Allahabad High Court
Babban Singh And 8 Others vs State Of U.P. on 25 November, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 03.11.2020 Delivered on 25.11.2020 Court No. - 31 Case :- CRIMINAL APPEAL No. - 1460 of 2006 Appellant :- Babban Singh And 8 Others Respondent :- State of U.P. Counsel for Appellant :- Abdul Rafey Siddiqui Counsel for Respondent :- Govt.Advocate,Vinay Prakash Singh connected with Case :- CRIMINAL APPEAL No. - 1467 of 2006 Appellant :- Ram Kumar Singh And Another. Respondent :- State of U.P. Counsel for Appellant :- S.M.Pandey,Saryu Prasad Tiwari Counsel for Respondent :- Govt.Advocate,Vijay Prakash Singh,Vinay Prakash Singh Hon'ble Virendra Kumar Srivastava,J.
1. Both the above appeals have been preferred under Section 374 (2) of Code of Criminal Procedure (hereinafter referred to as 'Act'), 1973 against the judgment and order dated 29.07.2006, passed by Ist Additional Sessions Judge, Faizabad in Session Trial No.357 of 2001, arising out of Case Crime No.157 of 2001 whereby the appellant No.1-Babban Singh (since deceased), Ramesh Chandra Singh, Rajkumar Singh, Pawan Singh, Harikesh Singh, Rajesh Singh, Rishikesh Singh, Umesh Singh, Dinesh Singh of Criminal Appeal No.1460 of 2006 and appellants namely Ram Kumar Singh and Akhilesh Singh of Criminal Appeal No.1467 of 2006 (in short 'appellants') have been convicted and sentenced for one year rigorous imprisonment for offence under Section 148 IPC, one year rigorous imprisonment for offence under Section 324 r/w Section 149 IPC, for two years rigorous imprisonment and fine of Rs.500/- each for offence under Sections 325 r/w 149 IPC for three months rigorous imprisonment for offence under Section 504 IPC and for six months imprisonment for offence under Section 506 (2) IPC. All the sentences have been directed to run concurrently.
2. Appellant No.1 Babban Singh of Criminal Appeal No.1460 of 1988 had died during pendency of this appeal and appeal filed by him has been abated by this Court vide order dated 26.02.2020.
3. The prosecution case, in brief, is that Ajay Kumar Singh (P.W.-1) filed a written information report (Ex.Ka-1) at Police Station Taran, District Faizabad on 20.05.2001 alleging that on 20.05.2001 at about 8:00 p.m. he was at his house along with family members. Meanwhile, appellants Babban Singh, Ramesh Chandra Singh, Raj Kumar Singh surrounded his house and entered with appellant-Raj Kumar Singh, Harikesh Singh and Rajesh Singh entered with into the house and caused injury to Tara Devi. At the time of occurrence, Santosh Kumar, Son of Smt. Tara Devi (P.W.2) and Ram Singh husband of Tara Devi were not present in their house. It is further stated in report (Ex.Ka-1) that appellants dragged Tara Devi (P.W.-2) from her house and pulled on their chappar stating that they would burn her. Upon hue and cry made by Tara Devi P.W.2, her brother-in-law (dewar) Yashpal Singh, tried to intervene but the appellants also caused severe injury to him. Thereafter, Virendra Singh, Draupadi, Ajay Kumar Singh, Urmila Devi, Satish, Rajendra Singh, Ajay Singh (P.W.1) appeared to interfere but they also received injuries caused by the appellants. The appellants fled away from the place of occurrence by threatening that they would beat other family members who were not beaten. On the said information, Case Crime No. 157 of 2001 was registered under Sections 147, 148, 149, 324, 323, 325, 504, 506, 307 IPC against the appellants.
4. The injured person namely Yashpal Singh Virendra, Ajay, Urmila, Draupadi, Satish and Tara Devi were sent for medico-legal examination to District Hospital, Faizabad.
5. After investigation, the charge sheet was submitted only against eight accused persons.
6. Since the offence was triable by the Court of Sessions, the Magistrate after taking cognizance committed the case to Sessions Judge, Faizabad after providing relevant police papers as required under Section 207 of the Code. The charges were framed against the appellants who denied the prosecution evidence and claim for trial.
7. During trial, on an application filed by the prosecution under Section 319 of the Code, appellants Akhilesh Singh, Ram Kumar Singh and Dinesh Singh were also summoned and charges were also framed against them, they also denied the prosecution evidence and claim for trial.
8. The prosecution in order to prove its case examined Ajay Kumar Singh (P.W.-1), Tara Devi (P.W.-2), Rajendra Prasad (P.W.-3), Dr. R.B. Singh (P.W.-4), Chandra Prakash (P.W.-5), S.K. Srivastava (P.W.-6), Suresh Babu (P.W.-7) wherein Ajay Kumar Singh (P.W.-1), Tara Devi (P.W.-2) and Rajendra Singh (P.W.-3) are witnesses of fact as well as injured witnesses and rest are formal witnesses.
9. After conclusion of prosecution evidence, the statement of appellants were recorded. All the appellants denied the prosecution story and stated that they have been falsely implicated due to party bandi and enmity. The appellants Umesh Singh, Ram Kumar Singh, Akhilesh Singh, Ramesh Singh, Dinesh Singh, Rishikesh Singh have stated that they were not present in their village at the time of occurrence and have gone elsewhere.
