Kallu vs State Of U.P.
2021 Latest Caselaw 675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 31
 

 
Case :- CRIMINAL APPEAL No. - 573 of 1997
 
Appellant :- Kallu
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.P.Mishra,Farooq Ayoob
 
Counsel for Respondent :- Govt.Advocate,Shraddha Verma, Shravan Kumar 'Verma'
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. The instant criminal appeal has been preferred against the judgment and order dated 08.09.1997, passed by IIIrd Additional Sessions Judge, Pratapgarh, in Sessions Trial No.423 of 1994, arising out of Case Crime No.314 of 1993, P.S.-Baghrai, District-Pratapgarh, whereby the appellants-Kallu and Bhallu have been convicted and sentenced for four years rigorous imprisonment each for offence under Section 308 I.P.C.

2. The prosecution case, in brief, is that on 10.11.1993, at about 6:00 p.m., there were some hot talk ensued, regarding the property disputes between the appellants along with co-accused-Lala and Banne and Hasena Bano (P.W.-2) along with Achhe (P.W.-1). Meanwhile, the appellants beat Hasena Bano (P.W.-2) by lathi, due to which, she became unconscious. Hasena Bano (P.W.-2) was carried by Achhe (P.W.-1) at Police Station-Baghrai where P.W.-1 filed a written report. Hasena Bano (P.W.-2) was sent for medico legal examination and treatment to District Hospital, Pratapgarh.

3. Dr. C. P. Sharma (P.W.-4) on 10.11.1993 at about 7:40 p.m. examined the injuries of Hasena Bano (P.W.-2) and found the following injuries on her body : :

"1. Lacerated wound 5 cm x 1.0 cm left parietal of scalp 0.8 cm above from left ear.

2. Lacerated wound 2 cm x .5 cm on left parietal bone of scalp 2 cm above from injury no.1."

4. On the same day, Dr. C. P. Sharma (P.W.-4) also examined the Achhe Miya (P.W.-1) and found the following injuries on his body :

"1. Abrasion 1.0 cm x .5 cm on left wrist joint.

2. Contusion 5 cm x 2 cm on left cheek .1 cm below from left eye brow."

5. Hasena Bano (P.W.-2) was referred to Medical College, Allahabad for her treatment. After investigation, charge sheet was filed against the appellants as well as co-accused Lala and Banney and trial Court, after conclusion, convicted and sentenced the co-accused, Lala and Banney for three months imprisonment each for offence under Section 323 I.P.C. and also convicted and sentenced the appellants-Kallu and Bhallu for four years rigorous imprisonment each for offence under Section 308 I.P.C.

6. Aggrieved by the said appeal, the appellants have preferred this appeal.

7. Heard Sri Faruq Ayub, learned counsel for the appellants and learned A.G.A. for State and Ms. Neeta Singh Chandel, learned Advocate holding brief of Ms. Shardha Verma, learned counsel for complainant.

8. Learned counsel for the appellants submits that the appellants are innocent and have been falsely implicated but they are not pressing the appeal on merit of this case. Learned counsel further submits that only two injuries were found on the person of the Hasena Bano (P.W.-2) and two injuries were found on the person of Achhe (P.W.-1) for which four accused were named in the F.I.R. Learned counsel further submits that no specific role was assigned to any of the accused. Learned counsel further submits that the learned trial Court convicted the appellants for offence under Section 308 I.P.C. and rest co-accused for offence under Section 323 I.P.C. Learned counsel further submits that both appellants are real brothers and neighbours to the complainant (P.W.-1). The occurrence was happened in 1993 and both the parties are related to each other having common ancestor. Learned counsel further submits that both the parties have settled all their disputes and have cordial relations between them. Learned counsel further submits that the compromise petition of both the parties could not be verified due to technical difficulties. Learned counsel further submits that the said offence is not punishable with life imprisonment. Learned counsel further submits that the appellants have no criminal history but trial Court did not grant any benefit of Probation of Offenders Act, 1958 to the appellants. Learned counsel further submits that the appellants may be granted benefit of Probation of Offenders Act, 1958 by adopting lenient view on the point of sentence.

9. Learned A.G.A. submits that since the appellants have no criminal history and both parties have compromised their disputes, he has no objection, if the benefit of Probation of Offenders Act, 1958 is given to the appellants.

10. Learned counsel appearing for complainant also submits that in view of better relationship of both the parties, the appellants may be granted benefit of Probation of Offenders Act, 1958.

