Reserved
Court No. - 88
Case :- CRIMINAL APPEAL No. - 2473 of 2006
Appellant :- Ashok Kumar And Others
Respondent :- State of U.P.
Counsel for Appellant :- Rajendra Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Vipin Chandra Dixit,J.
1. The present criminal appeal has been filed by appellants against the judgment and order dated 27.4.2006 passed by Additional Sessions Judge, Court No.4, Allahabad in Sessions Trial No.349 of 1993 (State Vs. Mahesh Chandra and others), arising out of Case Crime No.221A of 1986, under Sections 323 and 307 I.P.C., P.S. Karchhana, District Allahabad, whereby the appellants were convicted under Section 323 read with Section 34 I.P.C. and sentenced for one year rigorous imprisonment.
2. The facts of the case is that in respect of irrigation of field some quarrel has taken place between informant Ramesh Chandra and one Amba Prasad on 17.11.1986 and on instigation of Amba Prasad the appellants Ashok Kumar, Harish Chandra and Mahesh Chandra reached on the place of incident. Mahesh Chandra opened fire by Tamancha upon the informant Ramesh Chandra but the informant escaped and thereafter Amba Prasad, Ashok Kumar, Harish Chandra had assaulted the informant by Lathi and the informant had received grievous injuries. The informant on the same day i.e. 17.11.1986 have given information about the incident to Senior Superintendent of Police, Allahabad and the F.I.R. was registered on 23.12.1986 as Case Crime No.221A of 1986 under Sections 323 and 307 I.P.C. The Investigating Officer after due investigation had found that appellants had not committed any offence and the informant side was aggressor and caused grievous injuries to Amba Prasad who died and as such has submitted the final report. Learned Magistrate vide order dated 2.4.1987 had rejected the final report submitted by Investigating Officer and direction was issued to register the case. Thereafter the charge-sheet was submitted and since the offence was cognizable by court of sessions, the case was committed to Sessions Court.
3. Learned Additional Sessions Judge had framed the charges under Sections 307 and 323 read with Section 34 I.P.C. against appellant no.3 Mahesh Chandra and charges under Section 307 read with Section 34 and Section 323 read with Section 34 I.P.C. against appellant no.1 Ashok Kumar and appellant no.2 Harish Chandra. The case against accused Amba Prasad was abated as he died due to injuries received in the said incident.
4. The prosecution to establish their case had produced four witnesses namely Ramesh Chandra (informant) as P.W.-1, Shyam Bihari as P.W.-2, S.N. Chaudhary (Pharmacist) as P.W.-3 and Constable Abhilash Tiwari as P.W.-4. The prosecution had also produced documentary evidence as information given to S.S.P., Allahabad (Exhibit Ka-1), medical report of informant (Exhibit Ka-2), Chik F.I.R. (Exhibit Ka-3), General Diary (Exhibit Ka-4) Police Report (Exhibit Ka-5) and report of Hand Writing Expert (Exhibit Ka- 6).
5. The statements of accused-appellants were recorded under Section 313 Cr.P.C. in which they have denied the charges and had stated that informant side was aggressor and caused death of Amba Prasad and only to create pressure upon the appellants a cross case was lodged against appellants with incorrect facts.
6. The trial court after considering the evidence and materials which are available on record had found that no offence under Section 307 read with Section 34 I.P.C. is made out against the appellants and the appellants were acquitted for the charges under Section 307/34 I.P.C. but had convicted the appellants under Section 323/34 I.P.C. for rigorous imprisonment of one year.
7. Learned Sessions Court while convicting and sentencing the appellants had not given the benefits of Section 4 of Probation of Offenders Act, 1958.
8. The Sessions Court has recorded the findings that in the cross case related with present case being Sessions Trial No.257 of 1996 (State Vs. Ramesh Chandra and others) relates with Section 302 I.P.C. the accused persons were convicted and as such the appellants are not entitled for benefit of provisions of Probation of Offenders Act, 1958.
9. Heard Sri Rajendra Singh, learned counsel for appellants, Sri Raj Kamal Srivastava, learned A.G.A. for the State and perused the record.
10. It is submitted by learned counsel for appellants that though there are sufficient ground to challenge the judgment of court below on merits but he is restricting the challenge to non-consideration of the applicability of the provisions contained in Section 4 of Probation of Offenders Act, 1958 and Section 360 of Code of Criminal Procedure, 1973.
