ASI Jeet Singh, who was posted at BSF, Tigri Camp, MB Road, New Delhi alongwith you came at PS Sangam Vihar and gave a written complaint to him. On the basis of complaint, he prepared the rukka Ex.PW6/A and got the FIR registered. He alongwith Ct. Dharam Singh, BSF staff and accused Sandeep went to the spot where he met invigilator ASI K.V. Naidu and enquired from him. He prepared the site plan at instance of K.V. Naidu Ex.PW2/E. Accused Sandeep was interrogated and his disclosure statement was recorded vide memo Ex.PW2/C. He also prepared pointing out memo at the instance of ASI K.V. Naidu vide memo Ex.PW2/D. Accused Sandeep was arrested vide arrest memo Ex.PW2/B and his personal search was conducted vide memo Ex.PW3/A. He seized the documents vide seizure memo Ex.PW2/A and also seized attested photocopies vide memo Ex.PW1/B to Ex.PW1/E. He recorded statement of the witnesses u/s 161 Cr.P.C. After completing the investigation, he prepared the challan and submitted before the court. He identified accused Sandeep in the court.
PW6 further deposed that on 30.05.2015 he went to District Mahendergarh, Haryana and gave notice u/s 41 Cr.P.C to co accused Ram Vilas vide Ex.PW6/C. On 22.06.2015, co accused Ram Vilas came to PS and joined the investigation. He recorded his disclosure statement vide memo Ex.PW6/D. Co-accused Ram Vilas was arrested vide arrest memo Ex.PW6/E and his personal search was PURSHOTTAM conducted vide memo Ex.PW6/F. PW6 also filed supplementary PATHAK chargesheet against co-accused Ram Vilas i.e. Ex.PW6/B. He identified coaccused Ram Vilas in the court. He was cross examined Digitally signed on behalf of the accused persons. by PURSHOTTAM PATHAK Date: 2024.09.04 PW7 ASI Kuldeep Singh deposed that on 02.06.2015 he was 17:28:11 +0530 posted at PS Sangam Vihar and on that day, he joined the CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 4 of 18 investigation alongwith ASI Malkhan Singh. On that day, coaccused Ram Vilas came to PS and IO ASI Malkhan Singh interrogated co- accused and recorded his disclosure statement vide memo Ex.PW6/D. Thereafter, IO arrested co-accused Ram Vilas vide arrest memo Ex.PW6/E and conducted his personal search vide memo Ex.PW6/F. He identified co-accused Ram Vilas in the court. He was cross examined on behalf of the accused persons."
5. The PE was closed vide order dated 24.05.2019 and statement of the accused was recorded u/s 313 Cr.P.C., wherein all the incriminating circumstances were put to them which they denied. Thereafter, in defence evidence, accused persons examined one Naveen Kumar as DW1, who deposed that on 12.10.2014, he had attendant the written exam at STS BSF Camp, Tigri and on that day, accused Ram Vilas was present in the examination centre in the same room and that during the examination, he was taken out of the examination hall. He was cross examined by Ld. APP for the State. After closing of defence evidence, final arguments were heard by the Ld. Trial Court. Appellants were convicted vide impugned judgment dated 22.01.2020, and sentenced vide order dated 24.01.2020.
6. Being aggrieved by the impugned judgment of conviction and order on sentence, appellants have PURSHOTTAM preferred this appeal on following grounds:-
PATHAK Digitally signed by PURSHOTTAM i. that the impugned judgment passed by Ld. MM is PATHAK Date: 2024.09.04 17:28:16 +0530 bad in law and contrary to the evidence on record.
CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 5 of 18 ii. that the Ld. Trial Court has wrongly and unlawfully ignored the defence evidence of the appellants.
iii. that the Ld. Trial Court failed to consider the fact that convict Sandeep Kumar was taken to PS Sangam Vihar by ASI Jeet Singh, ASI K. B. Naidu and HC Abbas Alli.
iv. that the Ld. Trial Court has failed to appreciate that in his cross examination PW-2 ASI K. B. Naidu has stated that he had not handed over the dossier of the admit cards of the candidate to the IO, which makes the presence of Sandeep Kumar and recovery of admit card from his possession doubtful.
v. that the Ld. Trial Court has failed to appreciate that PW-2 ASI K. B. Naidu has stated in his cross examination that the statement of invigilator Maan Singh was not recorded by the IO which also makes the presence of Sandeep Kumar and recovery of admit card from his possession doubtful.
vi. that the Ld. Trial Court has failed to appreciate that PW-1 V. K. Yadav has stated in his cross examination that CCTV cameras were installed but no CCTV PURSHOTTAM footage was given to the IO.
