Ram Charan And Another vs State Of U.P.
2023 Latest Caselaw 19814 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:153513
 
Court No. - 81
 
Case :- CRIMINAL REVISION No. - 2417 of 1999
 

 
Revisionist :- Ram Charan And Another
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- V.S.Kushwaha,Vijaya Shankar Shukla
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard learned counsel for the revisionists and Sri Om Prakash Mishra, learned A.G.A. for the State and perused the record.

2. This revision has been preferred by revisionist no. 1 Ram Charan against the order of conviction and sentencing passed by the Additional Chief Judicial Magistrate-IV, Budaun in Criminal Case No. 1972 of 1996 (Mishri and Another Vs. State of U.P.), P.S. Ughaiti, District Budaun. By the impugned order the learned Magistrate had convicted the accused persons under Section 323 IPC read with section 34 IPC and 452 IPC and exonerated them from the charges under Sections 325, 504 and 506 IPC. The learned trial court convicted the revisionist under Sections 323 IPC read with section 34 IPC for one year rigorous imprisonment and two years rigours imprisonment under Section 452 IPC. However, no fine was imposed.

3. The impugned order was challenged in the Court of Sessions Judge in Criminal Appeal No. 89 of 1998 (Mishri and Another Vs. State of U.P.) which was decided by the Sessions Judge Budaun on 26.11.1999 in which he partly allowed the appeal and reduced the sentence. He awarded six months rigorous imprisonment under section 323 IPC read with section 34 IPC and reducing the sentence awarded under section 452 IPC sentenced the accused for one year rigorous imprisonment.

4. Being aggrieved this revision has been preferred on following grounds:-

"That the judgment and order passed by the courts below are not only illegal but also against the evidence on record. The lower court while passing the order acted illegally in examining the evidence and passed the illegal and perverse judgment. The sentence awarded to the revisionist is too severe. The prosecution has not been able to prove the case. The witnesses were the pocket witnesses. No independent witnesses were examined and the judgment and order is not sustainable in the eyes of law. Hence, the revision be allowed and the impugned judgment and order passed by both the courts below be set aside."

5. Heard and perused the record.

6. In brief, facts of the case are that on 10.08.1986 when after dinner Kunwar Sen father of the informant was going in front of the house of Mishri Lal where Mishri Lal and his sons Ram Charan and Bhagirath had put cot on the way and Sohan Pal was sitting there, Kunwar Sen asked the accused persons to vacate the way and for keeping the cot somewhere else. Being aggrieved they started abusing Kunwar Sen and returned to home, thereafter Mishri Lal, Ram Charan, Bhagirath and Sohan Pal entered in his house with sticks and started beating his father Kunwar Sen. Wife and mother of the informant started commotion, Tota Ram and Mohar Singh of the vicinity reached there and saved his father. Accused escaped from the spot at about 8.00 p.m. On hearing the incident he reached at the spot and in the evening at 4.30 he lodged the F.I.R. On the written complaint of the informant a case under sections 323, 325, 452, 504 and 506 IPC was lodged and charges were also framed in the aforesaid sections. Accused persons denied the charges and sought trial.

7. Following witnesses were examined from the side of prosecution:-

(i). PW-1 Om Prakash.

(ii). PW-2 Kunwar Sen.

(iii). PW-3 Gayatri Devi.

(iv). PW-4 Dr. N.C. Chaurasia.

(v). PW-5 Sub Inspector Mishri Lal.

(vi). PW-6 Constable Dharam Pal Singh.

8. During the trial accused persons Sohan Pal and Bhagirath died, hence the case was abated against them. Accused persons were examined under Section 313 Cr.P.C. who denied the allegation, charges levelled against them and in addition to that they stated that due to village partybandi and enmity they were falsely implicated. Neither documentary nor oral evidences were produced in defence version by the accused persons.

9. Learned Magistrate relied on the oral testimony of the witnesses, the documents produced by the prosecution was proved beyond reasonable doubt by the formal witnesses. Since there was no delay in lodging the F.I.R., there was injury and there were eye witness, hence, learned Magistrate came to the conclusion that the case has been proved beyond reasonable doubt and convicted as stated above.

