Allahabad High Court
Akhilesh Shukla And Others vs State Of U.P. on 21 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 45 Case :- CRIMINAL APPEAL No. - 638 of 1996 Appellant :- Akhilesh Shukla And Others Respondent :- State of U.P. Counsel for Appellant :- A.K. Singh,Shashi Prakash Rai Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Singh-I,J.
Heard Sri Shashi Prakash Rai, learned counsel for the appellants and learned A.G.A. for the State.
2. This criminal appeal has been instituted against the judgement and order dated 30.03.1996 passed by Sessions Judge, Siddharthnagar, in Sessions Trial No. 135 of 1991, State Vs. Ram Ashish and others, arising out of Case Crime No. 38 of 1985 u/s 147, 148, 323, 324, 307 I.P.C., P.S.- Uska Bazar, District- Siddharthnagar.
3. By the impugned judgement and order, the trial court has convicted the accused, namely, Ram Ashish, Ram Kishor, Akhilesh, Arvind, Ravindra, Satyadeo and Girjesh u/s 147, 148, 323, 324 r/w 149 I.P.C. and released on probation for two years on the condition of maintaining good conduct and peace in society on furnishing personal bonds of Rs.5,000/- and two sureties in the like amount.
4. The trial court acquitted all the accused from charge u/s 307 I.P.C. No appeal has been filed against acquittal u/s 307 I.P.C. as the order of acquittal has become final.
5. During pendency of appeal, appellant no. 6, Satyadeo and appellant no. 7, Ram Kishor, have died and criminal appeal qua these appellants was abated vide order dated 18.08.2018.
6. It is submitted in the grounds of appeal that the conviction is against the evidence on record. It is also submitted that the conviction is wrong and the sentence is too severe. It is also submitted that appellant, Ravindra Kumar Shukla is a government employee and posted as police constable at Gonda. Appellant, Arvind is in service in Delhi. It has also been submitted that appellant, Ram Ashish is studying in L.L.B. IInd year from Ram Manohar Lohia University, Faizabad, now Ayodhya.
7. The prosecution case in brief is that informant, Govind, is the resident of village, Mehaniyna Bujurg, Police Station- Uska Bazar, District- Siddharthnagar. The accused are also resident of the same village. There was enmity due to litigation between the informant and co-accused Satyadeo. The informant Govind is a commission agent and often remains outside his village. The tilak ceremony of informant's nephew, Arun Kumar was to be held on 29.05.1985. Therefore, informant had gone to his village on 25.05.1985 to participate in the ceremony. On 25.05.1985 at 7.30 p.m., the informant was taking bath at his door. Accused, Ram Ashish, hurled abuses on informant and exhorted the co-accused to kill the informant. Hearing the exhortation, informant ran to his verandah. Thereupon, the accused, Ram Ashish, Akhilesh, Girjesh, Arvind, Ravindra all sons of Satyadeo and Ram Kishor armed with lathi, pharsa and gun with the object of committing murder of the complainant, entered into his verandah. He was dragged out and beaten severely by the accused. Accused, Ram Ashish assaulted with pharsa and remaining accused with lathi. The informant made hue and cry on which witnesses Harihar, Shiv Raj, Parsadi and other villagers reached there, saw the occurrence and saved the informant. The informant received injuries caused by lathi and pharsa.
8. On the basis of the written report of informant, Constable Moharrir, Ram Kamal Mani Tripathi, registered the first information report on 25.05.1985 at 20.05 o'clock. The chik F.I.R. was prepared by him as (Ext.Ka.2). He made entry in G.D. about the registration of criminal case on 25.05.1985 at 20.05 o'clock as G.D. No. 36. The certified carbon copy of the G.D. is (Ext.Ka.4). The investigation was done by Investigating Officer, S.I. Shyam Kishor Mishra who visited the place of occurrence and prepared fard of plain mud and blood-stained mud collected from the spot which was kept in two separate containers which were wrapped by cloth and sealed. The recovery memo of aforesaid mud is (Ext.Ka.5). The plain mud is (material Ext.1) and blood-stained mud is (material Ext.2). The Investigating Officer recorded the statement of the witnesses and after investigation, submitted charge-sheet (Ext.Ka.6) u/s 147, 148, 149, 323, 324, 307 I.P.C. against the accused, namely, Akhilesh, Arvind, Ravindra, Ram Ashish, Girjesh all sons of Satyadeo and Satyadeo and Ram Kishor, sons of Ram Chandra Shukla.
