Shashi Kant Chaudhary vs The State Of U.P.
2022 Latest Caselaw 8180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 89 of 2002
 

 
Appellant :- Shashi Kant Chaudhary
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Saleem Ahmad,Kaushlendra Tewari
 
Counsel for Respondent :- Govt.Advocate
 

 
AND
 
Case :- CRIMINAL APPEAL No. - 98 of 2002
 

 
Appellant :- Surendra Kumar Bhatt
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K.Ojha
 
Counsel for Respondent :- Govt.Advocate
 
AND
 
Case :- CRIMINAL APPEAL No. - 100 of 2002
 

 
Appellant :- Ajay Rawat
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vimal Shukla,Mahmood Alam,Qazi Sabihur Rahman
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I, J.

1. By means of the instant appeals, the appellants have assailed the judgment and order dated 24.01.2002 passed by the learned Additional District and Sessions Judge, Lucknow in Sessions Trial No.1037 of 1999 arising out of Case Crime No.652 of 1998, under Sections 302, 307, 323, 504 of the Indian Penal Code (hereinafter referred to as "I.P.C."), Police Station Gazipur, District Lucknow whereby the appellants, have been convicted and sentenced for one year's imprisonment with a fine of Rs.1,000/- each for the offene under Section 323 I.P.C. and in default of payment of fine, they have further been directed to undergo for a period of three months' additional imprisonment.

2. Since the aforesaid criminal appeals have been preferred against the impugned judgment and order dated 24.01.2002 passed by the learned Additional District and Sessions Judge, Lucknow in Sessions Trial No.1037 of 1999 arising out of Case Crime No.652 of 1998, under Sections 302, 307, 323, 504 I.P.C., Police Station Gazipur, District Lucknow therefore, they have been heard together and are being decided by a common judgment.

3. The prosecution case, in brief, is that on 07.12.1998 at about 4:00 P.M. when PW-1, Ashutosh Srivastava, PW-2, Mohammad Nafees, and Alok Choudhary were going to attend their coaching class from Sachivalya Colony. They were assaulted by the co-accused person, namely, Neeraj and the present appellants due to some scuffle between Neeraj Kumar and Alok Choudhary. The accused Neeraj Kumar brought a scissors from a nearby shop of florist and started assaulting Alok Choudhary from the scissors. The other accused persons also assaulted Alok Choudhary.

4. On the basis of aforesaid written report, Ex. Ka-1, Case Crime No.652/1998 came to be registered under Sections 302, 307, 323, 504 I.P.C., Police Station Gazipur, District Lucknow.

5. Investigating Officer, P.W.-5, Sub-Inspector, Rakesh Kumar Sharma 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-10 and upon conclusion of investigation, he submitted the charge sheet as Ex. Ka-5 against the appellants and other co-accused.

6. The accused/appellants were charged under Sections 302/34, 323, 307, 504 I.P.C. to which they denied and claimed to be tried.

7. In order to bring home guilt of appellants, the prosecution has examined eight prosecution witnesses, PW-1, Ashutosh Srivastava, PW-2, Mohammad Nafees, PW-3, Dr. Sunil Kukar Gupta, PW-4, Sub-Inspector, Indraveer Singh, PW-5, Sub-Inspector, Rakesh Kumar Sharma, PW-6, Station House Officer, V.P. Singh, PW-7, Km. Arti Choudhary and PW-8, Ratipal Singh.

8. Dr. Sunil Kumar Gupta, PW-3 prepared the injury report of injured/Mohammad Nafees as Ext. Ka-2 wherein four injuries were found on the body of the injured, out of which, three were incised and one contusion.

9. He also prepared the post mortem report of the deceased, Alok Choudhary, as Ex. Ka-3, wherein nine injuries were found on the body of the deceased, out of which, eight injuries were incised and one contusion on the different part of the body of the deceased.

10. The statements of appellants were recorded under Section 313 Cr.P.C. In their detailed statements, the appellants have denied the allegations levelled against them. They have stated to have been falsely implicated.