10. To controvert the prosecution story, D.W.1 Chandra Prakash Singh, D.W.2 Raj Baksh Singh, Ashutosh Kumar Singh and D.W.4 Dr. S.R. Vishwakarma were produced and examined by the appellants in defence. The learned trial Court after hearing and considering the submissions of learned counsel for both the parties have convicted and sentenced the appellants as above.
11. Aggrieved by the said judgment, the appellants have preferred this appeal.
12. Heard Shri Abdul Rafey Siddiqui, learned counsel for the appellants, Shri Harikant, brief holder appearing for the State and perused the record.
13. Learned counsel for the appellants submits that though the appellants are innocent and have been falsely implicated and convicted by the trial Court, without considering the evidence and material available on record, as the said occurrence was happened in the night at 8:00 p.m. and whole family of Cheddi Singh and Babban Singh have been convicted and sentenced but he is not making any submission on merits of the impugned judgment and order.
14. Learned counsel further submits that the said offence was happened in the year 2001 and all appellants are family members and related to each other. Learned counsel further submits that all the accused appellants are aged between 45 years to 90 years. Learned counsel further submits that the said occurrence happened on the spur of moment in the night. Appellants are law abiding person having no criminal history. Learned counsel further submits that in view of quantum of sentence, nature of offence, appellants are entitled for benefit of Probation of Offenders Act, 1958 but the trial Court has not granted the said benefit. Learned counsel further submits that appellants may be accorded benefit of the Probation and Offenders Act, hence this appeal.
15. Learned counsel appearing for the State submitted that in view of statement of learned counsel for the appellants that appellants have no criminal history, he has no objection if the appellants are given the benefit of Probation of Offenders Act, 1958.
16. In view of the submissions made by learned counsel for both the parties, it has to be seen whether accused appellants are entitled for Probation of Offenders Act or sentenced awarded by the trial Court is sufficient.
17. In this regard, Sections 3 and 4 of Probation of Offenders Act, 1958 are relevant.
Section 3 of the Act confers power on the court to release certain offenders after admonition. The said provision is as follows:-
"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 of the Act deals with the powers of Court to release certain offenders on probation of good conduct which 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."
18. Thus the philosophy of the Probation of Offender Act 1958 is reformative. Hon'ble Supreme Court in Ratan Lal v. State of Punjab AIR 1965 S.C. 444, while discussing the purpose and object of the Act, has observed in para no. 4, as follows:-
4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act."
19. Hon'ble Supreme Court in Ved Prakash Vs. State of Haryana, AIR 1981, SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with section 4 of Probation of Offenders Act,1958 has held as under:-
"The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act."
20. It is well settled principle of law that provision of law of Probation of Offenders Act, 1958 is beneficial legislation which has been made by legislative for reformation of accused who is first offender as well as young person at the time of occurrence.
21. In the light of the statement made by learned counsel for both the parties, it transpires that the said occurrence happened on 20.5.2001 at 8:00 p.m. i.e. 19 years ago wherein 11 accused appellants were implicated. Record further shows that appellants Babban Singh, Raj Kumar Singh, Ram Kumar Singh are real brothers. Similarly, appellants Ramesh Chandra Singh, Umesh Singh and Dinesh Singh are all sons of Babban Singh and appellants Harikesh Singh, Rajesh Singh, Rishikesh Singh and Akhilesh Singh are sons of Raj Kumar Singh. Thus, it appears that all the appellants are members of one family belonging to common ancestors Chhedi Singh. Record further shows that appellants Babban Singh was 75 years old in 2005; Ram Kumar Singh was 64 years old; Raj Kumar Singh was 51 years old; Pawan Kumar Singh was 52 years and Ramesh Singh was 45 years and rest accused appellants were aged between 24 to 40 years of age.
22. According to learned counsel for the appellants, appellants having no criminal history either before or after this occurrence. They are law abiding persons.
23. Considering the fact and circumstance of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the accused/appellants Ram Kumar Singh, and Akhilesh Singh in Criminal Appeal No.1467 of 2006 and appellants namely Ramesh Chandra Singh, Rajkumar Singh, Pawan Singh, Harikesh Singh, Rajesh Singh, Rishikesh Singh, Umesh Singh and Dinesh Singh in Criminal Appeal No.1460 of 2006.
24. Thus, the appeal is partly allowed. The judgment and order 29.07.2006 2003 passed by Additional Sessions Judge, Faizzabad (Ayodhya) in Session Trial No.357 of 2001, arising out of Crime No.157 of 2001, Police Station Tarun, District Faizabad so far as it relates with the conviction of appellants is hereby confirmed but the sentence is modified. Instead of sending the accused-appellants Ramesh Chandra Singh, Rajkumar Singh, Pawan Singh, Harikesh Singh, Rajesh Singh, Rishikesh Singh, Umesh Singh and Dinesh Singh of Criminal Appeal No.1460 of 2006 and Ram Kumar Singh and Akhilesh Singh in Criminal Appeal No.1467 of 2006 to jail, they are given benefit of Section 4 of the Probation of Offenders Act, 1958. They are directed to file two sureties bonds of Rs.20,000/- each and personal bond of same amount to the effect that they shall maintain peace and good behavior and shall not commit any offence during the period of two years. The bonds aforesaid be filed by him within two months from the date of judgment before District Probation Officer, Faizabad (Ayodhya).
25. Copy of this judgment along with lower court record be sent to the District Judge, Faizabad (Ayodhya) with immediate effect for compliance.
Order Date:-25.11.2020 P.s.