Raj Kumar And Another vs State
2022 Latest Caselaw 21572 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 93
 

 
Case :- CRIMINAL APPEAL No. - 753 of 1990
 

 
Appellant :- Raj Kumar And Another
 
Respondent :- State
 
Counsel for Appellant :- Raj Singh,Surendra Nath Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Surendra Singh-I,J.

Heard Sri Surendra Nath Yadav, learned counsel for the appellants and Sri Sunil Kumar Tripathi, learned A.G.A. for the State.

2. This criminal appeal has been filed against the judgement and order dated 14.03.1990 passed by Ist Additional Sessions Judge, Bulandshahr, in Sessions Trial No. 368 of 1988, State Vs. Raj Kumar and another arising out of Case Crime No. 19 of 1983, under Sections 323 & 307 I.P.C., Police Station- Jahangirpur, District- Bulandshahr.

3. By the impugned order, the trial court has convicted the appellants, Raj Kumar and Bhoora alias Omi u/s 324/34 and 323/34 I.P.C. with a fine of Rs.2,000/- and Rs.1,000/- each respectively with default clause. They are further sentenced to imprisonment till the rising of the court under the said count.

4. According to the prosecution case about 4-5 days prior to the occurrence in question i.e. 17.02.1983 at about 10 a.m., the accused-appellants, Raj Kumar and Bhoora were opening fire at their tubewell. Prasadi and his son, Mahavir, who were residents of village- Bhoot Garhi, P.S.- Jahangirpur, District- Bulandshahr, were going to their own tubewell. They objected to the accused whereupon the accused threatened them with dire consequences, if they disclosed the above incident of firing to anybody else. The informant and his son did not convey this information to any of the villagers but the accused suspected the informant and his son. On 17.02.1983 at about 10 a.m., the accused, Bhoora and Raj Kumar with one other person were running with lathis and gandasa. On the main front of the house of Om Prakash. All the three assailants attacked Mahavir with lathi and gandasa with the intention to kill him. Accused Bhoora attacked Mahavir on his head with the gandasa as a result of which Mahavir fell down. The witnesses Bhoja, PW2 Vikram Singh and other villagers assembled on the spot to save Mahavir. The accused ran away towards village- Pahasu. The informant's wife and other villagers took injured Mahavir to District Hospital, Khurja. Bhoja went to Jahangirpur and informed the informant, Pershadi about this incident. Pershadi then went to Khurja and saw his injured son who was admitted in the hospital. The injured went thereafter to P.S.- Jahangirpur and lodged the written report (Ext.Ka.1).

5. On the basis of written report (Ext.Ka.1), a chik FIR (Ext.Ka.4) was prepared by PW5 Constable Omprakash Tyagi. On the basis of chik report, he made the G.D. entry (Ext.Ka.5). The investigation of the case was taken by PW6 Babu Ram Sharma. He recorded the statement of Pershadi, Mahavir and Vikram, made a local inspection at the spot and prepared the site plan (Ext.Ka.6). On 25.02.1983, he took in his possession the blood-stained clothes of injured Mahavir and prepared the recovery memo (Ext.Ka.7) to that effect. After completing the investigation, he submitted charge-sheet (Ext.Ka.8) against accused Bhoora on 19.03.1983 u/s 323, 307 I.P.C. On 21.07.1983, another S.I. Mojjam Singh submitted another charge-sheet (Ext.Ka.9) against accused Raj Kumar u/s 323, 307 I.P.C.

6. Both the accused were committed to the Court of Sessions by order dated 03.08.1986 passed by learned Chief Judicial Magistrate, Bulandshahr. On 18.01.1989, the court framed charge u/s 323/34 and 307/34 I.P.C. against accused-appellants, Raj Kumar and Bhoora @ Omi. The appellants pleaded not guilty and claimed to be tried for the charge.

7. To prove the charge, the court examined PW1 Mahavir, PW2 Vikram and PW3 Pershadi as witnesses of fact whereas PW4 Ravi Kumar Sharma, PW5 H.C. Om Prakash Tyagi and PW6 S.I. Babu Ram Sharma, were examined as formal witnesses.

8. PW3 informant Pershadi proved the written report (Ext.Ka.1). He also proved the blood-stained clothes of injured Mahavir as material Exts.1, 2 and 3. He stated in his evidence that above material exhibits were packed and sealed before him by the Investigating Officer and the Investigating Officer prepared the memo regarding taking them in his possession.

9. PW1 Mahavir and PW2 Vikram deposed about the occurrence. PW4 Dr. Ravi Kumar Sharma, the then Medical Officer in Government Hospital, Khurja, on 17.02.1983 at 11.50 p.m. proved the injury report of injured Mahavir (Ext.Ka.3). He noted following injuries on the person of injured Mahavir :-

(i) Incised wound 4 cm x 1 cm x bone deep on the back of left side head 6 cm above and behind left ear, margins clean cut. Both ends tapering, fresh bleeding present.

(ii) Abrasion 3 cm x 1½ cm on the back of right elbow

(iii) Abrasion ½ cm x ½ cm on the back and base of right ring finger.

