Pratap Singh vs State Of U.P.
2023 Latest Caselaw 12299 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 122 of 2005
 

 
Appellant :- Pratap Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S.Verma,Abdul Rafique,Vinay Prakash Katiyar
 
Counsel for Respondent :- Govt.Advocate
 

 
				and
 
Case :- CRIMINAL APPEAL No. - 181 of 2005
 

 
Appellant :- Vijay Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Atulesh Kumar Singh,Abdul Rafique
 
Counsel for Respondent :- Govt.Advoate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for appellants as well as Sri Arvind Kumar Tripathi, learned AGA for the State and perused the record.

2. The aforesaid criminal appeals under Section 374 (2) CrPC have been preferred against the judgement and order dated 13.1.2005 passed in S.T. No. 605 of 2000 passed by Additional Sessions Judge, F.T.C., Court No. 5, Lucknow whereby Appellants Pratap Singh as well as Vijay Kumar were convicted by order dated 13.1.2005 under Sections 148, 353 read with section 34 IPC and 332 read with 34 IPC and both the appellants have imprisonment of one and half year in Section 148 IPC with fine of Rs. 500/- in default 20 days rigorous imprisonment and under section 353/34 IPC one year rigorous imprisonment with fine of Rs. 300/- with default of fine of 10 days additional imprisonment and 332/34 IPC one and half year and fine of Rs. 500/- in default 20 days more additional imprisonment and all the sentences shall run concurrently.

3. In short, the prosecution case is that on 4.8.1997 at about 21:35 hours constable Surendra Prasad, Police Station Gudamba lodged a written report on 4.8.1997 alleging therein that on 4.8.1997 he along with constable Rajesh Yadav was on petrol duty in village Chetanpurva. At about 9.00 p.m. they saw two persons coming on a scooter and were found in suspicious condition. On the checking point several villagers were present who said that they are criminals. When they were intercepted, they started marpeet. However, with the help of villagers, namely, Ram Singh brother of Vijay Kumar, Raju @ Guddu, Shiv Nath @ Shyam and Santlal they caught the criminals. Accused Pratap who was armed with countrymade pistol fired a gunshot but it did not hit anyone. The accused persons after taking the advantage of the darkness ran away.

4. On the basis of the aforesaid written report of constable Ramayan Prasad, a case on Crime No. 129 of 1997 under Sections 147, 148, 307, 353, 332 IPC was registered. The investigation of the case was entrusted to sub inspector R.C. Yadav.

5. The injured were examined in Bhaurao Devsas Hospital Mahanagar whereas injured Rajesh was medically examined at Balrampur Hospital.

6. The investigating officer after recording the statement of the witnesses, preparing the cite plan and completing other necessary formalities submitted a chargesheet against the accused persons under Sections 147, 148, 149, 307, 353, 323, 332 IPC.

7. After committal of the case to the Court of Sessions Judge, the charges were framed under Sections 147, 148, 353/149, 332/149 IPC against accused Raju @ Guddu, Vijay, Shiv Nath @ Shivas, Ram Singh, Jodinder and Santlal whereas against accused Pratap charges were framed under Sections 147, 148, 353/149, 332/149, 307 and 323 IPC. The accused persons were treated not guilty and claimed to be tried.

8. The prosecution in support of this case examined Surendra Prasad (PW-1), constable Rajesh Yadav (PW-2), Dr. M.K. Gupta (PW-3), Jagannath (PW-4), Dr. V.S. Brora (PW-5), Ram Chandra Yadav (PW-6), constable Ramayan Prasad (PW-7).

9. After recording all the statement of the prosecution witnesses, the statement of the accused under Section 313 CrPC was recorded wherein they stated that the witnesses are deposing falsely against them due to enmity. In defense they also produced Mithai Lal as (DW-1).

10. Learned Sessions Judge after appreciating the evidence on record stated that the prosecution has successfully been able to prove its case beyond doubt against the accused persons and accordingly convicted them as stated above and acquitted the remaining accused.

11. Learned counsel for the appellants has argued that learned trial court has committed an error in relying upon the testimony of the police witnesses who are not independent witnesses. The trial court also did not appreciate the fact that the public witnesses were inimical to them and as such they deposed against them. The findings recorded by the trial court are not based on correct appreciation of evidence on record and as such the conviction of the appellants is liable to be set aside. Lastly it has been argued that learned trial court also committed an error in not giving the benefit of probation under the provisions of First Offenders Act.

12. On the other hand, learned AGA for the State submits that the findings of fact recorded by the trial court are based on proper appreciation of evidence, there was no occasion for the injured witnesses to depose against them and allowing the real culprits to go scotfully.

13. After hearing the learned counsel for the parties and scrutiny of evidence on record, I am of the opinion that findings of guilt recorded by the trial court are based on proper evidence and cannot be said to be erroneous. However, learned trial court committed an error in not considering the fact that the appellants have never been convicted or sentenced in any criminal case and have no criminal antecedents. As a matter of fact appellants were entitled to be released on probation being first offenders.

14. As learned counsel for appellants has claimed benefit of probation, it would be appropriate to reproduced Section 360 CrPC which deals with the release on probation of good conduct or after admonition.

15. It would be appropriate to quote Section 360 Cr.P.C. reads as follows:-

"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 subsection 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 recognisance, 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 warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and 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 1951), 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."

Section 361 Cr.P.C. reads as under:-

361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-

(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or

(b) a youthful offender under 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, but has not done so, it shall record in its judgment the special reasons for not having done so.

Section 3, 4 and 5 of the Probation of First Offenders Act reads as under:-

Section 3- Power of court to release certain offenders after admonition.

When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.

Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Section 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.

Section 5-Power of court to require released offenders to pay compensation and costs.

(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay-

(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and

(b) such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section(1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.

16. It is rightly contended by the learned counsel for the appellants that the effect, relevance and applicability of Section 360 Cr.P.C. have not been considered by the trial court and appellants deserve probation under Sections 148, 353/34, 332/34 IPC.

17. Thus, the appeals are partly allowed. The conviction as directed by trial court under Sections 148, 353/34 and 332/34 IPC is hereby confirmed and the appellants are directed to be released on probation under Section 4 of the U.P. First Offenders' Probation Act with stipulated condition that he shall keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs. 40,000/- each before the court concerned.

18. In view of above, both the appeals are dismissed on point of conviction, however, on the point of sentence both the appeals are partly allowed giving the appellants benefit of probation.

19. Office is directed to communicate this order to the trial court concerned. The trial court record be sent back.

Order Date :- 21.4.2023

Arpan