Raja Ram vs State Of U.P.
2022 Latest Caselaw 10211 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 814 of 2002
 
Appellant :- Raja Ram
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rishad Murtaza
 
Counsel for Respondent :- Govt.Advocate
 
With
 
Case :- CRIMINAL APPEAL No. - 815 of 2002
 
Appellant :- Ram Prasad And 3 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rishad Murtaza
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Rishad Murtaza, learned counsel for the appellants and learned A.G.A. for the State as well as perused the entire record.

2. The aforesaid both the appeals have been filed by the appellants to assail the judgment and order dated 06.06.2002 passed by the Additional District and Sessions Judge (F.T.C.-II), Sultanpur in Sessions Trial No.191 of 1994 whereby the appellant Raja Ram in Criminal Appeal No.814 of 2002 came to be convicted under Section 148 I.P.C. and was sentenced to undergo one year's rigorous imprisonment and further convicted under Section 307/149 and was sentenced to undergo three years' rigorous imprisonment and to pay fine of Rs.1,000/- and in Sessions Trial No.135 of 1993, the appellants, Ram Prasad, Jhabboo Yadav, Ram Sajiwan and Ram Raksha @ Nanhey in Criminal Appeal No.815 of 2002 were convicted under Section 147 I.P.C. and sentenced to undergo one year's rigorous imprisonment and further convicted under Section 307/149 I.P.C. and sentenced to undergo three years' rigorous imprisonment and to pay fine of Rs.1,000/- each.

3. The aforesaid appeals inmate from Crime No.332/1985 and the appellant, Raja Ram was tried in S.T. No.191 of 1994 whereas the appellants, Ram Prasad, Jhabboo Yadav, Ram Sajiwan and Ram Raksha @ Nanhey were tried in S.T. No.135 of 1993, therefore, the aforesaid appeals are being disposed of together with a common judgment.

4. The prosecution case in brief is that on 30.07.1986 at about 09:00 P.M., the appellants were demolishing complainant's wall in the light of lantern. The complainant when reached on the spot with torch and asked the appellants not to demolish his wall, annoyed by this, he was assaulted by the appellants who were armed with ballam, lathi and etc. In this incident, uncle of complainant also sustained injuries who fell on the earth.

5. On the basis of aforesaid written report, Case Crime No.332 of 1985, under Sections 147, 148, 149, 323, 324 and 307 I.P.C. came to be lodged against the appellants.

6. The Investigating Officer recorded statements of witnesses under Section 161 Cr.P.C. He visited the place of occurrence and prepared a site plan thereof and upon conclusion of investigation, he submitted charge sheet against the appellants under Sections 147, 148, 149, 307, 324 and 352 I.P.C.

7. The appellants were charged under Sections 147, 307/149 I.P.C., who denied the charges and claimed to be tried.

8. The prosecution, in order to prove its case, has examined P.W.-1, Tidi, P.W.-2, Murli, P.W.-3, Jantri Prasad, P.W.-4, Beni Madhav, P.W.-5, Dr. Subedar Singh, P.W.-6, Constable Ram Sambhar, P.W.-7, Parshuram, P.W.-8, Girja Shanker and P.W.-9, Surendra Tiwari.

9. The statements of appellants were recorded under Section 313 Cr.P.C. wherein they stated that they were falsely implicated in this case and the prosecution witnesses have deposed against them due to enmity.

10. In defence, no evidence was adduced by the appellants.

11. The appellants, by means of impugned judgment and order dated 06.06.2002 came to be convicted as aforesaid. Hence these appeals.

12. Aggrieved by the aforesaid impugned judgment and order dated 06.06.2002, the appellants have filed these appeals.

13. Foremost contention of learned counsel for the appellants is that there is no credible evidence on record to show that injuries by the appellants were inflicted to the injured persons with a view to kill them. Therefore, in absence of any evidence in respect of intention to kill, the case of appellants utmost falls under Section 324 I.P.C. in the facts of present case.

14. Learned counsel for the appellants has also very fairly stated that keeping in view the undisputed fact which has found mention in the impugned judgment itself that the complainant, injured and the appellants belong to same family. They are resident of the same village also. There are every possibilities of revival of cordial relations between them. He further submits that the incident occurred in the year 1986. The appellants faced trauma of pendency of trial for about 16 years and thereafter they are facing trauma of pendency of this appeal for about more than 20 years and the appellants are of advanced age i.e. appellant Raja Ram is about 70 years' old, appellant Ram Prasad is 64 years' old, appellant Jhabboo Yadav is 76 years' old, appellant Ram Sajiwan is 51 years' old and appellant Ram Raksha is 55 years' old. However, he prays for grant of probation to the appellants keeping in view the fact that they are of the same village, they have no prior criminal antecedents and are of advanced age also. He, therefore, submits that in the facts of this case, the appropriate course would have been to extend benefit of The Probation of Offenders Act of 1958 to the appellants and to this extent, he submits that he would not be disputing the finding of guilt.

