[2023:RJ-JP:20893]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 1/1989
1. Nanag Ram son of Shri Mam Raj, aged 81 years,
2. Mahavir son of Nanag Ram,
Both residents of Shahjahanpur, Police Station Shahjahanpur,
District Alwar.
----Accused-Appellants
Versus
The State of Rajasthan
----Respondent
Connected With S.B. Criminal Appeal No. 468/1988
1. Shri Krishan @ Ram Kishan S/o Prabhatilal Saini,
2. Shri Kanti son of Shri Phool Chand swamy, Both residents of Shahjahanpur, District Alwar
----Accused-Appellants Versus The State of Rajasthan
----Respondent For Appellant(s) : Ms. Gayatri Rathore, Sr. Adv. with Mr. Ran Singh Mr. Mohit Balwada with Ms. Bhavana Choudhary Mr. Sunil Shekhawat Ms. Anjum Parveen Salawat For Respondent(s) : Mr. Imran Khan, P.P.
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment / Order 04/09/2023 These criminal appeals have been preferred by the four accused-appellants namely Nanag Ram, Mahavir, Shri Krishan @ Ram Kishan & Shri Kanti.
(Downloaded on 11/11/2023 at 07:46:19 PM) [2023:RJ-JP:20893] (2 of 6) [CRLA-1/1989] As per the report dated 16.08.2023 furnished by the Station House Officer, Police Station Shahjahanpur, District Bhiwadi, Rajasthan, Nanag Ram & Shri Kanti have expired. The report is accompanied with a certificate dated 16.08.2023 furnished by the Sarpanch, Gram Panchayat Shahjahanpur and death certificate dated 27.04.2022 of Kanti.
In view thereof, these appeals stand abated qua Nanag Ram & Shri Kanti and are, now, confined to the accused-appellants- Mahavir & Shri Krishan @ Ram Kishan (for brevity "the appellants").
These criminal appeals have been preferred against the judgment dated 30.11.1988 passed by the learned Additional Sessions Judge No.2, Alwar (hereinafter referred to as "the learned trial Court") in Sessions Case No.39/83 (28/82) whereby, while convicting the appellants, they have been sentenced as under:-
(i). Under Section 148 IPC:- 1 year's rigorous imprisonment with fine of ₹100/-; in default thereof, one month's rigorous imprisonment.
(ii). Under Sections 326 & 326/149 IPC:- 3 years' rigorous imprisonment with fine of ₹200/-; in default thereof, two months' rigorous imprisonment.
(iiI). Under Sections 324 & 324/149 IPC:- 1 year's rigorous imprisonment with fine of ₹100/-; in default thereof, one month's rigorous imprisonment.
All the sentences to run concurrently.
(Downloaded on 11/11/2023 at 07:46:19 PM) [2023:RJ-JP:20893] (3 of 6) [CRLA-1/1989] The relevant facts in brief are that a written report (Exhibit- P-1) dated 15.04.1982 was lodged by Shri Rajendra Singh (PW-2) with the Police Station Shahjahanpur, Alwar stating therein that on that very day, at about 4:00 PM, when he was sitting in his residential house alongwith his father-Heeralal, mother & sister, the appellants alongwith co-accused persons armed with deadly weapons entered the house and inflicted grievous as also simple injuries on their person. Thereupon, an FIR No.22/82 (Exhibit-P-2) came to be lodged under Sections 147, 148, 149, 307, 457 & 34 IPC. The police after investigation filed charge-sheet against the appellants and co-accused persons. Vide order dated 19.07.1982, the learned trial Court framed charges against the appellants under Section 148, 307, 307/149, 326, 326/149, 324, 324/149, 323, 323/149, 452 & 452/149 IPC. The appellants pleaded not guilty and demanded trial. After conducting trial, the appellants have been convicted and sentenced by the learned trial Court vide its judgment dated 30.11.1988 as stated hereinabove.