(iv) Red contusion 3 cm x 2 cm on the top of left shoulder.

In the opinion of the PW4 Dr. Ravi Kumar Sharma, injury no. 1 was caused by some sharp-edged weapon and was kept under observation. X-ray of the skull was advised. The remaining injuries were caused by some hard blunt object and are simple in nature. Duration of the injuries is fresh.

10. PW5 H.C. Om Prakash Tyagi proved the chik first information report and G.D. relating to institution of criminal case.

11. The Investigating Officer, PW6 S.I. Babu Ram Sharma has proved the site plan and two charge-sheets submitted against accused, Raj Kumar and Bhoora.

12. On 06.02.1990, the court recorded the statement of the accused-appellants, Raj Kumar and Bhoora u/s 313 Cr.P.C. They have denied the prosecution case and have stated that the prosecution witnesses have given false evidence against them due to enmity. They have also stated that the Investigating Officer has wrongly filed charge-sheets against them.

13. The accused-appellants has stated in their additional statement that on the date of incident, the informant Pershadi had done marpeet with his father and maternal uncle regarding which first information report was lodged against him. Therefore, he filed wrong written report against the accused. The accused have filed documentary evidence in defense. They have filed paper no. 59/A which is the certificate issued by Janta Inter College, Bhatauna, to the effect that accused-appellant, Raj Kumar had passed Class- VIth in 1979-80 and his conduct has been good. Paper No. 60A/1 is the certified copy of the chik FIR lodged by Prahlad Singh against Devi, Harvir, Giriya, Hari, Shanker and Dariyav. Paper no. 60A/2 is the certified copy of the written report of Prahlad. Paper no. 61/A is the certified copy of the medical report of Prahlad. The defence has filed a copy of the FIR lodged by Prahlad but it does not mention the name of Mahavir.

14. It has been argued on behalf of the appellants that FIR has been lodged after a gap of 8½ hours after much delay. It has been argued that informant Pershadi is not an eye witness and he was not present at the place of occurrence. It has also been stated that only one accused, Bhoora used sharp-edged weapon balkati (gandasa) for causing injury to Mahavir. The other accused was having a lathi in his hand. There is no evidence of common intention. Accused-appellant, Raj Kumar cannot be held guilty for offence u/s 324 r/w 34 I.P.C. It has also been argued that on the date of occurrence of the alleged incident, the informant Pershadi has caused injury to father of maternal uncle of the accused and they had lodged first information report regarding it.

15. Per contra, learned A.G.A. has argued that on the basis of oral and documentary evidence, the prosecution has proved the charge against the accused-appellants beyond all reasonable doubts and they have been rightly convicted u/s 323/34 and 324/34 I.P.C. and sentenced accordingly.

16. Heard learned counsel for both the parties and perused the impugned judgement and order as well as the record of the trial court.

17. The injured PW1 Mahavir has stated in his evidence that one or two days before the incident, he and his father while returning from their kolhu, saw accused-appellants and one other person firing at their tubewell. Accused-appellant and the third person threatened them that they will not tell anyone about the incident. Although PW1 Mahavir and his father did not inform anyone about the incident but the accused-appellant had apprehension that they have informed others about the firing incident. Due to that enmity, on the date of occurrence when injured Mahavir and his father Pershadi were standing outside of their house, accused-appellants and one other person attacked. Accused-appellant Raj Kumar was having lathi in his hand and accused-appellant Bhoora was holding balkati (gandasa) with which both of them attacked. On their shouting, PW2 Vikram and Bhoja arrived there seeing them on the place of occurrence. PW1 Mahavir has also stated in his evidence that his mother and brother carried him to District Hospital, Khurja, where he was medically examined and given medical treatment. PW1 Mahavir has deposed that on being informed, his father Pershadi reached the hospital. Thereafter, he prepared the written report and lodged the FIR in P.S.- Jahangirpur, District- Bulandshahr.

PW2 Vikram Singh, eye witness of the occurrence, has also stated in his evidence that on the date of occurrence, he saw the appellant, Raj Kumar and Bhoora, attacking injured Mahavir with lathi and balkati (gandasa) respectively. He and Bhoja reached there and saved the injured. On their reaching there, accused-appellants fled from the place of occurrence. PW2 Vikram Singh has also proved in his evidence that injured Mahavir was carried by his mother to District Hospital, Khurja. He was admitted and underwent medical treatment.

18. PW3 Pershadi has deposed in his evidence that he was informed by Bhoja about the incident while he was at his home situated at P.S.- Jahangirpur. He reached the hospital where he found his son, Mahavir admitted in the hospital in an injured state. He inquired from his son about the incident and thereafter, got the written report prepared by some Satyaveer and submitted it at P.S.- Jahangirpur. After the written report (Ext.Ka.1) was submitted, FIR was lodged against appellants, Raj Kumar and Bhoora.

19. PW3 Pershadi has also stated in his evidence that the possession of blood-stained clothes (material Exts.1 to 3) was taken by the Investigating Officer and prepared the memo regarding it.