9. On 04.12.1992, the court framed charge u/s 147, 148, 323, 149, 324, 307 I.P.C. against the accused. The accused denied the charge and claimed trial.
10. To prove the charge, prosecution examined informant P.W.1 Govind Prasad and P.W.2 Harihar as witnesses of fact. It also examined P.W.3 Dr. Ashok Kumar and Investigating Officer P.W.4 S.I. Shyam Kishor Mishra as formal witnesses.
11. On 21.01.1995, the court recorded statement of accused u/s 313 Cr.P.C. All the accused stated that false case was registered by the informant due to enmity. They stated that witnesses are giving false evidence. The accused expressed their ignorance about the documentary and material exhibits proved by the prosecution. Accused, Ram Kishor stated that he was outside his village on the date of occurrence and had gone to visit the house of his ailing sister. Accused, Ram Ashish stated that he had gone along with co-accused, Ravindra to attend the marriage of his brother-in-law and was not present in the village. Accused, Arvind stated that on the date of occurrence he was in Delhi. Accused, Akhilesh stated that he had gone to his village- Thakurapur. Accused, Satyadeo stated that informant Govind's cow was eating grains kept in his verandah. He chased away his cow. Then, Govind came with others to his house assaulted him and his son, Girjesh. He visited the police station but the daroga kept him sitting there and registered his first information report on 26.05.1985. The medical examination was done through the constable sent by the police station.
12. The accused examined D.W.1 Prabhunath Pandey and D.W.2 Hemant Kumar in their defence. D.W.1 Prabhunath Pandey has stated that accused, Ram Ashish and his younger brother, Ravindra had gone to village- Sheetalpur, P.S.- Manjhi, District- Chhapra on invitation. They participated in marriage ceremony from 23.05.1985 to 26.05.1985. He proved the marriage card as (Ext.Kha.1). D.W.2 Hemant Kumar stated that accused, Akhilesh was present in village- Mahua, P.S.- Nauchandwa, District- Maharajganj from 24.05.1985 to 26.05.1985 and proved his certificate (Ext.Kha.2). There was barhi of one Vikram Shukla. He had gone to participate in the ceremony.
13. In defence, the accused have also filed copy of charge-sheet, site plan, first information report, injury report and statements of S.O., Shyam Kishor and Dr. Ashok Kumar relating to criminal case lodged by them against accused. The documents are (Exts.Kha.1 to Kha.5), statements of Investigating Officer (Ext.Kha.6) and that of Dr. Ashok Kumar (Ext.Kha.7) and carbon copy of F.I.R. (Ext.Kha.8).
14. Heard the learned counsel for both the parties and perused the entire lower court record.
15. The informant and injured P.W.1 Govind Prasad has stated that on the date of occurrence on 25.05.1985 at 7.30 p.m., he was taking bath in his verandah. Ram Ashish exhorted all other accused to kill him. On hearing this, accused, Akhilesh, Arvind, Ravindra, Satyadeo, Girjesh and Ram Kishor reached in his verandah. They dragged him out of it and with an intention to kill him, started beating him with pharsa, fists and kicks and also by lathi and danda. He received lathi and pharsa injuries. He lodged first information report and was medically examined by Dr. Ashok Kumar in P.H.C.- Uska Bazar.
16. P.W.2 Harihar stated in his evidence that he is the brother of the informant, Govind. On hearing his hue and cry, he reached on the spot. He saw that all the accused, namely, Akhilesh, Arvind, Ravindra, Satyadeo, Girjesh, Ram Ashish and Ram Kishor were beating his brother with fists, kicks, pharsa, lathi, danda, causing him injury.
17. P.W.1 Govind and P.W.2 Harihar have supported the charge framed against the accused. They have deposed about the date, time and place of occurrence, manner of assault, manner of initiation of occurrence, the participation of accused in the assault and marpeet, the weapons used by them, the injury caused to informant Govind and after the occurrence, registration of F.I.R. in P.S.- Uska Bazar and medical examination of informant, Govind at P.H.C., Uska Bazar by Dr. Ashok Kumar.
18. P.W.3 Dr. Ashok Kumar has proved the injury report (Ext.Ka.1) of informant P.W.1 Govind Prasad. He has stated that he examined the informant Govind on 25.05.1985 at 8.30 p.m. He found following injuries on the person of injured Govind Prasad :-
(i) Incised wound measuring 5.5 cm x 0.5 cm x scalp deep on the rt. side of head 10 cm away from the root of rt. ear, blood oozing from the wound.
