Ram Pyare Singh @ Batoohi And ... vs The State Of U.P.
2023 Latest Caselaw 5915 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 263 of 2002
 

 
Appellant :- Ram Pyare Singh @ Batoohi And Another.
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- M.Naseerullah,Rajan Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for appellant, Mr. Arvind Kumar Tripathi, learned A.G.A. for the State and perused the trial court record.

2. This criminal appeal has been preferred by appellant challenging the impugned judgment and order dated 14.02.2002 passed by learned Additional District & Sessions Judge (Fast Track Court-II), Sultanpur in Sessions Trial No. 97 of 1996, whereby accused appellants have been convicted and sentenced to five years rigorous imprisonment under Section 436 read with Section 34 IPC with fine of Rs. 5,000/- each. The trial court further directed that in case of default of payment of fine, the appellant shall undergo sentence of six months additional imprisonment.

3. In short the prosecution case is that complainant of the case has installed a tube-well on his land bearing Gata No. 105/1543, apart from tube well, a five horse power motor starter switch, ampere meter were also installed. In order to save appliances, the complainant also raised a Chhapper. It is said that on 04.07.1994 at about 2:00 p.m. accused appellants came on a motorcycle and put the fire in the Chhapper, which was extinguished with the help of villagers, who had reached on the spot. The above incident was witnessed by Om Prakash Singh, Pankaj Singh ,Ram Pyare Pal, Mitra Sent Singh and others. It is also said that on account of caught fire in the Chhapper, the complainant had suffered a loss of Rs.15,000/-.

4. On the basis of written report, Case Crime No. 348 of 1994 under Section 436 PC was registered at Police Station Kadipur, District Sultanpur.

5. The Investigation of this case was conducted by Investigating Officer P.N. Dwivedi, who inspected the spot, prepared site plan and recorded the statements of witnesses. The Investigating Officer after due investigation and completion of investigation, submitted charge sheet against the accused persons. Before the court concerned, the accused appellants denied the charges levelled against them and claimed to be tried.

6. The prosecution in order to prove its case has examined PW-1 Uday Bhan Singh, PW-2 Vineet Kumar, PW-3 Constable Ram Surat Singh, PW-4 Prakash Narain Dwivedi.

7. In addition to above, the prosecution has also produced documentary evidence i.e. check FIR (Ex. Ka-2), G.D. (entry Ex. Ka-3), recovery memo (Ex. Ka-4) prepared by PW-3 and site plan (Ex. Ka-5).

8. The statement of the accused appellants were recorded under Section 313 Cr.P.C. wherein they denied the charge levelled against them and stated that the witnesses are deposing against them on account of enmity. In addition, they have also stated that their uncle Bhagauti Singh had a chak measuring three biswa of which office document was fabricated by the complainant. In this regard, a case is also going on in the court of Consolidation Officer.

9. The trial court after considering the statements of witnesses, evidence available on record, came to the conclusion that the prosecution has been successful to prove its case beyond reasonable doubt against the accused appellants and as such, convicted the appellants as above.

10. Learned counsel for appellants has vehemently argued that findings of the guilt recorded by the trial court are not based on correct facts available on record. The trial court failed to consider that false implication cannot be ruled out as the litigation between the parties were going on but this aspect of the mater has not been considered by the trial court. Lastly it has been argued that the incident relates to the year 1994 since then around 30 years have passed, the appellants have become quite old and after the incident, both the parties are living happily in the village and no untoward incident has ever occurred between them. Since the incident had taken place about 30 years ago, therefore, learned counsel for appellants has submitted that leniency may be given to the appellant as no fruitful purpose would be served by sending the appellants to jail again. Sending the appellants in jail would give rise to enmity again between the parties.

11. Learned A.G.A. for the State, while refuting the submission of learned counsel for appellants, has submitted that the finding of guilt recorded by the trial court are based on correct appreciation of evidence available on record. The prosecution has fully supported the prosecution case and there are no contradictions in the statements of the witnesses, therefore, the appeal is liable to be dismissed.

12. In rebuttal learned counsel for appellants has submitted that offence under Section 436 IPC is not covered.

Section 436 IPC reads as under:-

436. Mischief by fire or explosive substance with intent to destroy house, etc.--Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

13. Learned counsel for appellant has submitted that the place of occurrence was not the place which was used as the place of worship or as a human dwelling or as a place for the custody of property. At the place of occurrence only a five horse power motor starter switch, ampere meter were destroyed, therefore, the case of the appellant is covered under Section 435 IPC in which no minimum sentence is provided and the maximum sentence is upto seven years. If the case of the prosecution is accepted in toto, the case does not travel beyond the Section 435 IPC.

14. During course of argument, learned counsel for appellants has submitted that the interest of justice would suffice, if appellants are sentenced to the period already undergone by them and enhancing the fine. 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") .

15. 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.

16. This Court also agree with the argument of learned counsel for appellant that this case does not travel beyond the purview of Section 435 IPC. Therefore, the conviction of appellant under Section 436 IPC is converted into Section 435 IPC. Thus the conviction of the appellant is hereby affirmed under Section 435 IPC. The maximum sentence under Section 435 IPC is provided upto seven years. Further, 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 Section 435 IPC also.

17. 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?

18. 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."

19. Coming to the sentence to be imposed on the appellant, since the incident occurred near about 33 years ago and during intervening period the appellants had not indulged into any criminal activity nor they had any criminal background, so in view of the above, considering the entire facts and circumstances of the case.

20. In the present appeal fine of Rs.5,000/- 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 is confirmed under Section 435/34 IPC and is 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.30,000/- each before the Court.

21. 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.

22. Therefore, fine of Rs.5,000/- each is enhanced to Rs.35,000/- each, which shall be deposited before the trial court. Out of Rs. 70,000/-, Rs. 60,000/- shall be paid to the complainant, if he is alive. If the complainant is not alive, the same shall be given to his legal heirs and Rs. 10,000/- shall be deposited in State exchequer. It is made clear that if the appellants fail to pay aforesaid amount then, they shall undergo imprisonment and sentence as directed by they trial court. One month's time is granted to appellants to deposit the fine as mentioned by this Court. The appellants are on bail. They need not to surrender.

23. One month's time is provided to the appellants to deposit fine amount from the date of production of a certified copy of this order.

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

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

Order Date :- 23.02.2023

Virendra