Allahabad High Court
Subedar And Another. vs State Of U.P. on 29 August, 2023
Bench: Jyotsna Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:57971
Court No. - 29
Case :- CRIMINAL APPEAL No. - 462 of 2006
Appellant :- Subedar And Another.
Respondent :- State of U.P.
Counsel for Appellant :- Mohd.Kamal Khan,Afaq Zaki Khan,Shiv Shankar Verma
Counsel for Respondent :- Govt.Advocate
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard SriAfaq Zaki Khan, learned counsel for appellant and learned A.G.A. for the State and perused the record.
2. The appellant-Ram Nath is present in-person as well, who is identified by his counsel.
3. By means of this criminal appeal the convict-appellant-Ram Nath has challenged the order dated 25.01.2006 by which learned Additional Sessions Judge, Fast Track Court, Hardoi in S.T. No. 192 of 1999 arising out of case crime no. 159 of 1998 convicting the appellant under Sections 336/34 I.P.C. and sentenced to undergo a rigorous imprisonment for a period of three months and a fine of Rs. 250/- and in default of fine further undergo simple imprisonment for a period of 15 days. The appellant further convicted under sections 506/34 IPC and sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs. 250/- and in default to pay a fine further undergo a simple imprisonment for a period of 15 days. The appellant further convicted under section 325/34 IPC and sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs. 500/- and in default to pay fine, further undergo a simple imprisonment for a period of one month.
4. During course of hearing the appellant has submitted that he does not propose to challenge order of conviction and will confine his contentions on the point of sentence only. Learned A.G.A. has no objection in case contentions are confined on the point of sentence only.
5. It is submitted on behalf the appellant that case is fully covered by the provisions of Section 4 of the Probation of Offenders Act, 1958, but the trial court, on the request of defence to release him on probation, did not consider the relevant facts and circumstances and passed an arbitrary order declining his prayer. In case he was granted benefit of Probation of Offenders Act, 1958 by the trial court or appellate court, the interest of justice would have been served.
6. There is no dispute as to the fact that the incident with regard to which the appellant has filed this appeal occurred on 26.04.1998; the judgment was pronounced convicting the appellant and one more in 2006. One of the appellant accused Subedar died during the course of the instant appeal. Appeal as regard appellant no. 1 has abated. Appellant no. 2-Ram Nath is now the lone appellant, who is alive and is facing this criminal litigation since last about 25 years. He is now more than 70 years old. He has no criminal history
7. As per provisions of Section 11 of the Probation of Offenders Act, 1958 powers available to the trial court are available to the courts of appeal and courts of revision as well. There is no legal obstacle in exercise of powers given under the provisions of the Probation of Offenders Act, 1958 by the appellate court. In my opinion, taking peculiar facts and circumstances of this case as well as taking into account the lapse of period between date of occurrence, the date of impugned judgment and hearing of this appeal, the accused appellant is entitled for benefit provided under Section 4 of the Probation of Offenders Act, 1958 subject to conditions as below:
(i) the accused appellant-Ram Nath is released on probation under Section 4 of the Probation of Offenders Act, 1958 for a period of one year from the date of execution of bonds.
(ii) for the above purpose the accused appellant shall file two sureties of Rs. 20,000/- each and personal bonds of the same amount before the court concerned within a period of two weeks from today.
(iii) Under the provision of Section 5 of the Probation of Offenders Act, 1958 the appellant shall deposit an amount of Rs.10,000/- which shall be paid to the injured/first informant- Srikrishna, (in case he is alive) or to his legal heirs (if not) as compensation, within next one month.
(iv) during the probation period he shall not indulge in any anti-social and criminal activities and shall keep peace in society.
8. In case of breach of any of the aforesaid conditions, the accused-appellant will subject himself to undergo the sentence as prescribed by the trial court.
9. While the conviction in terms of order passed by the appellate court is maintained the sentence order is accordingly modified and the appeal is disposed of.
10. Let the copy of this judgment as well as the lower court record, if received, be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 29.8.2023
*Vikram*