20. The oral evidence of injured Mahavir is corroborated by the evidence given by the witnessees, PW2 Vikram Singh and PW3 Pershadi. The evidence of aforesaid witnesses PW1, 2 and 3 appears to be true, trustworthy and reliable and even after lengthy cross-examination done by the defence, nothing has been found in their cross-examination so as to make their evidence untrue or unreliable. The oral evidence of PW1, 2 and 3 have been corroborated by the documentary evidence, namely, written report, chik FIR, report regarding G.D. copy, site plan of the place of occurrence and charge-sheets submitted against the accused-appellants, Raj Kumar and Bhoora.

21. The injury no. 1 of PW1 Mahavir is an incised wound on the back of left side on the head. According to the opinion of PW4 Dr. Ravi Kumar Sharma, it has been caused by sharp-edged weapon and x-ray has been advised but in the x-ray report, no fracture was found in the skull bone of the injured. 2-3 days prior to the occurrence, appellant, Raj Kumar and Bhoora, had threatened the injured Mahavir and Pershadi from disclosing to anyone about firing done by them.

22. PW1 Mahavir, PW2 Vikram Singh and PW3 Pershadi have deposed in their evidence that the accused-appellants had apprehension that injured, Mahavir and his father, Pershadi had told about their illegal activities to the villagers. On the day of occurrence, accused-appellants, Raj Kumar and Bhoora, chased them and in pursuance of common intention, caused injury to PW1 Mahavir as mentioned above.

23. Thus, from the evidence produced by the prosecution, motive of the accused-appellants to commit the offence has been sufficiently proved by the prosecution.

24. PW1 Mahavir, PW2 Vikram Singh and PW3 Pershadi have stated that injured Mahavir's father was not present on the place of occurrence. After the occurrence, the injured was carried to District Hospital, Khurja, where he had undergone medical examination and was referred to medical treatment. On being informed by witness Bhoja, informant Pershadi reached the Khurja hospital and after being informed by his son Mahavir about the occurrence, he went to P.S.- Jahangirpur and lodged the FIR. Thus, the prosecution has sufficiently explained the alleged delay in lodging of the FIR.

25. The documents filed by accused-appellants in defence have not been proved by any witness. Thus, reliance cannot be placed on them.

26. Accused-appellants have proved that accused father had lodged the FIR against the informant therefore in rebuttal, the present case was lodged against them. From the perusal of the FIR filed by accused-appellant, it transpires that in the list of accused, the name of Pershadi is absent. The defence has not made it clear that who are the named accused in the FIR lodged by Prahlad. Thus, the accused-appellants do not get any benefit from the documents filed by them. Thus, the documents filed by the accused-appellants does not rebut the prosecution case.

27. From the appreciation of the evidence on record, this Court has made considered opinion that prosecution has proved the charge u/s 324/34 and 323/34 I.P.C. against the appellants beyond all reasonable doubts.

28. Learned counsel for the appellants has argued that the occurrence took place on 17.02.1983 about 39 years before and on the date of occurrence, accused-appellants were in their teens. They may be granted benefit of the Probation of Offenders Act, 1958.

29. Section 4 of the Probation of Offenders Act, 1958 reads 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.

30. A similar provision finds place in the Code of Criminal Procedure. Section 360 Cr.P.C. provides:

360. Order to release on probation of good conduct or after admonition.

(1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is- convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or the Children Act, 1960 (60 of 1960 ), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

31. These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

32. In the case of Subhash Chand and others vs. State of U.P., 2015 Lawsuit (Alld) 1343, this court 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:

"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 appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgment 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 Judgment. 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."

33. In addition to the above judgment of this Court, this Court finds that the Hon'ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659, giving the benefit of Probation of Offenders Act, 1958 to the accused has observed as below:

"The learned counsel appearing for the accused submitted that the incident 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 incident 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."

34. 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.

35. In the light of above discussion, I find no illegality, irregularity or impropriety nor any jurisdictional error in the impugned judgment and order of the court below. The conviction recorded by the court below under Sections 324/34 and 323/34 I.P.C. is upheld and is not required to be disturbed.

36. However, instead of sending the appellants to jail, they shall get the benefit of Section 4 of the Probation of Offenders Act, 1958. Consequently, the appellants shall file two sureties to the tune of Rs. 25,000/- coupled with personal bonds and undertaking to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the court below. It is also desirable that accused-appellants may be directed to deposit Rs.4,000/- each as cost and compensation in this case within two months. From the aforesaid amount deposited by the accused-appellants, Rs.5,000/- shall be paid to injured Mahavir or in case of his death to his legal representatives. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the judgment in the court concerned as per law and rules. In case surety bonds and compensation is not deposited, appellants shall be sentenced to simple imprisonment for one year.

37. Accordingly, this appeal is partly allowed regarding sentences of the appellants.

38. Let a certified copy of this order along with record be sent to the court concerned for compliance.

Order Date :- 19.12.2022

KS