(ii) Lacerated wound measuring 6 cm x 0.5 cm x scalp deep on the lt. side of head 9 cm away from the root of left ear.
(iii) Incised wound measuring 5.5 cm x 0.5 cm x bond-deep on the lt. side of head, 4 cm away & above from the lt. upper eye lashes.
(iv) Contusion measuring 21 cm x 1.5 cm on the lt. side of back in vertical portion starting from upper part of back towards lower part reddish and of rt. side of back. Reddish colour.
(v) Abraded contusion measuring 16 cm x 1.5 cm on the upper part rt. side of back. Reddish colour.
(vi) Contusion measuring 12 cm x 2 cm on the rt. side of back 3 cm away from injury no. 5. Reddish colour.
(vii) Abraded contusion measuring 17 cm x 2 cm on the lower part of lt. side of back. Reddish colour.
(viii) Contusion measuring 10 cm x 1 cm on the lower part of back.
(ix) Contusion measuring 12 cm x 2 cm on the lower part of back.
(x) Contusion measuring 10 cm x 1 cm on the lower part of back.
(xi) Contusion measuring 5 cm x 2 cm on the upper part of lt. side of forearm. Reddish colour.
(xii) C/O paid on the both buttock but no external injury are seen.
19. In the opinion of P.W.3 Dr. Ashok Kumar, all the injuries were simple and caused by hard and blunt object except injury nos. 1 and 3 which were caused by some sharp-edged weapon. Duration of the injuries was fresh.
20. The Investigating Officer, P.W.4 Shyam Kishor Mishra proved the chik F.I.R. (Ext.Ka.2), entry of institution of criminal case in the G.D. as G.D. no. 36 dated 25.05.1985 at 20.05 o' clock (Ext.Ka.3), site plan (Ext.Ka.4), recovery memo of plain mud and blood-stained mud recovered from the place of occurrence (Ext.Ka.5), plain mud (material Ext.1) and blood-stained mud (material Ext.2) and charge-sheet (Ext.Ka.6).
21. Although the defence has filed copy of charge-sheet, chik F.I.R., site plan, injury report and statements of S.O., Shyam Kishor and Dr. Ashok Kumar as (Exts.Kha.1 to Kha.5), statements of Investigating Officer (Ext.Kha.6) and that of Dr. Ashok Kumar (Ext.Kha.7) and carbon copy of F.I.R. (Ext.Kha.8) relating to Case Crime No. 38A of 1985, P.S.- Uska Bazar, these documents have not been proved through examination of defence witnesses in this case. Therefore, they cannot be read in evidence in favour of defence. Exhibits were mentioned on these documents but from the perusal of the record, it is clear that these documents were not proved by Investigating Officer, Shyam Kishor Mishra and Dr. Ashok Kumar in the case.
22. According to the prosecution case and evidence of prosecution witnesses, P.W.1 Govind Prasad and P.W.2 Harihar, the occurrence took place on 25.05.1985 at 7.30 p.m. The distance of the police station from the place of occurrence is about 1 mile. The report was promptly lodged and the injured, Govind Prasad was examined on 25.05.1985 at 8.30 p.m. The injuries received by Govind Prasad is mentioned in the G.D. (Ext.Ka.3). It shows that the injured received injuries in the occurrence of marpeet. The injuries were caused to him by blunt and sharp-edged weapon. The Medical Officer, P.W.3 Dr. Ashok Kumar has corroborated by his evidence the evidence given by P.W.1 Govind Prasad and P.W.2 Harihar regarding the injuries received by informant Govind Prasad. There is nothing found in the cross of aforesaid prosecution witnesses which may raise doubt on the reliability and veracity of their evidence.
23. It has been argued by learned counsel for the defence that the prosecution has not explained the injuries received by accused, Satyadeo and Ram Kishor. Therefore, the prosecution has not proved the genesis of the case properly and accused should be given benefit of doubt.
24. There is no force in the arguments advanced on behalf of the defence as the alleged injury report of Satyadeo and Ram Kishor has not been proved by cross-examining P.W.3 Dr. Ashok Kumar or producing him in defence. There is nothing on record to prove that in the incident, accused Satyadeo and Ram Kishor have received injuries. The defence has not proved the prosecution papers, namely, chik F.I.R., copy of G.D., site plan, charge-sheet relating to the alleged cross case Case Crime No. 29A/1985 and injury reports of Satyadeo and Ram Kishor. By simply filing the certified copies of these documents, it cannot be said to have been proved as per law and cannot be used in favour of defence.
