Abu Talib And Ors.2 vs State Of U.P.
2023 Latest Caselaw 3456 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved  on: 18.01.2023
 
Delivered on: 03.02.2023
 
Court No. - 14
 
Case :- CRIMINAL APPEAL No. - 466 of 2001
 
Appellant :- Abu Talib And Ors.2
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ajmal Khan
 
Counsel for Respondent :- Govt. Advocate,Prem Prakash Singh
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard Mr. Azmal Khan, learned counsel for appellant, Mr. Prem Prakash Singh, learned counsel for complainant and Ms. Shikha Sinha, learned A.G.A. for the State and perused the trial court record.

2. This criminal appeal has been preferred by appellants challenging the impugned judgment and order dated 26.06.2001 passed by learned Additional Sessions Judge (Fast Track Court), Pratapgarh in Sessions Trial No. 103 of 1994, arising out of Case Crime No. 22 of 1990, under Sections 307/34 & 323/34 IPC, Police Station Raniganj, District Pratapgarh. By the said judgment, the appellants has been convicted and sentenced for offence under Section 307/34 IPC for ten years rigorous imprisonment and fine of Rs. 10,000/- each. In default of payment of fine, they were to undergo for three months additional imprisonment. For the offence under Section 323/34 IPC for six months rigorous imprisonment. Both the sentences were directed to run concurrently.

3. Brief facts of this case emerges out as under:-

An FIR was lodged by complainant Ismail with the allegation that on 2.2.1990 at 9:00 a.m., dried bush of acacia was lying in the way near his house by which the pathway was obstructed. When the informant Ismail and his daughter Kismatulnishan tried to remove the said bush then due to old enmity, the appellants on the exhortation of co-accused Fariduddin; other appellants started threatening with dire consequences and attacked with lathi on the head of Kismatulnisha. The complainant tried to save his daughter then all the appellants also inflicted lathi blow to complainant. On the shrieks of complainant, Shamshad Ali, Murtaza and other villagers rushed towards the place of occurrence and intervened. Due to this incident, injured Kismatulnishan received grievous injuries. FIR of this case was lodged by complainant Ismail. On the basis of this written report, FIR of this case was lodged on 2.2.1990 at 15:05 hours against the accused appellants. After lodging of this FIR, investigation of this case was entrusted to Investigating Officer Nehal Ahmad.

4. Before lodging the FIR injured Kismatulnishan was examined before the District Hospital Pratapgarh on 2.2.1990 at 11;45: a.m. and following injuries were found on her body:-

(i) Lacerated wound 5 cm. x 1 cm. x scalp deep left side head above 2 cm. left ear. Fresh bleeding was present.

(ii) Complain of pain on left side chest during respiration. On examination tenderness is present over the lower rib.

5. Both the injuries were kept under observation. The injury was caused by some hard and blunt object. The duration was over three-four hours late.

6. The injury of injured Kismatulnishan was kept under observation. As per x-ray report, so far as injury no. 1 is concerned, no any discrepancy was seen on the head of Kismatulnishan. But as per x-ray of chest, there was fracture of 9th, 10th and 11th ribs of left side.

7. Other injured Ismail was also examined in District Hospital, Pratapgarh at 12:02 hours on the same day and following injuries were seen:-

(i) Lacerated wound 1 c.m. x ½ cm. x scalp deep, on right side head, 11 c.m. right along right pinna, fresh bleeding present.

8. The injury was simple in nature and caused by some hard and blunt object and duration was about 3-4 hours late.

9. During course of investigation, the Investigating Officer collected medical reports of the injured persons and statements of first informant and injured and several other persons were recorded. During investigation also the Investigating officer prepared site plan on the pointing out of the first informant.

10. After completing all the formalities of the investigation, the Investigating Officer filed charge sheet before the court concerned against all the appellants under Sections 323, 504, 506, 325 and 307 IPC. Thereafter the case was committed on 27.10.1994 to the court of sessions for trial, which is registered as Sessions Trial No. 103 of 1994.

11. At the time of framing of charge, co-accused Fariduddin was reported to be no more, so the trial was abated by the trial court. After hearing both the parties, the charges were framed against the accused appellants under Section 307/34 and 323/34 IPC in which charges were read-over to the appellants in hindi to which they denied all the allegations levelled against them and claimed to be tried.

12. In order to prove its case, the prosecution has examined the following witnesses:-

(i) PW-1 Mohd. Ismail, who is the complainant of this case. He proved the written report as Ex. Ka-1.

(ii) PW-2 Kismatulnishan was examined. She is also an injured witness. She has stated in her statement that due to old enmity, the assailant committed Maarpeet with lathi, kicks and fists, due to this reason, she got injuries on her head and left side of ribs. She remained in hospital about 13 days. Thus she supported the entire version of the prosecution.

(iii) PW-3 Dr. Ajit Kumar Kulshreshtha, who proved the injury report of PW-2 injured Kismatulnishan as Ex. Ka-2 and injury report of PW-1 complainant injured Ismail as Ex. Ka-3. He also proved x-ray report as Ex. Ka-4 as secondary evidence.