11. It is submitted by learned counsel for appellants that trial court had committed gross irregularity in not providing the benefits of provisions of Probation of Offenders Act ignoring the fact that appellants were found guilty only under Section 323/34 I.P.C. and were not found guilty of offence punishable with death or imprisonment for life and the view taken by the trial court that cross case was registered under Section 302 I.P.C., the appellants are not entitled for benefits of Probation of Offenders Act, is vague. For ready reference Section 4 of Probation of Offenders Act, 1958 is reproduced herein below:-
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) is made, 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), 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 or 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.”
12. Learned counsel for appellants had relied on the judgment of Hon'ble the Apex Court in the case of Ramesh Kumar alias Babla Vs. State of Punjab reported in 2016 (13) SCC 280. The relevant paragraphs 8 and 9 are quoted herein below:-
“8. Accordingly the appeal is allowed in part by converting the appellant's conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the Code of Criminal Procedure, 1973 the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (complainant). He brought his brother to police station and lodged a report. As noticed by the trial court, the parties are involved in civil as well as criminal litigation from before. The High Court has noted that the appellant, as per custody certificate, is not involved in any other case. In such circumstances it is not deemed necessary to send the appellant immediately to jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life.
9. In view of aforesaid, in our view the ends of justice would be met by granting the benefit of the Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour.”
13. Learned counsel for appellants had also placed reliance on the judgment in the case of Jagat Pal Singh and others Vs. State of Haryana reported in 1999 SCC (Cri) 1313. The relevant paragraphs 4, 5 and 6 are quoted herein below:-
“4. The appellants have been convicted under Sections 323, 452 and 506 read with Section 34 Indian Penal Code and have been sentenced to three months' simple imprisonment under Sections 323 and 506 read with Section 34 Indian Penal Code, and one month simple imprisonment under Section 452 Indian Penal Code.
5. Mr. Mahabir Singh, learned counsel appearing for the appellants contends that the Courts below have not taken note of either the provisions of the Probation of Offenders Act or Section 360 of the Code of Criminal Procedure and the Court is obliged to look into those provisions while dealing with the conviction of the accused persons. Learned counsel appearing for the State also fairly states that in a case like this, the accused persons ought to have been dealt with under the provisions of the Probation of Offenders Act.
6. In the circumstances, while upholding their conviction, we direct that instead of sentencing them to imprisonment, the accused persons should be required to execute a bond before the Magistrate for keeping good behaviour and peace for a period of six months. This appeal is disposed of accordingly.”
14. It is further submitted by learned counsel for appellants that appellants have not committed any offence and the father of appellant no.3 Amba Prasad was died on account of injury caused by informant and the appellants have been falsely implicated in this case and the learned trial court has also committed illegality in not providing the benefits of Section 4 of Probation of Offenders Act, 1958 for the reason that in other connected case which was registered against the informant relates to Section 302 I.P.C. ignoring the fact that appellants were not found guilty in any offence punishable for death or life imprisonment and as such the view taken by the Sessions Court is perverse and against the settled principles of law. Lastly, it is submitted that appellants are not involved in any other criminal case and there is no criminal history of the appellants.
15. On the other hand, learned A.G.A. has submitted that after considering the entire evidence and materials which are available on record the trial court has rightly convicted the appellants and there is no illegality or irregularity in any manner and the criminal appeal preferred by appellants deserves to be dismissed.
16. The present appeal was admitted on 5.5.2006 and the appellants were granted bail and the execution of sentence was also stayed by this Court during the pendency of appeal.
17. From bare reading of section 4 of Probation of Offenders Act as well as law settled by Hon'ble Apex Court, any person who is found guilty for an offence punishable with death or for imprisonment for life is not entitled for benefit of Probation of Offenders Act and since the appellants were convicted under Section 323/34 I.P.C. they are entitled for benefit provided under Section 4 of Probation of Offenders Act, 1958 and the trial court has committed illegality in holding otherwise.
18. Considering the rival submissions of learned counsel for appellants as well as learned A.G.A. for the State, the Court is of the view that appellants are entitled for benefit provided under Section 4 of Probation of Offenders Act, 1958.
19. The criminal appeal is partly allowed in respect of sentence. The conviction of the appellants is upheld but instead of sentencing them for imprisonment, the appellants should be required to execute a bond before the concerned Magistrate for keeping good behaviour and peace for a period of six months.
Order Date :- 21.09.2021 Kpy