Heard Sri Rajendra Prasad, learned counsel for the appellants for quite some time and the learned A.G.A.
This criminal appeal has been filed against the judgment and order dated 22.2.1997 passed by Second/Special Additional District Judge, Hardoi convicting the appellants under Section 452, 323/34, 504, 506 IPC and 3(1) (10) of S.C./S.T. (Prevention of Atrocities) Act, 1989 in Special Criminal Case No.300/92 in Case Crime No.219/91 and sentencing them to under go two years' R.I. under Section 452, one year's R.I. under Section 323/34, , one year R.I. under Section 504, two years R.I. under Section 506 and under Section 3(1) (10) of S.C./S.T. (Prevention of Atrocities) Act, 1989 one year R.I. All sentences were directed to run concurrently.
The incident is alleged to have taken place on 29.11.1991 around 8' O clock in the morning when son of the accused Chheda and Vijai Pal son of complainant Rampati entered into verbal abuse. Son of Chheda complained to his father Chheda who in turn along with brother Ram Babu and Sri Ram attacked Vijay Pal, who ran into his house out of fear. It has been alleged that the accused belong to upper caste while the complainant belongs to the lower caste. It has come in the F.I.R. that the children were playing and during that play there was a scuffle amongst the children. It is stated that later on accused attacked Vijay Pal, who ran into the house. The accused went to the house and assaulted the child and when the child was being protected by the mother, the accused assaulted her also with lathis and fists.
Medical evidence shows that there was only one injury caused by lathi. However, it was a simple injury. The accused are alleged to have abused the lady with caste related words.
Learned counsel for the applicant-accused has argued that since the words have been uttered inside the house hence S.C./S.T. Act will not be attracted as it was not uttered in public place. So far as other sections are concerned, there is one simple injury which has been received by the lady but at the same time the bangles which she was wearing has not broken down.
An affidavit has been filed by Chheda alias Chheddu, who is now 62 years, Ram Babu, aged about 45 years and Sri Ram aged about 60 years, all sons of Sukkha, resident of village Mallawan, Police Station-Kachchauna, District-Hardoi, who are the appellants in the present case.
It has been mentioned in paragraph 2 of this affidavit that the deponents/appellants are resident of village-Matuwa, Police Station-Kachchauna, District-Hardoi and Smt. Ram Pati complainant/informant in the case crime No.219/1991 under Section-323/452/504/506 IPC read with Section 3(1) (x) SC/ST Act is also resident of same village on whose information case was registered and was tried by Additional Sessions Judge, Hardoi vide S.T. No.300/92 (State Vs. Chhedu alias Chhed and others) in which they were convicted by Second Special District and Sessions Judge on 20.2.1997, against which they have preferred appeal vide Appeal No.105/97. It has been further stated in this affidavit that about 21 years have passed since the incident had taken lace and now the relations between appellants-accused and Ram Pati wife of Madho Ram resident of village-Matuwa, Police Station-Kachchauna, District-Hardoi, are cordial with complainant/informant and with her family members who are their neighbor and they are living peacefully in the village and there is no any grievance and malice to each other on account of above case. Now they are passing their life happily as neighbor to each other. It is further stated in the affidavit that except this case, no other case is pending or decided against the deponents. It is further submitted that deponents remained in jail in above case during pendency of case, in which deponent Sri Ram and Chheda remained in jail for fifteen days while accused Ram Babu remained in jail for two months.
Learned counsel for the appellants submitted before this Court that having regard to the facts and circumstances of the case, including the nature of the offense and character of the offenders, it is expedient to release the accused-persons on probation of conduct by this Court. Section 4 of the Probation of Offenders Act empowers the Court to release a convicted person on his entering into a bond with or without sureties on probation when he is found guilty of committing any offense, not punishable with death or imprisonment for life. Relevant portion of Section 4 of the Probation of Offenders Act, 1958 reads thus:-
"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 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 our 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."
