1. This revision has been preferred against the judgment and order dated 5.2.1990 passed by Vth Additional Sessions Judge, Fatehpur in Criminal Appeal No. 2 of 1989 partly allowing the appeal of appellants modifying the judgment and order dated 4.1.1989 passed by IIIrd Additional Munsif Magistrate, Fatehpur to the extent that the revisionists were acquitted for the offence under Sections 504 and 506 IPC but the conviction of the appellants under Sections 323/149 and 147 IPC sentencing them to six months and one year's R.I. respectively and to pay fine of Rs. 200 with default stipulation was confirmed.
2.The epitome of the facts and evidence unfolded during the course of trial which needs a necessary mention for the limited purpose of deciding the instant revision petition and emanating from record is that on 22.7.1983 at 11 A.M. when the complainant Bittan S/o Kripal R/o village Qasimpur Katra, P.S. Hathgaon, District- Fatehpur was going to irrigate his field for planting paddy and his brothers Rachchpal, Desh Raj and nephews were ploughing their fields nearby, at the same time, accused who belonged to his village, namely, Sukhlal, Prithvi, Mangara, Buddha, Raman and Suresh having lathis in their hands hurled abuses to the complainant and when the complainant and others saw that the accused were coming to assault them they ran towards Sarain Idris. As soon as they reached the boundary of the village, the accused Sukhlal and Prithvi attacked the injured with lathi on his back. The village Pradhan of the Gram Sabha and Mangal rescued him meanwhile the other co-accused were surrounding him. Suddenly, the complainant's brother and nephew, mentioned above, also reached the place of occurrence and saved him. The accused threatened the complainant that if he will lodge the complaint at the police station they will not spare him. Due to this fear and threatening the complainant hid himself secretly and came to the Fatehpur court and handed over his complaint to the Station Officer, Hathgaon and got the case written on the basis of the written FIR. The case was registered on 13.7.1983. The motive behind the assault was that the accused and the complainant had litigation regarding their fields for which the complainant had won the case and the accused had lost the case thus the complainant was in possession over the fields, therefore, the accused were at inimical terms with the complainant.
3.After investigation the Investigating Officer submitted charge sheet against the accused.
4.Charges were framed against the accused who pleaded not guilty and sought for trial.
5.The prosecution examined P.W.1 Bittan, complainant, P.W.2 Desh Raj, eye witness, P.W.3 Investigating Officer, S.I. Girja Shankar Mishra, P.W.4 Dr. V.K. Srivastava, Medical Officer and P.W. 5 Constable Moharrir Riazul Haq.
6.The accused in the statement under Section 313 Cr.P.C. denied the prosecution allegations and stated that they have been falsely implicated due to enmity and party bandi of the village and the statements of Desh Raj was filed along with other documents in defence.
7.After perusal of the evidence of both the parties, the learned lower court found the accused Sukhlal, Magra, Raman, Prithvi, Buddha and Suresh guilty and convicted them under Sections 147, 323, 504, 506 IPC as aforesaid.
8.Feeling aggrieved, the accused preferred Criminal Appeal No.2 of 1989 which was dismissed with certain modifications. The accused were acquitted under Sections 504 and 506 IPC and remaining sentence were upheld.
9.I have heard learned counsel for the parties and perused the evidence.
10.The conviction as it stands is under Sections 147 and 323 I.P.C. read with Section 149 I.P.C. The learned counsel for the revisionist has contended with some amount of vehemence that the revisionist is a poor man, the learned lower courts did not record any cogent reason to negate their plea to release them on probation.
11.Thus being the position on record now, the short and significant question, though important, that arises for determination is, as to whether that prescription of minimum sentence can debar the accused to claim benefit of probation or not.
12.At the very outset what cannot possibly be disputed here is that the object under lying the provisions of Section 4 and 6 of the Probation of Offenders Act, 1958 and Section 360 and 361 Cr.P.C., broadly speaking, is that first offenders be not sent to jail for the commission of less serious offences, on account of grave risk to their attitude to life to which they are likely to be exposed as a result of their association with harden and habited criminal in jail. In such circumstances might well attract them towards a life of crime instead of reforming them. This would clearly make more harm than to reform them, and for that reason, it would perhaps also be to an extent a prejudicial to the larger interest of the society as a whole. Perhaps that was the reason that the mandatory injuction against imposition of sentence of imprisonment has been embodied in Section 6 of the Probation of Offenders Act. This mandate is inspired by the desire to keep the young delinquent/first offender avail from the possibility of association of close contact with harden criminals and evil intents, therefore, these beneficial provisions have to be liberally construed.
13.As is amply clear that Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition whereas Section 361 Cr.P.C. points "Where in any case the Court could have dealt with an accused person under Section 360 Cr.P.C. or under the provisions of Probation of Offenders Act, 1958, but has not done so, it shall record in its judgment, the special reasons for not having done so."
14.Sequelly, Section 4 of the Probation of Offenders Act, 1958 postulates that 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 the opinion that having regard to the circumstances of the case including the nature of the offence and the character of offender, it is expedient to release him on probation on good conduct, then, not to anything contained in any other law for the time being enforced, the court may, instead of sentencing him at once to any punishment directs that he be released on his entering into a bond with or without sureties to appear and receive sentence when/then called upon during such period not exceeding three years as the court may direct and in the mean time to keep peace and maintain good behaviour.
15.The combined and meaningful reading of these provisions would reveal that non-obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have over riding effect, shall prevail if the condition depicted therein which fulfilled and the benefit of provision should be granted to the meaning thereby that the prescription of minimum sentence in a particular offence ipso facto is not a ground much less cogent to debar the benefit of probation to the convict if he is otherwise entitle to it.
16.The learned lower court has recorded the conviction but had failed to record reasons why the Court was reluctant in granting probation to the accused. The learned appellate court committed the same error and failed to record any reasons why probation was not granted to the accused persons.
17.The evidence adduced on behalf of the prosecution has been appraised by the lower court and has been re- appraised by the appellate court. The scope of revisional court is very limited and this Court will not enter into reappraisal of evidence. All the witnesses of the prosecution have categorically supported the prosecution version.
18.Bittan (P.W.1) has specifically named all the accused and said that they came armed with lathis and assaulted him. A perusal of the record shows that the learned lower court himself in the title of the judgment has mentioned the age of the accused Prithvi to be 21 years and Sukhlal to be 35 years meaning thereby that the present the age of the accused Sukhlal at present would be near about more than 60 years and the age of Prithvi who was 22 years at that time at present would be above 50 years of age. Sending this aged man Sukhlal who is about 60 years to jail at this juncture would not be proper and I think there is no legal impediment to release the revisionist on probation.
Therefore taking into consideration the period of agony of protracted trial, totality of other facts and circumstances emanating from the record as indicated hereinabove, no useful purpose would be served in sending the revisionists again to jail to serve out the remaining period of sentence. Thus the revision needs to be partly allowed.
Revision is partly allowed. The conviction of the accused is maintained. It is directed that the revisionists be released on probation on their furnishing personal bond ( within two months) in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the trial court, subject to the conditions that they will keep peace and be of good behaviour for a period of one year from the date of passing of this order but if they are found to be indulged in any illegal activity, the sentence awarded to them by the courts below shall stand revived.
Let the certified copy of this judgment be sent to the trial court for compliance.
Order Date:-11.9.2014 MT