Eschewing merits of the case, learned Senior Counsel for the appellant-Mahavir and learned counsel for the appellant-Shri Krishan @ Ram Kishan, would submit that they, who are aged 70 years and 65 years respectively with no previous conviction, are facing trauma of this criminal case for last about 41 years and would feel contended if they are extended benefit of probation. They submit that in view of nature of grievous injuries received by injured-S/Shri Heeralal & Rajendra Singh on non-vital part of their body, i.e., right wrist and left wrist respectively, they may be extended benefit of probation. They, in support of their submissions, relied upon following judgments:- (Downloaded on 11/11/2023 at 07:46:19 PM) [2023:RJ-JP:20893] (4 of 6) [CRLA-1/1989]
1. Fulchand Gope & Anr. versus State of Jharkhand: (2011) 12 Supreme Court Cases 514,
2. Bhupendra Singh & Anr. versus State of Rajasthan: 2008 (2) Cr.L.R. (Raj.) 1219.
Per contra, learned Public Prosecutor opposed the prayer. Heard. Considered.
In the incident more than 41 years old, the injured-S/Shri Heeralal & Rajendra Singh have received grievous injuries on their wrist, i.e., non-vital part of the body. The appellants are aged about 70 years & 65 years respectively as on date with no previous conviction.
Their Lordships have held, in case of Fulchand Gope & Anr. (supra), as under:-
"4. The factual scenario, as noted above, goes to show that the occurrence took place over a sudden quarrel and the accused persons acted in the course of that quarrel and did not take any undue advantage. That brings the case under Section 304 IPC, so far as accused Gauri Gope is concerned. But so far as others are concerned, it is to be noted that they had not assaulted either the deceased or the informant. But their presence was there and to a certain extent, their indirect participation by asking Gauri Gope to teach the deceased a lesson, and also of pelting stones. That being so, in peculiar circumstances of the case, the conviction of Gauri Gope would be appropriately under Section 304 Part II IPC. So far as others are concerned, it would be under Section 326 read with Section 34 IPC.(Downloaded on 11/11/2023 at 07:46:19 PM)
[2023:RJ-JP:20893] (5 of 6) [CRLA-1/1989]
6. Custodial sentence of eight years' rigorous imprisonment, so far as Gauri Gope is concerned, would suffice, while in the case of the other accused persons, it will be three years' rigorous imprisonment. Since the custodial sentence is for three years, we extent the benefits under the Probation of Offenders Act so far as they are concerned. The necessary terms shall be fixed by the trial court before whom the accused persons concerned shall appear without further notice on 20-1-2004 to receive orders."
Thus, in the aforesaid case, in view of sentence of three years' rigorous imprisonment awarded to the accused-appellants under Section 326 read with Section 34 IPC, they were extended benefit of probation.
In a case of conviction under Section 326 IPC, in view of the injured having sustained only one grievous injury on the shoulder by a sharp edged weapon, i.e., not on vital part of the body and after considering a number of precedential law rendered by the Hon'ble Supreme Court of India, a co-ordinate Bench of this Court has, in case of Bhupendra Singh & Anr. (supra), extended the accused-appellant benefit of Section 4 of the Probation of Offenders Act, 1958 (for brevity "the Act of 1958"),.
As also observed, in the present case, there is only one grievous injury suffered by each of the two persons on their non- vital party of the body, the appellants have been facing the trauma of this criminal case for last about 41 and a half years with no previous conviction, this Court deems it just and proper to extend (Downloaded on 11/11/2023 at 07:46:19 PM) [2023:RJ-JP:20893] (6 of 6) [CRLA-1/1989] them benefit of Section 4 of the Act of 1958 in the backdrop of aforesaid precedential law.
Resultantly, while maintaining the conviction of the appellants, they are released on probation under Section 4 of the Act of 1958. The appellants shall file personal bonds in the sum of ₹50,000/- together with two sureties each of ₹25,000/- for a period of two years to the satisfaction to the learned Additional Sessions Judge No.2, Alwar with a further stipulation that they shall appear and receive sentence when called upon during the probation period and in the meantime, to keep peace and be of good behaviour.
The appeals are disposed of in the aforesaid terms.
(MAHENDAR KUMAR GOYAL),J Manish/278-279 (Downloaded on 11/11/2023 at 07:46:19 PM) Powered by TCPDF (www.tcpdf.org)