Ram Pal Singh And 2 Ors. vs State Of U.P.
2023 Latest Caselaw 1663 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Reserved on 5.1.2023
 
Delivered on 17.1.2023
 
Court No. 14
 
Case :- CRIMINAL APPEAL No. - 429 of 2004
 

 
Appellant :- Ram Pal Singh And 2 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant : Ashok Kumar Singh
 
Counsel for Respondent : Govt.Advocate
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. Heard Sri Ashok Kumar Singh learned counsel for the appellant and Sri Arvind Kumar Tripathi, learned A.G.A. and perused the record.

2. The present appeal has been preferred against the judgment and order dated 4.2.2004 passed by the Additional District and Sessions Judge/Fast Track Court No. 2, Unnao in S.T. No. 372 of 2001 arising out of crime no. 98 of 2001, Police Station- Bangarmau, District- Unnao by which the appellants-Ram Pal Singh, Shiv Mangal Singh and Jai Pal Singh were convicted under Section 452 I.P.C. for three years rigorous imprisonment each and fine of of Rs. 1000/- and under Section 506 (2) I.P.C. for five years rigorous imprisonment and fine of Rs. 1000/-

3. The brief facts of the present case are that F.I.R. of the present case has been lodged by the complainant/first informant against the appellants with the allegations that earlier the complainant lodged the F.I.R. in P.S. Bangarmau for kidnapping of her minor daughter, as the appellants have cooperated the co-accused for kidnapping of her minor daughter. The appellants several time extended threat to withdraw the case of kidnapping but the first informant/complainant did not do so. On 17.3.2001 at about 9:30 a.m. when the complainant was talking with his cousin in his courtyard then the appellants- Ram Pal Singh, Shiv Mangal Singh and Jai Pal Singh, who are sons of Gaya Singh, entered in the house of complainant and abused as soon as they came inside the hosue and extended threat to the complainant to withdraw the case and told that if he did not withdraw the case, he would be killed. When the complainant refused to do so, then only on the hearing of refusal, all the three appellants whip out their country made pistol and thereafter Shiv Mangal and Jai Pal exhorted Ram Pal to kill complainant- Gendan. The complainant with fear ran away and closed the door then with intention to kill, the appellants opened fire. The pellets of the bullet hit wall and door. Thus, if the complainant failed to close the door, he would got gun shot injury. The appellants finally abusing and threatening to kill ran away. The said incident was witnessed by Sri Ram, complainant' son, namely, Bhura and complainant's wife, Smt. Ram Beti. A written report Ext. Ka-1 regarding the alleged incident was lodged against the appellants on 17.3.2001 at 10:30 as case crime no. 98/2001 under Sections 452, 504, 506, 307 I.P.C.

4. The investigation of the present case was entrusted to the Investigating Officer- N.C. Yadav, who prepared site plan and recorded the statement of the witnesses. During the course of investigation, the Investigating Officer rushed to the spot and collected the pellets. The Investigating Officer also prepared recovery memo as Ext. Ka-3. After competing all the formalities of the investigation, the Investigating Officer filed charge sheet under Sections 307, 452, 506 I.P.C. on 25.5.2001 against the appellants. This charge sheet was filed before C.J.M. , Unnao where case was registered as case no. 3195 of 2001 and cognizance order was passed by the C.J.M. on 26.5.2001. Then this case was committed for court of sessions and registered as S.T. No. 372 of 2001 on 5.9.2001. The case was transferred to the ASJ, Court No. 3. Later on, the case was transferred to FTC, Court No. 2 for trial and the charges against the appellant were framed on 27.7.2002 under Section 307/34, 504, 506, 452 I.P.C. The charges were read over to the appellants to which they denied all the allegations levelled against them. The appellants claimed to be tried.

5. In order to prove his case, on behalf of the prosecution, P.W.1-Gendan, P.W.-2-N.C. Yadav, (I.O. of the present case), P.W.-3- Sri Ram Tiwari and P.W.4- Ram Beti, P.W.-5 S.I.-Balveer Singh and P.W.-6-Constable/clerk were examined.

6. P.W. -1-Gendan, who is complainant of the present case, has supported entire version of the prosecution and proved the written report as Ext. Ka-1.

P.W.-2-S.I. N.C. Yadav, who stated before the Court that the investigation was entrusted to him and he also proved the site plan as Ext. Ka-2 and recovery memo of pellets as Ext. Ka-3.