15. Per contra, learned A.G.A. for the State has submitted that the accused/appellants rightly came to be convicted vide impugned judgment and order dated 06.06.2002. They were named in the first information report. Specific roles were assigned to them who came to be convicted vide impugned judgment and order dated 06.06.2002 which is well discussed and reasoned. Accordingly, no interference by this Court in exercise of its power under Section 386 Cr.P.C. is neither warranted nor is justified. He, accordingly, prays for dismissal of the instant appeal.

16. Having regard to the submissions advanced by learned counsel for the appellants and learned A.G.A. for the State and upon perusal of record, it transpires that P.W.-1, Tidi and P.W.-2 Murli have supported the prosecution case as contained in the first information report, Ex. Ka-5. Dr. Subedar Singh, P.W.-5 had examined Tidi and Murli and had prepared their injury report as Ex. Ka-3 and Ex. Ka-4 respectively. The duration of aforesaid injuries sustained by the P.W.-1 and P.W.-2 correspond to the time of incident. The witness P.W.-3, Jantri Prasad have been declared hostile by the prosecution. It is also significant to note that P.W.-7, Parshuram has also been examined by the prosecution who has stated that he had scribed the written report on the dictation of Jantri Prasad, P.W.-3, who as stated above has been declared hostile by the prosecution. Thus, having regard to the fact that the prosecution story is fully supported by P.W.-1, Tidi and P.W.-2, Murli who are injured also, whose injury reports have been proved by the P.W.-5, Dr. Subedar Singh as Ex. Ka-3 and Ex. Ka-4. Besides, having regard to the seat of injuries and want of any evidence to the effect that such injuries were inflicted with an intention to kill the appellants herein are liable to be convicted under Section 324 I.P.C. read with Section 149 I.P.C. Their conviction under Section 307 I.P.C. read with Section 149 I.P.C. being unsustainable is liable to be set aside. The finding of guilt under Sections 148 and 324/149 I.P.C. against the appellant in Criminal Appeal No.814 of 2002 whereas under Section 147 and 324/149 I.P.C. against the appellants in Criminal Appeal No.815 of 2002 appears to be based on proper analysis of evidence available before the learned trial court wherein no interference by this Court is warranted. However, having regard to the fact that the appellants have no criminal antecedents, they belong to same family and are stated to be living together amicably in a cordial atmosphere, they have already faced trauma of pendency of appeal for a period of more than 20 years, it is just and proper 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."

17. 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."

18. This Court in the case of Subhash Chand & others vs. State of U.P.1, 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."

19. The Hon'ble Apex Court in State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand & others2 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."

20. Similarly, in Jagat Pal Singh & others vs. State of Haryana3, 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.

21. Thus, in Criminal Appeal No.814 of 2002 the appellant, Raja Ram is hereby convicted under Sections 148 and 324/149 I.P.C. whereas in Criminal Appeal No.815 of 2002, the appellants, Ram Prasad, Jhabboo Yadav, Ram Sajiwan and Ram Raksha @ Nanhey are convicted under Sections 147 and 324/149 I.P.C. However, the sentences, as indicated above, are liable to be modified.

22. The upshot of aforesaid discussion is that the conviction of the the appellant, Raja Ram under Sections 148 and 324/149 I.P.C. in Criminal Appeal No.814 of 2002 whereas under Section 147 and 324/149 I.P.C. against the appellants, Ram Prasad, Jhabboo Yadav, Ram Sajiwan and Ram Raksha @ Nanhey in Criminal Appeal No.815 of 2002 I.P.C. are modified, however, the sentence is also modified to the extent that instead of sentencing the appellants, to the jail, they shall get the benefit of Section 4 of the Probation of Offenders Act, 1958. Further, the appellants shall file two sureties each to the satisfaction of the court concerned coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of three years. The bonds aforesaid be filed by the appellants within eight weeks.

23. In case of breach of any of the above conditions, the appellants shall be taken into custody and shall have to undergo sentence awarded to them.

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

25. The appellants are directed to file a personal bond and two sureties in the like amount each to the satisfaction of the court concerned in compliance of section 437-A Cr.P.C. within six weeks from today.

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

26. Let a copy of this judgment be kept in record of Criminal Appeal No.815 of 2002.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 16.8.2022

Saurabh