11. Now a question arises whether appellants are entitled for benefit of Probation of Offenders Act or the sentence awarded by the trial Court is sufficient. In this case the appellants have been convicted by the trial Court only for the offence under section 308 I.P.C and have been sentenced only for maximum period of four years rigorous imprisonment. The prosecution has not produced any evidence that appellants were previously convicted. So it has to be seen whether the appellants are entitled for benefit of Probation of Offenders Act, 1958 or not.?

12. Section 3 of the Act confers power on the court to release certain offenders after admonition. The said provision is as follows:-

"3. Power of court to release certain offenders after admonition.--When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition.

Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4."

13. Section 4 of the Act deals with the powers of Court to release certain offenders on probation of good conduct which is as follows:-

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.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

14. Thus the philosophy of the Probation of Offenders Act, 1958 is reformative. Hon'ble Supreme Court in Ratan Lal v. State of Punjab AIR 1965 S.C. 444, while discussing the purpose and object of the Act, has observed in para no.4, which reads as follows:-

"4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act."

15. Discussing the object, reason as well as applicability of Probation of Offender Act,1958, in Uttar Pradesh, this Court in (2016) (94) ACC 208, Uma Shanker and others Vs. State of U.P. has observed in para Nos.7 to 9 as follows:-

"7. Before coming into force of the Central Act (Act No.20 of 1958),some States including U.P. had their own legislation regarding probation. The necessity of having a uniform law in this regard was felt. Hence, the Central Act, i.e. The Probation of Offenders Act, 1958 was passed, the Statement of Objects and Reasons wherein enacts as under.:-

"In view of the widespread interest in the probation system in the country this question has been examined and it is proposed to have a Central Law, which should be uniformly applicable to all States."

8. However, under sub-clause(3) of Section 1 of the Act, the Central Act was to come into force in a State on such date as the State Government may by notification in the Official Gazette appoint. Different dates were appointed for different parts of the State. Vide notification No.683/XXVI-2-80-500(25)-78, dated May 29, 1980 published in U.P. Gazette, Part I, dated 21st June 1980, page 848, the Central Act was made applicable to 15 districts of this State and with effect from 1.5.81 the Central Act became applicable to 35 more districts including the district 'Jaunpur' related to the instant case.

9. In the case of Hari Singh Vs. State of U.P. this Court has held that Central Act will be applicable in State of U.P. and Act 6 of 1938 will not apply after the date of notification."

16. Hon'ble Supreme Court in Ved Prakash Vs. State of Haryana, AIR 1981, SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with section 4 of Probation of Offenders Act,1958, has held as under:-

"The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act."

17. Admittedly, the said occurrence was happened on 10.11.1993 i.e. 27 years ago. From perusal of record, it transpires that in the year 1997, at the time of the statement, recorded under Section 313 Cr.P.C., the age of appellant-Kallu was recorded as 27 years, whereas the age of the appellant-Bhallu was recorded as 22 years, it means that at the time of occurrence, the appellant-Kallu was aged about 23 years whereas the appellant-Bhallu was aged about 18 years and at present they are aged about 50 and 45 years respectively.

18. According to learned counsel for the appellants and learned counsel appearing for the informant, the appellants have no criminal history and they have settled their disputes. In addition to above, no material has been placed by learned A.G.A. before this Court regarding previous conviction of the appellants. It is well settled principle of law that provision of law of Probation of Offenders Act, 1958 is beneficial legislation which has been made by Parliament for reformation of accused who is first offender as well as young person at the time of occurrence.

19. Considering the fact and circumstance of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the appellants.

20. Thus, the appeal is partly allowed. The impugned judgment and order passed by IIIrd Additional Sessions Judge, Pratapgarh in Session Trial No.423 of 1994 arising out of Case Crime No.314 of 1993, Police Station-Baghrai, District-Pratapgarh so far as it relates with the conviction of appellants is maintained, but the sentence is modified. Instead of sending the appellants-Kallu and Bhallu to jail, they are given benefit of Section 4 of the Probation of Offenders Act, 1958. They are directed to file two sureties bonds of Rs.20,000/- and personal bond of same amount to the effect that they shall maintain peace and good behavior and shall not commit any offence during the period of two year. The bonds aforesaid be filed by them within two months from the date of judgment before District Probation Officer, Pratapgarh.

21. Copy of this judgment along with lower court record be sent to the District Judge, Pratapgarh with immediate effect for compliance.

Order Date :- 12.1.2021

Mahesh