P.W.-3 Sri Ram Tiwari, who supported the version of the P.W.-1.

P.W. -4-Smt. Ram Beti, who is eye-witness and wife of P.W.-1 (first informant) also supported the entire version of the prosecution.

P.W.-5 S.I.-Balveer Singh, who is second I.O., has stated before the court that firstly the investigation of the case was entrusted to the first I.O., who has been transferred to Lucknow. The Investigating Officer also recorded the statements of accused- Ram Pal Singh and Jai Pal Singh and filed charge-sheet against the appellant under Sections 307, 504, 504, 452 I.P.C. and proved the charge sheet as Ext. Ka-4. P.W.-6-Constable/Clerk, Har govind Singh, proved the Chik F.I.R. as Ext. Ka-5 and G.D. report as Ext.Ka -6. Thus, the prosecution relied on the oral evidence of P.W.-1 to P.W.-6 and documentary evidence as Ext. Ka-1 to Ext-Ka-6.

7. After recording the testimony of the witnesses, the statements of the accused/appellants were also recorded under Section 313 Cr.P.C. by the trial court explaining the entire evidence and other incriminating circumstances against the appellants. In the statement recorded under Section 313 Cr.P.C. , the appellants denied the entire prosecution story in toto. They stated that they have falsely been implicated in the present case due to party bandi. Learned counsel for the appellants submitted that the appellants have not chosen to lead any evidence.

8. After hearing learned counsel for both the sides and appreciating the oral and documentary evidence available on record, the learned trial court convicted the accused/appellants as aforesaid. Therefore, the present appeal is filed by the appellants.

9. Learned counsel for the appellant submitted that alleged incident has taken place on 17.3.2001. Appellants are convicted under Section 452, 506 I.P.C. and exonerated under Section 307 and 504 I.P.C. Several submissions have been raised by the learned counsel for the appellants to show the innocence of the appellants. Learned counsel for the appellants submitted that in the alleged incident no body have got any injury. The case is pertaining to the year, 2001 and the appellants were convicted on 4.2.2004. The matter is pending for about 23 years ago and harsh punishment under Section 506 I.P.C. is provided by the trial court. It is also submitted that during trial the appellants were in jail for about one month. There is no criminal history against the appellants. The appellants as well as complainant were well rooted in the society. He further submits that it is an old matter and the appellants may not be sent to jail. He further submits that the appellants are ready to pay compensation to the injured/complainant.

10. Lastly, learned counsel for the appellant submitted that there are sufficient reasons to challenge the judgement on merit, as there are non consideration of Section 4 of Prevention of Offender Act, 1958, therefore, he seeks leniency.

11. Learned A.G.A. vehemently opposed and submitted before the Court that the prosecution is fully able to prove the charges against the appellants. Therefore, learned trial court after appreciating the evidence available on record rightly convicted the appellants.

12. Since learned counsel for the appellants restricted his arguments to grant punishment of probation, therefore, in these circumstances, It would be appropriate to quote Section 360 Cr.P.C., 361 Cr.PC. 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.

13. 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?

14. 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."

15. Coming to the sentence to be imposed on the appellant, since the incident occurred near about 22 years ago and during intervening period The appellants have 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.

16. In the present appeal fine of Rs.1,000/- has been imposed by the trial court on the appellant. 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 Sections 308, 504 and 506 IPC and is directed to be released on probation and under section 4 of the U.P. of the Probation of Offenders Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond of Rs.10,000/- and to sureties of the like amount before the Court.

17. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C. and Section 5 of the Probation of the Offenders Act, 1958, I am of the view that compensation should be awarded to the complainant -Gendan.

18. Therefore, fine of Rs.2,000/- to each appellants is enhanced to Rs.5,000/-, each. Thus, Rs. 15,000/- shall be deposited by the appellants. Out of Rs. 15,000/-, Rs. 9,000/- shall be provided to complainant -Gendan, if he is alive. Remaining Rs. 6,000/- shall be deposited before the Court as fine. In case of death of the complainant, same shall be payable to his legal heirs. If the appellant fails to pay alleged amount then, he shall undergo simple imprisonment of one year and sentence as provided by the trial court. Fifteen days time is granted to appellants to deposit the fine as mentioned by this Court.

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

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

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

Order Date :- 17.1.2023

Anuj Singh