Court No. - 13
Case :- CRIMINAL REVISION No. - 992 of 1994 Revisionist :- Rajendra and others Opposite Party :- State of U.P.
Counsel for Revisionist :- S.N. Chaturvedi,J.N. Chaturvedi,S.K. Yadav,Sheo Ram Singh Counsel for Opposite Party :- A.G.A
Hon'ble Daya Shankar Tripathi,J.
Heard Sri S.K. Yadav, learned counsel for the revisionists and learned A.G.A for the State.
This criminal revision has been preferred against the judgment and order dated 08.07.1994 passed by Vth Additional District & Sessions Judge, Azamgarh in Criminal Appeal No.52 of 1993 (Rajendra and others Vs. State of U.P.), by which criminal appeal was partly allowed and they were sentenced under Section 325/34 I.P.C. with imprisonment for a period of six months and fine of Rs.200/-, in default of payment of fine one month's simple imprisonment.
Facts giving rise to this criminal revision, in brief, are that complainant Smt. Dharma Devi wife of Dharmraj Yadav, resident of Village Hathnaura Khurd, Police Station Phulpur, District Azamgarh, orally informed at the police station that accused-persons Rajendra, Kishor, Bhorai and Raja Ram want to grab her property. Relating to the said matter, aforesaid accused persons on 01.11.1988 at 01.30 P.M. abused the complainant and threatened to kill her. On the objection raised by the complainant, accused persons Rajendra, Kishor, Bhorai had committed MAARPEET with kicks, fists, LATHI and DANDA, on the exhortation made by accused - Raja Ram. This incident has been seen by the villagers and complainant's relatives and they have intervened.
On the basis of aforesaid oral complaint of the complainant, Case Crime No.164 of 1988, under Sections 323, 504, 506 I.P.C. was registered in Police Station Phulpur, District Azamgarh. Investigation was taken up by the Investigating Officer and after completing the investigation, charge sheet under Sections 323, 325, 504, 506 I.P.C. was submitted by the Investigating Officer against all the accused persons.
Charges under Sections 323, 325, 504 and 506 I.P.C. were framed by the trial court against accused persons. Accused persons denied from the charges and claimed for trial.
P.W.-1 Dharma Devi (complainant), P.W.-2 Ram Nath (eye- witness), P.W.-3 Constable Keshari Nandan Shahi, P.W.-4 Sri Ram Niranjan Shukla (Investigating Officer), P.W.-5 Dr. N.K. Jaiswal and P.W.-6 Dr. S.N. Singh were examined. Statements of accused persons under Section 313 Cr.P.C. were recorded by the trial court, in which the accused persons stated that they have been falsely implicated. D.W.-1 Dr. Rajpati Ram and D.W.-2 Jeevan Lal were examined on behalf of the accused persons.
After giving opportunity of hearing to both the parties, judgment and order dated 28.09.1993 was passed by learned trial court in Criminal Case No.125 of 1993, State Vs. Rajendra and others, by which accused Raja Ram was acquitted from the charges under Sections 323, 325/34, 504 and 506 I.P.C. and accused-persons Rajendra, Kishor and Bhorai were convicted under Sections 323 and 325/34 I.P.C. and sentenced with rigorous imprisonment of six-six months under Section 323 I.P.C. and one-one year under Section 325/34 I.P.C.
Being aggrieved from the aforesaid judgment and order dated 28.09.1993, Criminal Appeal No.52 of 1993 was preferred by Rajendra, Kishor and Bhorai, who were convicted by the trial court. Aforesaid criminal appeal was decided vide order dated 08.07.1994, passed by Vth Additional District and Sessions Judge, Azamgarh by which appeal was partly allowed and appellant/accused Rajendra, Kishor and Bhorai were acquitted from the charge under Section 323 I.P.C. and their conviction under Section 325/34 I.P.C. was affirmed and they were sentenced to undergo rigorous imprisonment for a period of six-six months and fine of Rs.200/- each and in default of payment of fine one month's additional simple imprisonment was imposed. It is this impugned judgment and order dated 08.07.1994, passed by the lower appellate court, which is under challenge to this criminal revision.
Learned counsel for the revisionists has not argued on the point of conviction recorded against the revisionists. He has advanced his submissions only on the point of sentence imposed against the revisionists. He submitted that protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. He further submitted that the revisionists are aged about 61 years, 83 years and 50 years respectively, they are poor persons having occupation of agriculture and there is no previous criminal history of the revisionists, hence the benefit of Section 4 of Probation of Offenders Act, 1958 should have been provided to the revisionists, by learned trial court and learned appellate court, but both the courts below have committed legal error by refusing the benefit of probation to the revisionists. Hence, the criminal revision should be allowed. Learned A.G.A. has opposed for granting probation to the revisionists, but he could not dispute the aforesaid facts, as submitted by the learned counsel for the revisionists.
Considering the aforesaid facts and circumstances of the case, there is force in the arguments submitted by the learned counsel for the revisionists. No useful purpose will be served, if the revisionists are sent to jail after 30 years from the date of occurrence. It appears to be just and appropriate that the revisionists/accused may be extended the benefit of probation under Section 4 of the Probation of Offenders Act, 1958. Hence, this criminal revision is liable to be partly allowed.
Accordingly, this criminal revision is partly allowed. Conviction order passed against the revisionists is hereby confirmed. The order of sentence passed by learned trial court and learned lower appellate court against the revisionists are hereby set aside. Let the revisionists/accused be released under Section 4 of Probation of Offenders Act on furnishing two sureties and personal bond to the satisfaction of the trial court for a period of one year with condition that they will maintain peace and good conduct. If they violate the conditions of probation and called upon by learned trial court, they will have to appear there and learned trial court will pass fresh order of sentence against the revisionists/accused, after affording opportunity of hearing to them.
The revisionists/accused are directed to appear before the trial court on 05.02.2019.
Let a copy of this judgment and record of the trial court be sent back forthwith.
Order Date :- 19.12.2018 atul