PATHAK
7. I have heard the arguments advanced by Ld. Digitally signed by PURSHOTTAM PATHAK counsels for appellants as well as the Ld. Addl. PP for the Date: 2024.09.04 17:28:21 +0530 State.
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8. Ld. counsels for appellants have argued that the appellants/ convicts have been falsely implicated in this case. They also argued that the testimony of witnesses is full of lacunaes and contradiction and the whole prosecution case is unreliable. They submitted that the Ld. Trial Court failed to appreciate the points/ grounds raised by the appellants counsels during trial and has based its judgment on conjectures and surmises. They also argued that the several persons were present in the examination hall at the time of incident, but none of them had been made witness. They argued that the Ld. Trial court failed to appreciate that no such incident had taken place. Further, They submitted that the impugned judgment and order on sentence are liable to be set-aside and the appellants/ convicts are entitled to be acquitted in this case.
9. On the other hand, Ld. APP for the State has argued that the judgment passed by the Ld. Trial Court is well reasoned and no ground for setting-aside the same is made out. Prosecution has examined seven witnesses in support of its case and the said witnesses have duly proved the prosecution case. He argued that the offence occurred during the HC Fitter exam, where accused Sandeep appeared in the examination instead of accused Ram Bilas and was caught red-handed. He argued that the recovery of Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK documents of accused Ram Bilas from accused Sandeep PATHAK Date:
2024.09.04 17:28:30 +0530 proves conspiracy as well as the other offence with which the accused persons have been charged. Thus, it is prayed CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 7 of 18 that the accused persons be convicted for the said offences. He submitted that the appeal filed by the appellants is without merit and same is liable to be dismissed.
10. I have duly considered the rival submissions. I have perused the record carefully.
11. The case of the prosecution is that on 12.10.2024 at 10:15 AM in room no. 27 (Diploma Second Year ECI Classroom) STS BSF, Tigri Camp, M.B. Road, accused Sandeep appeared for the examination for written test for the post of HC BSF by producing an I-card, personating accused Ram Bilas in criminal conspiracy with him by using his admit card. The accused persons thereby committed offence punishable u/s 419 and 120-B IPC.
12. Appellants have been convicted and sentenced for offences punishable under Section 419/120B IPC. Let us examine whether the offences alleged are made out in the present case.
13. The complaint Ex. PW1/A made by Sh. V. K. Yadav, who was deputy Commandant/ADJT/STS/BSF Camp, Tigri Camp at that time has been proved by him. He also proved the documents i.e. DL, Admit Card, application PURSHOTTAM PATHAK form and call letter i.e. Ex. PW-1/B to Ex. PW-1/E. He Digitally signed by proved the arrest of accused and also identified the accused PURSHOTTAM PATHAK Date: 2024.09.04 during the court proceedings.
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14. The testimony of PW-2 is crucial as he was the invigilator at that time. He categorically deposed that while verifying the hall tickets with the dossier he found that the photographs affixed on the admit card of one of the candidate was not matching with the applicant Ram Bilas who had applied for the post. He informed PW-1 and upon investigation into the circumstances, they found that accused Sandeep was appearing in place of Ram Bilas. He confirmed the version of other prosecution witnesses as to the chain of events thereafter and proved the arrest of accused Sandeep.
15. PW-6 ASI Malkhan Singh is the IO, whose testimony reveals that on 12.10.2014, on receiving a complaint. He prepared the rukka Ex. PW-6/A on the basis of which FIR got registered. He deposed about the arrest of accused Sandeep and thereafter conducted the rest of the investigation such as seizure of documents Ex. PW-2/A and attested copies Ex. PW-1/B to Ex. PW-1/E.
16. What emerges beyond reasonable doubt from the above mentioned testimonies that accused Sandeep appeared for written test for the post of HC, BSF in the examination, in place of accused Ram Bilas and he was apprehended on the spot. Documents pertaining to accused Digitally signed by PURSHOTTAM Ram Bilas were found in possession of accused Sandeep as PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 can be seen from the ocular evidence as well as seizure 17:28:42 +0530 memo and documents on record. The chain of documents CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 9 of 18 and events stands proved beyond reasonable doubt by the prosecution. The prosecution witnesses withstood the test of cross-examination and supported the prosecution version as well as corroborated each other's version. Their testimonies are coherent and consistent.
17. In the present case, the arrest of accused Sandeep from examination hall on 12.10.2014 has been duly supported by PW- 1 to PW-6. Further, accused Sandeep was correctly identified by the witnesses during his appearances in the court.
