Gama @ Ashok Kumar vs State Of U.P.
2022 Latest Caselaw 9492 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1717 of 2002
 

 
Appellant :- Gama @ Ashok Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rakesh Kumar Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Rakesh Kumar Tripathi, learned counsel for the appellant, Sri Vishwendra Pratap Singh, learned A.G.A. for the State and perused the entire record.

2. Under challenge in this criminal appeal is the judgment and order dated 02.12.2002 passed by the learned Additional District & Sessions Judge, Fast Track Court No.2, Sitapur in Sessions Trial No.48 of 2000 arising out of Case Crime No.96 of 1998, under Sections 147, 148, 149, 323, 504, 506 and 307 I.P.C., Police Station Hargaon, District Sitapur whereby the appellant has been convicted and sentenced to undergo three years' rigorous imprisonment with a fine of Rs.1,000/- for the offence under Section 324 I.P.C. and in default of payment of fine, he has further been directed to undergo six months' simple imprisonment. He has also been convicted and sentenced to undergo six months' rigorous imprisonment for the offence under Section 323 I.P.C. All the sentences were directed to run concurrently.

3. The prosecution case in brief is that on 12.05.1998 at about 04:30 PM, the first informant, Govardhan Lal was having his high tea in his house. Suddently, his cousin, Dinesh Kumar came to his house. Dinesh Kumar was followed by the appellant along with other co-accused who were armed with country made fire arm, lathi, danda etc. The appellant and other co-accused hurled abuses. When object to, the appellant, Gama @ Ashok Kumar opened fire causing injury on the person of the complainant, Govardhan Lal. Dinesh Kumar had also sustained injuries on different parts of his body. When the first informant, Govardhan Lal was going to police station to get the case lodged, he was again intercepted by the appellant and other co-accused who fled away from the spot due to arrival of villager, Bharat Singh.

4. On the basis of written report, Ex. Ka-1 submitted by the first informant, Govardhan Lal, the first information report came to be lodged at Police Station Hargaon, District Sitapur on 12.05.1998 at about 08:10 PM.

5. The Investigating Officer recorded statements of witnesses including injured persons under Section 161 Cr.P.C. He visited the place of occurrence and prepared a site plan thereof as Ex. Ka-5.

6. Upon conclusion of investigation, the Investigating Officer submitted a charge sheet, Ex. Ka-8 against the appellant for the offence under Sections 147, 148, 149, 323, 504, 506 and 307 I.P.C., Police Station Hargaon, District Sitapur.

7. Charges under Sections 147, 148, 307 read with Section 149, 323 read with Section 149, 504, 506 (II) I.P.C. were framed against the appellant who denied the charges and claimed to be tried.

8. The prosecution in order to prove its case has examined the first informant, Govardhan Lal as PW-1 who proved the written report as Ex. Ka-1, Dinesh Shukla as PW-2, Bharat Singh as PW-3, Dr. G.P. Sharma as PW-4 who prepared and proved the injury reports of the first informant, Govardhan Lal and Dinesh as Ex. Ka-2 and Ex. Ka-3 respectively, Dr. A.K. Nigam, Radiologist as PW-5, S.I. Satyanarayan Tiwari as PW-6 and S.I. Kratyanjay Singh as PW-7.

9. The appellant in his statement recorded under Section Section 313 Cr.P.C. has stated the prosecution story to be false. He has also stated to have been falsely implicated in this case and he claimed to be innocent.

10. The learned trial court, after hearing both the parties, passed the impugned judgment and order dated 02.12.2002 whereby the appellant came to be convicted for the offence under Sections 324 and 323 I.P.C. only. He was acquitted of charges under Sections 147, 148, 307 read with Section 149, 323 read with Section 149, 504 and 506 (II) I.P.C.

11. Aggrieved by the aforesaid impugned judgment and order dated 02.12.2002, the appellant has filed this appeal mainly on the ground that the case of prosecution was not found to be proved insofar as the same did not correspond to the prosecution story as contained in Ex. Ka-1, the written report.

12. Learned counsel for the appellant has submitted that the alleged incident occurred on 12.05.1998. Thereafter, this appeal was preferred in the year 2002 which came to be heard today.

13. His further submission is that the appellant is facing trauma of trial as well as pendency of the instant appeal for about two decades. The appellant is of the middle age who has no previous criminal history and is not prior convict 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 appellant and to this extent, he submits that he would not be disputing the finding of guilt.

14. Per contra, learned A.G.A. for the State has submitted that the accused/appellant rightly came to be convicted vide impugned judgment and order dated 02.12.2002 which is well discussed and reasoned. The appellant was named in the first information report. 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.

15. Having heard Sri Rakesh Kumar Tripathi, learned counsel for the appellant, Sri Vishwendra Pratap Singh, learned A.G.A. for the State and upon perusal of record, it transpires that the prosecution has been able to prove its case as contained in the written report, Ex. Ka-1 in the light of consistent and believable testimonies of injured persons, namely, PW-1, Govardhan Lal and PW-2, Dinesh Shukla on whose persons, various injuries were found by PW-4, Dr. G.P. Sharma who prepared and proved their injury reports as Ex. Ka-2 and Ex. Ka-3 respectively. Therefore, the finding of guilt against the appellant for the offence under Sections 323 and 324 is based on proper appreciation and analysis of prosecution evidence available on record.

16. This court does not find anything on record to show that the appellant had any prior criminal antecedents or he was prior convict. The first informant, PW-1, Govardhan Lal as well as the appellant, Gama @ Ashok Kumar belong to the same village. There is every possibility of their survival together. Therefore, having regard to the fact that the appellant has been convicted and sentenced for a maximum period of three years' rigorous imprisonment for the offence under Section 324 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 appellant ought to have been extended benefit of provisions of the Probation of Offenders Act, 1958 keeping in view overall facts and circumstances of this case including the age of the the appellant.

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.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."

20. 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 accused, 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 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.

22. In the light of the above discussions, I find no illegality in the impugned judgment and order dated 02.12.2002. Thus, the conviction of the appellant under Sections 323 and 324 I.P.C. is affirmed. However, sentence, as indicated above, is liable to be modified.

23. The upshot of aforesaid discussion is that the conviction of the the appellant for the offence under Section 323 and 324 I.P.C. is affirmed, however, the sentence is modified to the extent that instead of sentencing the appellant, to the jail, he shall get the benefit of Section 4 of the Probation of Offenders Act, 1958. Further, the appellant shall file two sureties to the satisfaction of the court concerned coupled with personal bond 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 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. The appellant is directed to file a personal bond and two sureties in the like amount to the satisfaction of the court concerned in compliance of Section 437-A Cr.P.C. within six 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.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 06.08.2022

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