Gayatri Devi vs State Of U.P.
2018 Latest Caselaw 1681 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 53								 A.F.R.
 

 
Case :- CRIMINAL REVISION No. - 1601 of 1990
 

 
Revisionist :- Gayatri Devi
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Jokhan Pd.,Pramod Kumar Singh,Saurabh Srivastava
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble J.J. Munir,J.

1. Heard Sri Pranshu Gupta, Advocate holding brief of Sri Pramod Kumar Singh, learned counsel for the revisionists and Sri Ajit Ray, learned A.G.A. appearing on behalf of the State.

2. This revision is directed against a judgment and order of Sri D.C. Srivastava, the then Sessions Judge, Basti dated 04.09.1990 in Criminal Appeal No.8 of 1990 dismissing the said appeal and affirming an order dated 27.01.1990 passed by Sri Pankaj Gaur, the then Munsif Magistrate-II, LCC, Basti convicting and sentencing each of the revisionists in the manner detailed below:-

Section

Sentence

Fine imposed (in Rs.)

Default Sentence

323/34 IPC

-

6 months' RI

325/34 IPC

One year's RI

-

-

3. On 30.09.1990, this revision was admitted to hearing on the question of sentence and rule limited to sentence was issued. Pending trial the revisionists were released on bail. Thus, this revision has come up for hearing limited to a rule on the sentence awarded. The question of validity of the conviction is, therefore, not examined.

4. The prosecution story may, however, be briefly recapitulated. The prosecution story goes that the parties are natives of a certain village Pure Tilak falling under the local limits of Police Station Chhavani, District Basti. On 27.02.1982 at 4.00 p.m., the revisionists made a move to remove something described in vernacular as 'Tati' on the house of the first informant, to which the informant objected. In retaliation, the revisionists beat her up with sticks (Lathi-Danda). She raised alarm, in response to which her daughter Kitaba Devi, daughter-in-law Ramadhari and grandsons Ganga and Jamuna came to rescue her. They intervened and also suffered thrashing at the hands of the revisionists wielding sticks (Lathi-Danda). An oral information was given at the Police Station, where after an NCR was registered on 27.02.1982 at 6.30 p.m. The case was investigated and at the conclusion of it, a charge sheet against the revisionists for offences punishable under Sections 323, 325 and 506 IPC was filed. Charges against the revisionists were framed for the aforesaid offences, to which they pleaded not guilty and claimed to be tried.

5. It appears that in their statements under Section 313 Cr.P.C., the stand taken was that the revisionists have been falsely implicated to pre-empt them in taking action as the first informant wanted to occupy the revisionists' land purchased through a sale deed. The revisionists did not enter defence.

6. The learned Magistrate after considering the oral and documentary evidence, and, medico-legal evidence, found charges under Sections 323/34 and 325/34 IPC proved by the prosecution beyond reasonable doubt whereas no conviction was recorded for the charge under Section 506(2) IPC, as nothing was said about that charge.

7. The Sessions Judge has construed it to mean an acquittal by implication, against which no revision has been filed by the State or the complainant. Thus, there is no reason to take a different view. The learned Sessions undertook a plenary and copious review of all evidence on record appreciating the same in meticulous detail afresh - in the manner what a court of appeal would be expected to do. The learned Sessions Judge found himself in agreement with the Trial Court and dismissed the appeal affirming the conviction and sentences imposed.

8. Aggrieved the present revision has been filed.

9. Learned counsel for the the revisionists has confined his submissions to the question of sentence on which this revision was admitted and has pointed out that the revisionists are husband and wife, who are simple village folk engaged in the occupation of farming. They are law abiding citizens and do not have a criminal history. Revisionist no.1, Gayatri Devi is aged about 59 years and revisionist no.2, Kapil Deo is aged 64 years. Thus, one of them is already a senior citizen and the other is on the doorsteps of turning a senior citizen. It has been emphasized that the revisionists have never repeated any offence and are now part of the main stream of life where they are respectable members of the society.

10. Learned counsel for the revisionists submits that it was looking to the aforesaid features of the case that the two courts below even though convicting the revisionists of an offence under Section 325/34 IPC, going by the nature of the injury, imposed a sentence of one year in prison, where there was before the court the choice of maximum a term of seven years. Again, in the same vein it is pointed out that on the other count under Section 323/34 IPC the sentence imposed is of fine alone with no imprisonment. On the basis of this scaled down sentence imposed, the learned counsel for the revisionists, Sri Pranshu Gupta has very persuasively submitted that it is a case where this Court may consider releasing the revisionists on probation to maintain the peace and be of good behaviour under Section 4 of the Probation of Offenders Act, 1958.

