Ram Lakhan And 2 Ors. vs State Of U.P.
2022 Latest Caselaw 10207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1429 of 2003
 

 
Appellant :- Ram Lakhan And 2 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- N.C.Upadhyay,Upendra Prakash Pathak
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Upendra Prakash Pathak, learned counsel for the appellants and Sri Rajesh Kumar Singh, learned A.G.A. for the State.

2. From a perusal of the record, it is revealed that vide order dated 31.03.2022, passed by this Court the instant criminal appeal in respect of appellant no.1, Ram Lakhan and appellant no.3, Haridwari have already been abated.

3. By means of the instant appeal, the appellants have assailed the judgment and order dated 11.08.2003 passed by the learned Additional Sessions Judge, Court No.30 Barabanki in Sessions Trial No.186 of 1992 arising out of Case Crime No.473 of 1990, under Sections 343/34 and 506(2) of the Indian Penal Code (hereinafter referred to as "I.P.C."), Police Station Kotwali, District Barabanki, whereby the appellants have been convicted and sentenced for one year's rigorous imprisonment each for the offene under Section 343/34 I.P.C. They have also been convicted and sentenced for three years' rigorous imprisonment each for the offene under Section 506(2) I.P.C. All the sentences are directed to run concurrently.

4. The prosecution case, in brief, is that on 12.07.1990 the first informant, Smt. Munni Devi got a case lodged at Police Station Kotwali, Barabanki stating therein that her son Prem Sagar is a labourer who works in Lucknow and resides at Lovekush Nagar, Awas Vikas Colony Barabanki. He had come to Barabanki Court to attend a case along with Ram Niwas and Chedu. On 11.07.1990 at about 12:00 P.M. he was caught hold by someone and he was taken to a nearby office of Gramin Bank by a Car bearing No.MRC 7788.

5. On the basis of aforesaid written report Ext. Ka-1, first information report, Ext. Ka-6 came to be lodged as 473 of 1990, under Sections 343/34 and 506(2) I.P.C., Police Station Kotwali, District Barabanki.

6. Investigating Officer, undertook the investigation. He recorded the statements of witnesses under Section 161 Cr.P.C. He also visited the place of occurrence and prepared site plan thereof as Ex. Ka-3 and upon conclusion of investigation, he submitted the charge sheet as Ex. Ka-5 against the appellants.

7. The surviving accused/appellant was charged under Section 364/34 I.P.C. to which they pleaded not guilty and claimed to be tried.

8. In order to bring home guilt of surviving appellant, the prosecution has examined seven prosecution witnesses, PW-1, Smt. Munni Devi, PW-2, Prem Sagar, PW-3, Ram Niwas, PW-4, Abhay Narayan Shukla, PW-5, Constable 615 Rishikesh Sharma.

9. The statements of surviving appellant was recorded under Section 313 Cr.P.C. In their detailed statements, the appellant has denied the allegations levelled against him. He has stated to have been falsely implicated.

10. In defence, the surviving accused-appellant has filed a copy of N.C.R. bearing No.81/90 under Sections 498 I.P.C.

11. Learned counsel for the surviving accused-appellant has submitted that the surviving appellant is innocent and has been falsely implicated in this case due to enmity. His further submission is that in view of aforesaid finding of guilt and resultant sentencing is palpably illegal, which deserves to be set aside. He, while concluding his arguments, has fairly admitted that keeping in view the fact that the alleged incident took place on 12.07.1990, which came to be decided by the impugned judgment and order dated 11.08.2003, after about thirteen years and since then the instant appeal also kept pending. The surviving appellant has, thus, undergone a traumatic phase of about 32 years. Therefore, he has submitted that he would not dispute the impugned judgment whereby the surviving appellant has been held guilty. However, he has submitted that the fact remains that the injured and the appellant belong from the same village and now he is aged also. He has undergone a long traumatic phase of about 32 years since the date of incident. Accordingly, he deserves indulgence of this Court on the point of quantum of sentence only.

12. Per contra, learned A.G.A. has opposed the submissions made by learned counsel for the appellant. He submits that the surviving accused-appellant has been convicted by the learned trial Court after proper appreciation of evidence available against him.