(iv) PW-4 Shamshad Ahmad, eyewitness of the alleged incident. He is independent witness and has supported the prosecution case. There is no material contradictions in the statement of this witness.

(v) PW-5 Nehal Ahmad has stated that this case was registered in his absence and later, the investigation of this case was entrusted to him. During course of investigation, he prepared the site plan, which has been proved as Ex. Ka-5. After collecting the x-ray and x-ray report and injury report, he converted the case under Section 307 and 325 IPC. During investigation he prepared recovery memo of bloodstained clothes, which has been proved as Ex. Ka-6 and charge sheet was proved by him as Ex. Ka-7. Thus he is a formal witness.

13. Thus the prosecution has relied upon the oral evidence of PW-1 to PW-5 and Ex. Ka-1 to Ex. Ka-7 as documentary evidence.

14. Subsequent to closure of prosecution evidence, statement of appellants under Section 313 Cr.P.C. was recorded by trial court explaining entire evidence and other incriminating circumstance. In statement recorded under Section 313 Cr.P.C., the accused appellant denied prosecution version and stated that at the time of incident they were not present on the place of occurrence. The appellants have falsely been implicated. In defence, they did not choose to lead any evidence.

15. After hearing both the parties and appreciating entire oral and documentary evidence available on record, the trial court convicted the accused appellants as aforesaid.

16. Learned counsel for appellants has submitted that the appellants are innocent and have falsely been implicated in this case. Further submission is that there are material contradictions in the statements of PW-1 and PW-2. As per prosecution version, three persons inflicted with lathi but only two injuries were seen on the body of the injured Kismatulnishan. It is further submitted that the place of injury, which was inflicted to Kismatulnishan was not found on the vital part. Therefore, the case under Section 307 IPC is not made out against the appellants. The trial court without appreciating the evidence available on record, has wrongly convicted the appellants under Section 307 IPC. If the prosecution case is admitted in toto, then the case does not travel beyond the purview of Section 325 IPC.

17. Learned counsel for appellants has lastly submitted that the matter pertains to the year 1990 and 33 years have already passed. The first informant Ismail and co-accused Fariduddin is no more. Both of them were the real brother but injured PW-2 Kismatulnishan is the daughter of first informant and other appellants are the cousin. Presently both the parties, the appellants and injured Kismatulnishan, who is 76 years old and cordial relations developed between them, are well rooted in society. He further submits that it is an old matter and no fruitful purpose would be served to send the appellants in jail. Further submission is that the appellants are ready to pay compensation to the injured. The appellants have not been convicted previously for any offence, therefore, lenient view may be taken against the appellants.

18. It is further submitted that if the prosecution case admitted in toto, the case does not travel beyond Section 325 IPC. Further learned counsel for appellants submitted that though there are sufficient reason to challenge the judgment on merits yet they are restricting the challenge to non-consideration of the applicability of provision contained in Section 4 of Probation of Offenders Act, 1958 (in short "Probation Act") and Section 360 Cr.P.C. as the offence under Section 325 IPC is made out against the appellant.

19. Learned A.G.A. for the State has opposed the appeal and has submitted that there is no material irregularity or illegality committed by the trial court. Further submission is that keeping in view the evidence available on record the accused- appellant has rightly been convicted by the trial court.

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

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.

21. It is rightly contended by the learned counsel for the appellant 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 Section 325 IPC also.

22. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?

23. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:

"While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."

24. Coming to the sentence to be imposed on the appellant, since the incident occurred near about 31 years ago and during intervening period he had not indulged into any criminal activity nor he had any criminal background, so in view of the above, considering the entire facts and circumstances of the case.

25. In the present appeal fine of Rs.10,000/- each has been imposed by the trial court on the appellants. Section 357 Cr.P.C. empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry as well as considering the submission of learned counsel for appellant as earlier, this Court is of the view that benefit of Section 4 of the Probation of First Offender Act, 1958 should be provided to the appellants. Thus the appeal is partly allowed. The conviction as directed by trial court under Section 307 IPC is converted to Section 325 IPC as prima facie offence does not travel beyond the purview of Section 325 IPC. Thus the conviction under Section 325/34 and 323/34 IPC is confirmed and the appellants are directed to be released on probation under Section 4 of the U.P. Probation of First Offenders Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs.40,000/- before the Court.

26. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C., I am of the view that compensation should be awarded to the victim's family.

27. Therefore, fine of Rs.10,000/-each is enhanced to Rs.30,000/-each, which shall be deposited before the trial court. Out of Rs.90,000/-, Rs. 60,000/- shall be paid to injured Kismatulnishan and Rs. 30,000/- shall be deposited in State Exchequer. If the appellants fail to pay aforesaid amount then, they shall undergo imprisonment and sentence as directed by they trial court. Fifteen days time is granted to appellants to deposit the fine as mentioned by this Court. The appellants are on bail. They need not to surrender.

28. Fifteen days is provided to the appellants to deposit fine amount from the date of production of a certified copy of this order.

29. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence.

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

Order Date :- 03.02.2023

Virendra