25. It has also been argued by learned counsel for the defence that the prosecution has examined only two witnesses of facts, one the informant injured P.W.1 Govind and the other informant's brother, P.W.2 Harihar. They are interested witnesses and in the absence of independent witnesses, the prosecution case cannot be said to be proved.
26. In Suresh Sitaram Surve Vs. State of Maharashtra, AIR 2003 SC 344, the Apex Court has explained the law relating to injured witness :-
"the evidence of an injured eye-witness cannot be discarded in toto on the ground of inimical disposition towards the accused particularly where his evidence, when tested in the light of broad probabilities, it can be concluded that he was a natural eye-witness, and had no reason to concoct a case against the accused."
27. In Baleshwar Mahto Vs. State of Bihar, AIR 2017 SC 827, the Apex Court has held :-
"where the eye-witness is also an injured person, due credence to his version needs to be accorded. The presence of the injured witness thus becomes established beyond all doubt. Their testimony could not be rejected just only because they were inimical to the accused."
28. In Karthik Malhar Vs. State of Bihar, 1996 Cr.L.J. 889, the Apex Court has stated the law relating to interested or relative witness :-
"a close relative who is an interested witness cannot be rejected as an interested witness having a direct interest in having the accused somehow or other convicted. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness."
29. In State of Andhra Pradesh Vs. Punati Ramulu, AIR 1993 SC 2644, the Apex Court has held :-
"the evidence of witness cannot be discarded for the mere fact that he was an interested witness. The relationship or the partisan nature of the evidence only puts the court on its guard to scrutinize the evidence more carefully."
30. In the light of the law propounded by the Apex court regarding the appreciation of evidence of injured, relative or partisan witness on careful perusal of the evidence of P.W.1 Govind and P.W.2 Harihar, it is found that their evidence is cogent, truthful and reliable. Nothing has emerged in their cross-examination which may raise doubt about truthfulness and reliability of their evidence.
31. In the present case from the evidence on record, it is clear that there is long standing enmity between informant and the accused and litigation has taken place between them. They are inimical to one another. Under these circumstances, generally independent witness could not come to support either side because if he supports one party, the other party will become inimical to him. Under these circumstances, independent witness would desist from giving evidence in court. In such a case, only partisan and interested witness would come to support the case. The evidence of P.W.1 Govind and P.W.2 Harihar is corroborated by documentary evidence, namely, the injury report (Ext.Ka.1), the chik F.I.R. (Ext.Ka.2), G.D. relating to registration of the case (Ext.Ka.3), site plan (Ext.Ka.4), recovery memo relating to plain mud and blood-stained mud (Ext.Ka.5), (material Ext.1 and Ext.2) and charge-sheet filed against the accused (Ext.Ka.6).
32. Accused, Satyadeo and Girjesh have admitted that they were present at the place of occurrence at the time of the incident. Accused, Ram Kishor, Ram Ashish, Arvind & Akhilesh has taken the plea of alibi and have stated that they were not present in the village at the time of occurrence. Accused, Ram Kishor and Arvind have not produced any evidence in support of their plea of alibi. Accused, Ram Ashish has produced his brother-in-law, D.W.1 Prabhunath Pandey to prove that he was attending the marriage of the daughter of his brother-in-law and accused, Ravindra was present in his village from 23.05.1985 to 27.05.1985. D.W.1 Prabhunath Pandey is a relative of Ram Ashish. He could not tell from where accused, Ravindra had arrived to his village during that period. Regarding the marriage card, he has admitted that there is no signature on the marriage card. He had also admitted that such card can get printed on a later date from any printing press. He has admitted that he has sent the marriage card by post but he did not produce the envelope on which the seal of postal department is fixed. There is no seal of postal department on the marriage card. Therefore, the statement of D.W.1 Prabhunath Pandey regarding the participation of accused, Ram Ashish and Ravindra on that date cannot be accepted.