11. In the context of this submission, it may be gainful to refer the provisions of Section 4(1) of the Probation of Offenders Act, 1958, which read 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 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."

12. A perusal of the record shows that the incident happened way back in the year 1982 when the revisionists were young people and the complainant/ opposite party also was a native of the same village. The dispute appears to have occurred on account of some misunderstanding between them which led them turn suddenly aggressive, and, to remove some kind of fence or some roof material from the informant's house. And, on her objecting to that as found by the courts below, the revisionists assaulted the informant and those in her family who came to her rescue employing sticks (Lathi-Danda). It appears to be for the worst, sudden aggression with emotions running high which does not betray the cold and calculating move of a criminal mind. The most noble of souls may sometime get into a turmoil of emotion and do an act that is crime; nevertheless, even for serious and heinous crime committed by howsoever good a person the law makes little or no allowance. However, Section 4(1) of the Probation of Offenders Act extends its umbrella of protection to redeem such persons giving them an opportunity to repent and reform where the sentence is not death or imprisonment for life. The criteria to invoke the provisions of Section 4(1) of the Probation of Offenders Act is based on the parameters what the statute specifically chooses to call "nature of the offence" and "character of the offender". These are the twin anchors of the wider criteria that the statute mentions as "circumstances of the case" as the sine qua non to the exercise of power under Section 4(1) of the Act last mentioned. The revisionists in the present case, no doubt, have committed an offence that involves violence and injury caused to another, but the same is one that is not inherently so depraved to shock the social conscious or otherwise a menace to society in its ramification. It is, indeed, crossing the boundaries of law by an otherwise law abiding citizen in a moment of frayed temper and high emotions. In fact, a look at Section 320(1) and 320(2) Cr.P.C. would show both the substantive offences under Sections 323 and 325 IPC are given a concession by the law to be offences that are compoundable by the parties, one without leave of the court and other with permission of the court. This is an index of the legislative incident that unless the act constituting the offence is for some particular reason not very depraved, even for the offence punishable under Section 325 IPC, a forgiving or reconciling victim can permit the offender to compound that offence.

13. Considering the aforesaid approach of the law to this offence, and, the facts constituting the background and the circumstances of the case in the opinion of the Court certainly makes the nature of the offence one that qualifies for extension of the benefit of probation.

14. So much for the nature of the offence. About the character of the offender, there is nothing on record to show that they are criminals, bullies or even the kind of those who attempt to establish a domination of sorts over others where they live. The revisionists have not been reported to have any criminal history. In the present case and also pending appeal, and, still earlier during trial they have been on bail. During the said period of time, there is no representation made to the court that they misused the said liberty. Rather, it appears that now the revisionists, as already said, being senior citizen or near senior citizen are completely different persons from what they were or might have been way back in the year 1982 when the offences are said to have been committed. Passage of time may not mitigate the rigor of their guilt, but it is certainly a relevant factor in the opinion of this Court to decide upon the sentence to be meted out to them. At this age in life the revisionists who are otherwise law abiding citizens, institutional incarceration in jail for a year is certainly not in the considered opinion of this Court, even reasonable justice let alone the best justice.

15. 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.

16. The Hon'ble Supreme Court in the Himachal Pradesh vs. Dharam Pal (2004) 9 SCC 681 while considering the issue of grant of probation of offenders in cases of the offence of rape frowned upon extension of that benefit looking to the nature of the offence being an offence against woman but laid down that the idea behind probation is to reform persons who can be reformed and would cease to be nuisance in society. It has been held 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."

17. Thus, having regard to the circumstances of the case in hand, including the nature of the offence and the character of the offenders, this Court is of opinion that the revisionists deserve to be extended the benefit of Section 4(1) of the Act.

18. Accordingly, this revision succeeds and is allowed. The sentence awarded to the revisionists stand modified. It is ordered that the revisionists be released on probation under Section 4 of the U.P. Probation of Offenders Act on each of them executing a personal bond in the sum of Rs.10,000/- on the condition that they will maintain the peace and be of good behaviour for a period of one year. In case of breach of the condition aforesaid by any of the revisionists, the revisionist in breach shall be taken into custody to serve out the sentence awarded to him/ her.

19. Personal bonds shall be filed to the satisfaction of the Trial Court. Upon execution of personal bond as directed hereinbefore, bail bonds executed by the revisionists in connection with bail pending revision shall stand cancelled and sureties, if any, discharged. The revisionists are directed to appear before the Trial Court within three months of date to comply with this order. It is further directed that the fine imposed by the courts below shall be deposited within three months from the date of this judgment, failing which it will be recovered in accordance with law.

Order Date :- 24.7.2018

Anoop