For exercising the power which is discretionary, the Court has to consider the circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the accused under Section 4 of the Probation of Offenders Act is subjected to limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders 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 court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the court even at the appellate or revisional stage and also by this Court while hearing the appeal.
From a perusal of the facts in this case, it is apparent that the incident occurred at the spur of the moment and is trivial in nature. There is no material on record to indicate that the appellants are previous convicts. Appellant No.1 Chheda was 65 years of age in the year 1995 when the appeal was filed. He would naturally be around eighty years of age today. This is an extreme old age and should be given due consideration by the court. In absence of any previous history, the appellants can be treated as first offenders. Chheda alias Chhedu-appellant No.1 is said to have assaulted using lathis and fists. Appellant No.2 Ram Babu and appellant No.3- Sri Ram are alleged to have assaulted Rama Pati with fists and kicks. All injuries were simple. So far conviction under S.C./S.T. Act is concerned, it does not appear to be correct. The evidence shows that the assault had taken place inside the house. The caste related words naturally may have been uttered inside the house of the victim.
Section 3(1) (x) of S.C./S.T. (P.A.) Act reads as under:-
"3. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
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(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
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A room inside the house will not be a public place. It has clearly come in the judgment that the appellants had chased the victim inside the house, which will not come under the definition of public place.
It has been urged by learned counsel for the appellants that prayer for releasing the appellants on probation under the Probation of Offenders Act, 1958 should have been considered by the Court when such request was made before the lower court, but the same has been rejected. While rejecting this plea, no cogent reason has been recorded by the lower court.
Learned counsel for the appellants has placed reliance upon the judgment in the case of :-
1.2004 CRI. L. J. 4254 (State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and others);
2.(2005) 13 Supreme Court Cases 110 (Sitaram Paswan and another Vs. State of Bihar);
3.(2009) 17 Supreme Court Cases 757 (Gaya Prasad Vs. State of Madhya Pradesh and others) and
4.(2010) 12 Supreme Court Cases 26 (Mohd. Monir Alam Vs. State of Bihar).
In State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and others 2004 CRI.L.J.4254 (supra) Hon'ble Supreme Court, almost in identical matter, has allowed release of the applicant on the basis of Probation of Offenders Act 1958.
Keeping in view the circumstances of the case, the argument of learned counsel for the appellants, the recently filed affidavit by the appellants and passage of time, which is more than two decades since the occurrence has taken place, the period of detention of appellants no. 1 and 2 in jail as well as the nature of injuries caused by the appellants, this Court is of the opinion that the sentences awarded to the appellants are reduced to the extent that they are awarded R.I. for one year on each of the counts namely U/ss. 452, 323/34, 504 and 506 I.P.C. with a fine of Rs.1500/- each, but instead of sending the appellants to jail, they deserve to be given the benefit of Section-4 of Probation of Offenders Act, 1958, with the condition that the appellants shall pay compensation of Rs.1500/- to the victim for the loss and injury suffered by her by reason of act for which the appellants were sentenced.
Accordingly, the conviction of the appellants Chheda alias Chheddu, Ram Babu and Shri Ram, passed against them by the Court below, is modified to the extent that they are awarded R.I. for one year on each of the counts, namely, U/ss. 452, 323/34, 504 and 506 I.P.C. with a fine of Rs.1500/- each, but instead of sending them to jail, they are given the benefit of Section 4 of Probation of First Offenders Act, 1958, with the condition that each of the appellants shall pay amount of fine as compensation of Rs.1500/- to the victim, within a period of one month, for the loss and injury suffered by her by reason of act for which the appellants were sentenced. It is directed that the appellants be released on probation as mentioned above, on terms to be settled by the trial court.
So far as conviction under Section 3(1) (10) of S.C./S.T. (Prevention of Atrocities) Act, 1989 is concerned, the appeal to this extent is allowed and the order convicting the appellants under Section 3(1) (10) of S.C./S.T. (Prevention of Atrocities) Act, 1989, is set aside.
The appeal is allowed to the above extent.
Dt. 30.10.2012.
RKM.