Hakim Singh vs State Of U.P.
2017 Latest Caselaw 5853 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
In Chamber 
 
Case :- CRIMINAL REVISION No. - 865 of 1996
 

 
Revisionist :- Hakim Singh
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- R.K. Srivastava,Pankaj Dwivedi
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble J.J. Munir,J.

This criminal revision is directed against the judgment and order of Shri Yashpal Lukadia, the then 11th Additional Sessions Judge, Agra dated 07.06.1996 in Criminal Appeal No. 65 of 1995 dismissing the appeal of the revisionist Hakim Singh preferred from a judgment and order of Sri S.C. Garg, the then IXth Additional Chief Judicial Magistrate, Agra dated 22.07.1995 convicting the revisionist under Section 332 IPC and sentencing him to suffer six months rigorous imprisonment with a fine of Rs. 200/- and further convicting him for an offence punishable under Section 147 IPC, wherefor a sentence of 6 months rigorous imprisonment has been awarded, in addition to which fine of Rs. 200/- has been imposed. Both sentences have been ordered to run concurrently.

The case of the prosecution is that on 14.06.1986 at about 6:00 in the evening hours the complainant Gautam Singh, a forest guard along with his companion Bharat Singh Pal, another forest guard were on their beat in the Kunwer Khera Forest Block when they discovered stumps of trees that had been recently cut away. Both the forest guards reached fields located between Mungawali Forest Block and Kunwar Khera, where pumping sets to irrigate fields are located. There they found that two brick-worked furnaces/ovens were being set up. The forest guards found that near one of the contraptions wood from the fallen trees in the forest was lying stocked (presumably to fire the furnaces/ovens). Both the forest guards inquired the name of persons present there who identified themselves as Bhagwan Singh, Ram Sanehi, Hakim Singh, Janak Singh and Rajole. The complainant guards repeatedly asked these men as to why they had cut away forest wood which immediately lead to a quarrel with the guards. The forest guards attempted to take into possession the forest wood from these natives of the village including the revisionist, whereupon the guards were assaulted with Lathis in consequence of which the complainant-forest guard suffered head injuries. It is alleged that the complainant ran for his life. His bicycle bearing Frame No. RMI636159 and a HMT watch were left behind at the place of occurrence.

The case of the prosecution further is that complainant attempted to inform his immediate administrative superior but he was not available at station. Therefore, on the following day i.e. 15.06.1986 a written first information report bearing Ex. Ka-1 was handed over at the police station concerned on the basis of which a chik FIR Ex. Ka-2 came to be registered giving rise to case crime no. 20 of 1986, under Sections 147/132 IPC, P.S. Khera Rathore, District Agra.

After investigation the police submitted a charge sheet against all the accused. The learned Magistrate after taking cognizance tried all the accused including the revisionist, convicting and sentencing them in the manner already detailed. The conviction and sentence of the revisionist have been affirmed in appeal leading him to prefer the instant revision.

The revision was admitted to hearing only on the question of sentence and, therefore, a limited rule came to be issued by this Court confined to the sentence alone vide order dated 26.06.1996. Thus, the revision is being heard limited to the question of sentence. This revision has come up for hearing more than 21 years after it was admitted.

Learned counsel for the revisionist Sri Pankaj Dwivedi has strongly urged that it is a case where the revisionist should be admitted to the benefit of probation under Section 4 of the Probation of Offenders Act, 1958. He has submitted that the revisionist is now aged about 72 years. He has no criminal history and the sentence awarded is six months R.I. on each count with a fine of Rs. 200/-. Sri Dwivedi submits that having regard to the circumstances of the case including the nature of the offence and the character of the offender, who as already said has no criminal history, it is a fit case to release him on probation of good conduct.

It may be gainful to refer to the provisions of Section 4(1) of the Probation of Offenders Act, 1958 which are being quoted and in extenso:

"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."

A perusal of the record shows that the incident found to have taken place by the courts below happened in the native village of the revisionist on the discovery of some forest wood in his possession and that of his companions by two forest guards. An altercation has been held to have taken place between the two forest guards, the revisionist and his companion- co-accused. No doubt the courts below have found a case of voluntary causing hurt to deter a public servant from duty established on the basis of medico-legal and other evidence on record but none of the injuries suffered by the complainant have been found to his head as reported in his complaint/FIR. There is also one circumstance which has bearing on the nature of the offence that is otherwise punishable under Section 332 IPC. There is no recovery of any forest wood from the revisionist or any of his co-accused. It is for the said reason that no offence under the Forest Act has been registered much less charged. The nature of the offence found proved ultimately remains one punishable under the Penal Code with no case that revisionist violated the Forest Act which is a law relating to conservation of environment, and, violation whereof would catapult the nature of the offence into a generically different category. In the latter case a strict approach to curb the menace of depleting forest cover has to be adopted; that is certainly not the case here. So much for the nature of the offence.

As for the character of the offender he is a apparently a rustic living in his native village located on the fringes of a forest. He has no criminal history, a fact not at all controverted on behalf of the State. He is thus a person who can be reformed and would cease to be a nuisance to society- an object to achieve which benefit of probation under the Act of 1958 is countenanced. The revisionist in fact in all these 21 years would have already reformed as no repetition of the same kind of offence or any other kind of offence has been brought to the notice of this Court. The purpose of release of a convict on probation of good conduct is, in nature, a preventive measure which seeks to save the offender from evil effect of institutional incarceration and offers him an opportunity of reformation within the community itself as held in Dasappa vs. State of Mysore, AIR 1965 Mys 224.

Their Lordships of the Supreme Court in the State of Himachal Pradesh vs. Dharam Pal (2004) 9 SCC 681 while dealing with grant of probation to offenders in cases of the offence to commit rape disapproved grant of that benefit looking to the nature of the offence being an offence against women but laid down that provision as to release on probation is extended to reform persons who can be reformed and would cease to be nuisance in the society. Paragraph 6 of the report reads thus:

"6. According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if translated into the act leads to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and honour. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. The Act is intended to reform the persons who can be reformed and would cease to be a nuisance in the society. But the discretion to exercise the jurisdiction under Section 4 is hedged with a condition about the nature of offence and the character of the offender. Section 6 of the Act makes the provisions applicable in cases where offenders are under 21 years of age, as restrictions on imprisonment of offenders have been indicated in the said provision. In a case involving similar facts, this Court in State of Haryana vs. Prem Chand upheld the judgment of the High Court which extended the benefit of provisions under Section 4 of the Act. Considering the peculiar circumstances of the case and taking into account the fact that on the date of occurrence the accused was less than 21 years old, we feel this is a case where no interference is called for with the judgment of the High Court, though some of the conclusions arrived at by the High Court do not have our approval. The appeal fails and is dismissed."

Accordingly, this revision succeeds and is allowed. The sentence awarded to the revisionist stands modified. It is ordered that revisionist Hakim Singh be released on probation under Section 4 of the U.P. Probation of Offenders Act on his executing a personal bond in the sum of Rs. 5000/- on the condition that he will maintain peace and be of good behaviour for a period of one year. A personal bond may be filed to the satisfaction of the Trial Court. Upon breach of the aforesaid conditions, the revisionist would be taken into custody to serve out the sentence awarded to him.

Learned counsel for the revisionist submits that revisionist will appear before the trial court within three months of date. He is ordered to do so.

Let this order be certified to the Trial Court forthwith. Records of the case summoned shall also be sent back likewise.

Order Date :- 27.10.2017

Imroz