18. Next, it is pertinent to note that the prosecution witnesses (officials conducting/supervising/invigilating the exam) have no motive to falsely implicate the accused persons. Therefore, this court finds no force in the argument of the Ld. Counsel for the accused persons that the accused were falsely implicated and accused Ram Bilas was writing his own exam but deliberately not arrested on the spot.
19. Cheating by personation is made punishable under section 419 IPC. As per section 416 IPC, a person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK person is a person other than he or such other person really PATHAK Date:
2024.09.04 17:28:47 +0530 is.
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20. As already discussed above, so far as the offence of cheating by personation is concerned, it is clearly established by the oral and documentary evidence placed on record by the prosecution, particularly testimonies of PW-1 and PW-2, that accused Sandeep appeared in the examination pretending to be accused Ram Bilas.
21. The accused persons have been charged for the offence under section 120 B IPC, alongwith the main offence. Section 120 B(2) IPC requires the offender to be party to a criminal conspiracy to commit an offence other than those covered in section 120B (1). With regard to the proof of conspiracy, the observations of Hon'ble Apex Court in Pratapbhai Hamirbhai Solanki V. State of Gujarat, (2013) 1 SCC 613 are relevant. The same is reproduced below:
"In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused."
22. The prosecution has proved by producing the Digitally original application form Ex. PW-1/D filled in name signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 accused Ram Bilas and admit card Ex.PW1/C issued in 17:28:51 +0530 name of Ram Bilas, that accused Ram Bilas had applied CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 11 of 18 for appearing in the examination of HC/BSF. On the Admit card Ex. PW-1/C, which was issued to accused Ram Bilas, Photo of accused Sandeep was affixed and same was also recovered from his possession. Further the conductor licence Ex. PW-1/B, in the name of Ram Bilas was recovered from the possession of accused Sandeep. Under Section 106 of the Indian Evidence Act, 1872, onus to prove as to how the document pertaining to accused Ram Bilas were found in possession of accused Sandeep, was that of accused Sandeep himself, he being in special knowledge of the fact. Similarly, accused Ram Bilas was to explain as to how his admit card and conductor licence were in possession of accused Sandeep. Thus, from the said documents no other inference can be drawn except that both the accused conspired to cheat the Department/officials conducting the examination by causing accused Sandeep to appear in the examination in place of Ram Bilas.
23. A conspiracy is usually hatched in secret making it almost impossible to produce any direct evidence about the date of the formation of the criminal conspiracy, the persons involved in it or the object of such conspiracy or how such object is to be carried out, however, the same can be inferred from the facts and circumstances of the Digitally signed by PURSHOTTAM case. In the present case, prosecution has been able to PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 establish a chain of events that led to discovery of 17:28:57 impersonation and other offences committed by accused +0530 CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 12 of 18 Sandeep. The same could not have been possible without the active involvement and agreement of accused Ram Bilas. Both accused persons conspired with each other to commit the already discussed offences and thus they have been rightly held liable by the Ld. Trial Court.
24. Ld. Counsels for the appellant have contended that from the evidence of DW-1, it is proved that accused persons are innocent. However, there is no force in such contention as apart from mere statement of DW-1 no document has been produced to show DW-1 appeared in exam at STS-BSF camp on 12.10.2014.
25. Ld. Counsel for the appellants have also contended that the CCTV cameras were installed in the premises but no CCTV footage was given to the IO. Ld. Trial Court has rightly dealt this point by observing that PW-2 and PW-6 have clearly deposed that no CCTV was installed in the examination hall but only outside of hall. Hence, I do not find any merit in such contention.
26. Ld. Counsel for the appellants have urged that despite the presence of other candidates in the examination hall, no public witness was examined. However, I do not find any force in such contention as non-investigation with regard to public witnesses cannot go to the root of the PURSHOTTAM PATHAK matter and benefit of defect in investigation cannot be Digitally signed by PURSHOTTAM given to the accused. It is common to find that public PATHAK Date: 2024.09.04 17:29:02 +0530 persons do not wish to drag into any controversy. There is CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 13 of 18 general reluctance to be cited as witness and people do not wish to be summoned by court and to render their testimony before a court of law. Owing to the fear of courts and a misconception that the witnesses would be subjected to harassment, people do not wish to come forward to narrate their version even though they may have witnessed the incident. Merely because the said persons do not come forward does not imply that version of the victim should be ignored or deprived of due credit. In the case of Appa Bhai Vs. State of Gujrat AIR 1988 SC 696, it has been held as under:-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil disputes are between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore that this handicapped with which the investigating agencies have to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."