10. In the appeal, learned Sessions Judge, Budaun concurred the findings of the trial court and simply reduced the sentence under section 323/34 IPC for one year rigorous imprisonment to six months rigorous imprisonment and one year rigorous imprisonment in place of two years rigorous imprisonment in respect of section 452 IPC.

11. Thus, from the above discussion, it is very much clear that both the lower courts have given concurrent finding about the fact and the law against the accused persons. During the pendency of this revision and other revisionist Mishri Lal has also died and only accused Ram Charan is surviving revisionist.

12. Learned counsel for the revisionist argued that he does not want to press the revision, so far as the conviction is concerned but he argued about the sentences awarded by both the trial courts. Learned counsel for the revisionist further argued that the matter relates to the year 1986 and 37 years have been elapsed. The sole surviving revisionist Ram Charan has become old. There is no pre or post criminal history of the accused-revisionist, hence, considering the long pendency of the case and that there is no pre or post criminal history of the accused-revisionist, the revisionist may be released on probation instead of sending the sole surviving accused-revisionist to jail for serving the sentence.

13. He further argued that at present no lis remains between the parties and both the parties are living peacefully. They are the neighbour and no untoward happening ever occurred after the aforesaid incident.

14. In this regard perused Sections 3 and 4 of the U.P. Probation of Offenders Act and this Court is of the view that the convicted accused Ram Charan is liable to be released on probation for good conduct.

15. In State of Karnataka Vs. Muddappa, (1999) 5 SCC 732 it has been held as follows:-

"2. The learned Counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 I.P.C., but he vehemently contends that the Court did benot bear in mind germane considerations for releasing the accused on probation after convicting him under Section 304 Part II I.P.C. Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation.

3. We, accordingly, dismiss this appeal. Bail bonds of the respondent stand discharged."

16. In the case of Mohd. Monir Alam Vs. State of Bihar, (2010) 12 SCC 26 it was held as under:-

"8. We have considered Mr. Suri's submissions very carefully. We see from the documents that the appellant Md.Monir Alam has secured a Doctorate and is presently employed as a Senior Assistant Professor in the Department of Strategic and Regional Studies, University of Jammu and that he had secured this appointment in the year 1997. His professional attainments have also been provided to us which shows his expertise in his specialty and also portrays his association with prestigious organizations worldwide in the field of strategic studies. We are, therefore, of the opinion that his conduct and attainments after his involvement in this matter justifies his release on probation. We, accordingly, dismiss the appeal but direct that he shall be released on probation under Section 4 of the Probation of Offenders Act, 1958 on terms to be settled by the trial court."

17. And also in Krishna Deo and Others Vs. State, Criminal Appeal No. 735 of 1982 it has been observed as under:-

"23. We are also not interfering with the conviction of appellants- Smt. Jalkall and Smt. Bhagwandel under Section 147 & 323/149 of the IPC. As discussed above, considering the facts and circumstances of the case, instead of sentencing the appellant no. 1 for the offence under Section 304 Part-Il r/w Section 34, 147. 323/149 of the IPC., we think it proper in the interest of justice to release the appellant- Krishnadeo, after giving him the benefit of Section 4 of the Probation of Offenders Act. We are not inclined to interfere with the sentence passed against the appellant- Smt Jaikali. Smt. Bhagwander, who were only directed to pay fine. Appellant-Krishna Deo is directed to surrender in the court below. The learned court below is directed to release him as per the provisions of Section 4 of the Probation of Offenders Act. The learned court below shall take all coercive steps for realizing the fine from appellants-Jaikali and Bhagwandel, if the same has not been deposited by them."

18. A copy of this order be sent to the District Probation Officer, Budaun and Additional Chief Judicial Magistrate-IV Budaun for compliance. Revisionist no. 1 shall execute two sureties of 30,000/- and one personal bond of the like amount and also an undertaking before the District Probation Officer, Budaun within 30 days from today, if he does not execute the bail bond and personal bond in compliance of the order of this Court, he shall undergo for incarceration as directed by the learned appellate court.

19. A copy of this order to be sent to the lower court alongwith the lower court record for consignment.

Order Date :- 31.7.2023

Vikram