13. Learned A.G.A. has further submitted that the prosecution has proved its case against the appellants on the basis of cogent evidence. The appellants have been convicted by the impugned judgment and order which is well discussed and reasoned, wherein no interference by this Court is warranted. However, he is unable to dispute the other factual submission advanced by learned counsel for the appellants

14. Having heard learned counsel for parties and upon perusal of the records, this Court finds that the first informant, Smt. Munni Devi, who was examined as PW-1, has supported the prosecution case as contained in written report. The victim has been examined as PW-2, who has also stated on oath that he was detained by the appellant on the date of incident. The PW-3, Ram Niwas has also stated that on the date of incident at about 12:00 P.M. he saw the appellants who took the victim with them in an Ambassador Car. The learned trial Court on the basis of aforesaid testimonies, after due analysis of prosecution evidence, had recorded the finding of guilt of the accused-appellants under Sections 343/34 & 506(2) I.P.C. only, wherein no interference by this Court is warranted.

15. Therefore, in the light of the aforesaid, no perversity or illegality appears in the finding of guilt recorded against the surviving accused-appellant under Sections 343/34 & 506(2) I.P.C. by the learned trial Court by means of impugned judgment.

16. There is nothing on record to show that the surviving appellant is either having any criminal antecedents or he is prior convict. He has undergone a long traumatic phase of about 32 years since the date of incident. He is now old aged person. Thus, having regard to the aforesaid overall facts and circumstances of the case, the surviving accused-appellant has been convicted and sentenced for one year's rigorous imprisonment for the offene under Section 343/34 I.P.C. He has also been convicted and sentenced for three years' rigorous imprisonment for the offene under Section 506(2) I.P.C., in want of any aggravating circumstances brought to the notice of this Court, it appears to be a fit case where the surviving accused-appellant ought to have been extended benefit of provisions of Probation of Offenders Act, 1958.

17. It is useful to quote Sections 4 of Probation of Offenders Act, 1958:-

"4. (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) is made, 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), 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 or 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."

18. It is also relevant to quote Section 11 of Probation of Offenders Act, 1958, which reads as under:-

"11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.--

"(1) Notwithstanding anything contained in the Code or any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

(2) Notwithstanding anything contained in the Code, where an order under section 3 or section 4 is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.

(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained in the Code or any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.

(4) When an order has been made under section 3 or section 4 in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty."

19. This Court in the case of Subhash Chand & others Vs. State of U.P. (2015 Law Suit (All) 1343) , has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:-

30. "It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellante courts. The Registrar General of this Court is directed to circulate copy of this Judgement to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgement. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance."

20. The Hon'ble Apex Court in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659 has extended the benefit of Probation of Offenders Act, 1958 to the appellants, and observed as under:-

"The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour."

21. Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.

22. In the light of the above discussions, this Court finds no illegality in the impugned judgment. Thus, the conviction of the surviving accused-appellant under Sections 343/34 & 506(2) I.P.C. is upheld. However, sentence, as indicated above, is liable to be modified.

23. The upshot of aforesaid discussion is that the conviction of the the surviving accused-appellant under Sections 343/34 & 506(2) I.P.C. is upheld, however, the sentence is modified to the extent that instead of sentencing the surviving appellant, to the jail, he shall get the benefit of Section 4 of the Probation of Offenders Act. Further, the surviving appellant shall file two sureties to the satisfaction of the court concerned coupled with personal bonds to the effect that he shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of two years. The bonds aforesaid be filed by the appellant within eight weeks.

24. In case of breach of any of the above conditions, the surviving appellant shall be taken into custody and shall have to undergo sentence awarded to him.

25. With the above modification, the instant criminal appeal is partly allowed.

26. In compliance of the provision contained in Section 437-A Cr.P.C. the surviving accused-appellant is directed to furnish personal bond and two sureties to the satisfaction of the court concerned within a period of four weeks from today.

27. A copy of this order be communicated to the trial Court concerned for necessary information and compliance through e-mail/fax.

Order Date :- 16.08.2022

A.Dewal

[Ajai Kumar Srivastava-I, J]