27. So far as minor discrepancy in the version of testimonies of witnesses is concerned, none of the contradictions as pointed out by the Ld. Counsel for appellant during the course of arguments, is of such nature Digitally signed by PURSHOTTAM so as to go into the root of the matter. The said minor PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 17:29:09 +0530 contradictions does not corrode the credibility of the CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 14 of 18 witnesses, therefore, the same cannot be dubbed as contradictions so as to brush aside the case of prosecution unworthy of credence. Hon'ble Apex Court in State of Rajasthan Vs. Smt. Kalki and Anr. (1981) 2 SCC 752 (FB) observed as under:-
"In the deposition of witnesses there are always normal discrepancies, however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence and the like. Material discrepancies are those which are not normal and not expected from a normal person. "
28. Ld. Counsel for the appellant has failed to point out any material contradiction in the testimonies of witnesses so as to render the same unreliable.
29. I am satisfied that the Ld. Trial Court has considered the matter in right perspective and has convicted the accused persons. The judgment of conviction dated 22.01.2020 is therefore, upheld.
30. Now coming to the sentence imposed by the Ld. Trial Court, whether it requires any modification.
31. The appellants have moved an application under Section 4 of the Probation of Offenders Act seeking their release on probation. Ld. Counsel for the appellants have PURSHOTTAM contended that the incident alleged in this case took place PATHAK almost 10 years back and that the appellants are now aged Digitally signed by PURSHOTTAM PATHAK Date: 2024.09.04 about 40 years. Ld. Counsels also submitted that the 17:29:13 +0530 CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 15 of 18 appellants have faced trial for more than 10 years and there is no complaint in respect of their behavior.
32. The application has been opposed by the Ld. APP for the State.
33. There can be no dispute that the appellants have committed the alleged offences. But then, it also cannot be ignored that the offence took place more than 10 years back and the appellants have already faced the pangs and suffered agony of trial. They are living a settled life and in case they are sentenced, they will be stigmatized and their life will be ruined. Therefore, a lenient view may be taken.
34. Section 4 of the Probation of Offenders Act empowers the Court to release the convict on entering into a bond, with or without sureties, on probation when he is found guilty of committing any offence not punishable with death or imprisonment for life.
Relevant portion of Section 4 is reproduced as under:-
"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 Digitally signed by PURSHOTTAM sureties, to appear and receive sentence when called upon during PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 such period, not exceeding three years, as the court may direct, and 17:29:20 +0530 in the meantime to keep the peace and be of good behavior;
CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 16 of 18 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."
35. For exercising the power which is discretionary, the Court has to consider various circumstances of the case, like the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take realistic view of the gravity of the offence, the impact which the offence had on the victim, the benefit available to the accused person under this provision is subject to the limitation embodied in the provision as is evident from the use of the word "may" which clearly indicates that the discretion vested with the Courts whether to release the offender in exercise of the power under Section 3 or 4 of the Act having regard to the nature of the offence and character of the offender and over all circumstances of the case. The powers under Section 4 of the Act vest with the Court when any person is found guilty of the offence committed not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Courts come to a conclusion by considering the circumstances of the case including the nature of the offence and the character of the offender, benefit should be given to the Digitally signed by PURSHOTTAM accused. Obviously, this power can be exercised by the PURSHOTTAM PATHAK PATHAK Date:
2024.09.04 17:29:24 +0530 Court even at the appellate stage.
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36. Having regard to the rival contentions and having gone through the circumstances emanating from the record and after in depth consideration of the entire matter, I find no legal impediment for considering the case of the appellants for grant of probation, particularly, in light of the fact that the incident in this case (i) pertains to the year 2014; (ii) the appellants have already faced the pangs and suffered agony of protracted trial and appeal for the last more than 10 years.
37. Even the modern trend of penology also leads to the reformation of the offender so as to make him useful citizen of the society.
38. Let a report be called from the Probation Officer u/s 4 (2) of Probation of Offenders Act, 1958 for next date i.e. 20.09.2024.
39. Copy of this judgment be given to Ld. counsels for appellants forthwith.
40. A copy of this judgment be supplied to Ld. APP Digitally signed by PURSHOTTAM forthwith. PURSHOTTAM PATHAK PATHAK Date: 2024.09.04 17:29:30 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 04th DAY OF SEPTEMBER, 2024 SAKET COURTS: N.D (This judgment contains total 18 signed pages) CA No. 46/2020 Sandeep Kumar and Anr. Vs. State Page no. 18 of 18