11. No evidence in defence was adduced by the appellants before the trial Court.

12. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated in this case because of their acquaintance with the co-accused, Neeraj Kumar. There is nothing on record to show that the accused-appellants were sharing common intention with co-accused, Neeraj Kumar to kill the deceased, Alok Choudhary. The finding of guilt of appellants recorded by the learned trial Court is against the weight of evidence which is illegal and, therefore, the same deserves to be set aside. He has also submitted that even if the finding of guilt, recorded by learned trial Court, is affirmed against the appellants, the sentence awarded therefor is too excessive and harsh.

13. Per contra, learned A.G.A. has opposed the submissions made by learned counsel for the appellants. He submits that the accused-appellants have been convicted by the learned trial Court after proper appreciation of evidence available against them. There is nothing on record to show that the appellants were falsely implicated in this case.

14. Learned A.G.A. has further submitted that the prosecution has proved its case against the appellant on the basis of cogent evidence. The appellant has been convicted by the impugned judgment and order which is well discussed and reasoned wherein no interference by this Court is warranted.

15. Having heard learned counsel for parties and upon perusal of the records, this Court finds that the PW-1, Ashutosh Srivastava and PW-2, Mohammad Nafees have proved the written report, Ext. Ka-1 and have stated that they along with Alok Choudhary were going to attend their coaching class from Sachivalya Colony. They were assaulted by the accused persons, namely, Neeraj and the present appellants due to some scuffle between Neeraj Kumar and Alok Choudhary. The accused, Neeraj Kumar brought a scissors from a nearby shop of florist and started assaulting Alok Choudhary from the scissors. The present appellants/accused also assaulted the Alok Choudhary by spoons, shoes and sleepers.

16. The PW-7, Km. Arti Choudhary, who is the real sister of the deceased, Alok Choudhary, however, she is not an eye witness of the incident. She has stated to have seen his brother in an injured condition when he was brought on a Rickshaw and she took the deceased to the hospital.

17. Having heard learned counsel for parties and upon close scrutiny of the testimonies of prosecution witnesses, this Court finds that the prosecution story as contained in written report, Ext. Ka-1, qua the present appellants, Shashi Kant Chaudhary, Surendra Kumar Bhatt and Ajay Rawat stands proved in the light of testimonies of first informant/PW-1, Ashutosh Srivastava and injured/PW-2, Mohammad Nafees so far as the offence under Section 323 I.P.C. is concerned. The learned trial Court had rightly recorded the finding of guilt of accused-appellants under Section 323 I.P.C. only as they were not sharing any common intention to kill the deceased on the date of incident with the accused, Neeraj Kumar. Therefore, no perversity or illegality appears in the finding of guilt recorded against the accused-appellants by the learned trial Court by means of impugned judgment, wherein no interference by this Court is warranted.

18. It has been submitted by learned counsel for the appellants that the appellants have undergone a trauma of facing criminal trial from 1999 to 2002. Thereafter, the present appeal is also pending for 20 years. The appellants do not have any criminal history and they are not previous convicts too. Therefore, they deserves sympathetic indulgence of this Court by sentencing them to fine only.

19. There is nothing on record to show that the appellants are either having any criminal antecedents or they are prior convict. Therefore, having regard to the fact that the appellants have been convicted and sentenced for a period of one year's imprisonment for the offence under Section 323 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 appellants ought to have been extended benefit of provisions of Probation of Offenders Act, 1958.

20. 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."

21. 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."

22. 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."

23. 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."

24. 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.

25. In the light of the above discussions, I find no illegality in the impugned judgment. Thus, the conviction of the appellants under Sections 323 is upheld. However, sentence, as indicated above, is liable to be modified.

26. The upshot of aforesaid discussion is that the conviction of the the appellants under Sections 323 I.P.C. is upheld, however, the sentence is 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. 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 one year. The bonds aforesaid be filed by the appellants within eight weeks.

27. 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.

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

29. Let a copy of this judgment be placed on the records of Criminal Appeals No.98 of 2002 and 100 of 2002.

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

Order Date :- 27.07.2022

A.Dewal

[Ajai Kumar Srivastava-I, J]