33. D.W.2 Hemant Kumar who had deposed on 08.02.1995 that accused, Akhilesh was present from 24.05.1985 to 26.05.1985 in his village and he has seen him in the barhi ceremony of Vikram Shukla. He has produced a certificate (Ext.Kha.2) in proof of the presence of accused, Akhilesh in his village- Mahua, P.S.- Nautanwa, District- Maharajganj. D.W.2 Hemant Kumar has given the evidence after 10 years from the date of barhi ceremony. He admitted that large number of persons had participated in the barhi ceremony. He did not clarify how he could remember the presence of Akhilesh after 10 years whereas Akhilesh is not his relative and has not stayed in his house during the period of attending the barhi ceremony. He admitted that the certificate (Ext.Kha.2) was prepared by some Mohd. Haneef during the period of presence of accused, Akhilesh in his village on a later date. Thus, the statement of evidence of D.W.2 Hemant Kumar regarding the presence of accused in the barhi ceremony at the time of occurrence is not acceptable and is accordingly, rejected.
34. Learned counsel for the defence has mentioned certain contradictions in the statements of P.W.1 Govind and P.W.2 Harihar. Since the evidence of P.W.1 Govind and P.W.2 Harihar was recorded in the court more than 8 years after the date of occurrence, therefore, minor contradictions in their evidence is natural. Apart from this, different witnesses had seen the occurrence from different angle. Their capacity to remember facts also differs. Therefore, some contradictions in their statements about the incident is natural.
35. In the case of Leela Ram (dead) through (Duli Chandra) Vs. State of Haryana and others, 2000 SC (Cr) 222, the Apex Court has held :-
"There are bound to be discrepancies between the narration of different witnesses. When they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. One hardly comes across a witness whose evidence does not contain some exaggeration or embellishment. Total repulsion of evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness."
36. Similar law has been propounded by the Apex Court in Krishna Mochi and others Vs. State of Bihar, 2002 SCC (Cri) 1220.
37. Considering the evidence of P.W.1 Govind and P.W.2 Harihar, the alleged contradictions in their evidence is minor and natural. It does not affect the prosecution case in its entirety. Thus, the plea advanced on behalf of the defence in this regard is not acceptable.
38. From the appreciation of above documentary and oral evidence on record , the prosecution has proved that on the alleged date, time and place of occurrence, the accused, namely, Ram Ashish, Akhilesh, Girjesh, Arvind, Ravindra all sons of Satyadeo and Ram Kishor formed an unlawful assembly, armed with deadly weapons like lathi and pharsa. In pursuance of common object of unlawful assembly, they committed rioting and caused simple and grievous injury to informant Govind. Thus, prosecution has proved the charge u/s 147, 148, 323/149 & 324/149 I.P.C. beyond all reasonable doubts.
39. After convicting the accused under the aforesaid sections, the trial court instead of sending them to jail to undergo the sentence, have released them on probation for a period of two years on furnishing personal bond and two sureties on condition that they will maintain peace and they will have good conduct and desist from committing any crime.
40. Law relating to probation as given in Section 4 of the Probation of Offenders Act, 1958 is as follows :
"4. Power of court to release certain offenders on probation of good conduct.-(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
41. A similar provision finds place in the Code of Criminal Procedure. Section 360 Cr.P.C. provides:
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 sub- section 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 recognizance, 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 the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with sufficient surety conditioned on his appearing for sentence and such 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 1958 ), or 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.
42. These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
43. In the case of Subhash Chand and others vs. State of U.P., 2015 Lawsuit (Alld) 1343, this court has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:
"It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgment to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgment. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance."
44. In addition to the above judgment of this Court, this Court finds that the Hon'ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659, giving the benefit of Probation of Offenders Act, 1958 to the accused has observed as below:
"The learned counsel appearing for the accused submitted that the incident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The incident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour."
45. Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.
46. In the light of above discussion, I find no illegality, irregularity or impropriety nor any jurisdictional error in the impugned judgment and order of the court below. The conviction recorded by the court below u/s 147, 148, 323/149 & 324/149 I.P.C. is upheld and is not required to be disturbed.
47. Since the informant/victim and accused belong to same village and are neighbours and accused did not have any criminal antecedents to their credits, the incident has taken place in the year 1985 and more than 36 years have passed since then, there is no ground to interfere in the probation granted by the trial court to the accused.
48. In the facts and circumstances of the case, there is no sufficient ground to allow the criminal appeal. The criminal appeal is accordingly, dismissed.
49. Let a copy of the judgement along with trial court record be sent to the trial court for execution of the trial court order which has become final. The appellants-accused shall appear in the trial court within two months from the date of judgement and file requisite probation bonds and personal bonds accordingly.
Order Date :- 21.04.2023 KS