Dwarika And Ors.2 vs State Of U.P.
2023 Latest Caselaw 7157 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 737 of 2002
 

 
Appellant :- Dwarika And Ors.2
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Diwakar Singh,Maheep Kumar Singh
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Maheep Kumar Singh, learned counsel for appellants, learned A.G.A. for State and perused the record.

The instant appeal has been preferred by the appellant nos. 1, 2 and 3, Dwarika, Vikram and Ketaki, respectively against the Judgment and Order dated 30.05.2002 passed by Additional Sessions Judge/ Fast Track Court, Barabanki in Sessions Trial No.707 of 1997 (State of U.P. vs. Dwarika and Others) arising out of Case Crime No.231 of 1993 under Sections 436/323/325 I.P.C. Police Station-Kothi, District-Barabanki, whereby the appellants were convicted for the offence under Sections323/34, 325/34, 436 I.P.C. and were sentenced to under go 6 months rigorous imprisonment and 325/34 I.P.C. 2 years rigorous imprisonment and to pay fine of Rs. 500/- each in default of payment of fine 1 month rigorous imprisonment and for 436 I.P.C. 5 years imprisonment and to pay fine of Rs. 2000/- in default of payment of fine 3 months(each) rigorous imprisonment.

Learned counsel for the appellant vehemently submits that he is having instructions not to press the instant appeal on merits, so far as, the conviction of the appellants under Section 323, 325, 436 I.P.C. is concerned and he does not have any objection if the Judgment and Order dated 30.05.2002 of the Trial Court pertaining to conviction of the appellants for committing the offences under Section 323, 325, and 436 I.P.C. is affirmed, however, the trial court has committed manifest illegality in not considering the release of the appellants on probation which is a mandatory provision in view of Section 360 and 361 of Cr.P.C. and Section 4 and 5 of the Probation of First Offenders Act, 1958.

It is further submitted that the admitted facts of the prosecution story was to the tune that the incident had occurred in a spur of moment without their being any premeditation and apart from one injured, namely-Jitna, other two injured persons had sustained minor/simple injuries and admittedly the appellants were not having any criminal antecedent and thus, it was mandatory for the trial court to have considered the release of the appellants on probation for keeping peace and tranquility for a specified period of time. It is also submitted that the incident had occurred in the year 1993 and the appellants were convicted in the year 2002 and since the happening of the unfortunate incident the parties are living at peace as no untoward incident has been reported and appellants undertake that they shall keep peace and tranquility in the area and would refrain themselves from indulging in any criminal activity and they are also ready to compensate the victim as provided under Section 5 of the Probation of First Offenders Act, 1958.

Learned A.G.A. on the other hand submits that it is a case where three persons have sustained injuries and the 'chhapar' of the informant has also been put on fire.

Having regard to the submissions made by learned counsel for the parties and perusing the record, the prosecution story as is evident from the record is to the tune that the First Information Report appears to have been lodged by the informant, namely-Jitna on 10.11.1993 at Police Station-Kothi District-Barabanki alleging therein that on relevant date and time on the basis of enmity pertaining to two bighas of land the accused persons/appellants started assaulting the informant and her sisters and they were rescued by the villagers and in the meantime accused, namely-Vikram had put their 'chhapar' on fire whereby the harvested crop which was stored beneath the 'chhapar' was burnt.

The informant as well as her two sisters namely-Sarjudie and Maika @ Maina were medically examined. Informant, namely-Jitna had sustained five injuries of the nature of contusions and in supplementary report humerus bone of the informant was also found fractured and three injuries were of the nature of lacerated wounds and contusions were found on the person of the other injured persons, namely-Sarjudie and Maika @ Maina.

After conclusion of the investigation, the charge-sheet was filed against the named accused persons/appellants and the charges against the appellants were also framed under Section 325/34, 323/34 and 436 I.P.C. to which they denied and claimed trial.

The prosecution in order to prove its case presented P.W.1-Sarjudie, P.W.2-Jitna, [email protected] Maina, P.W.4-Dr. P.C. Shukla, P.W.5-Head Constable Ram Krishan Diwakar, P.W.6-Dukhi Ram, P.W.7-Dr. V.K. Bhatia, P.W.8-SI K.P. Singh and P.W.9-Sub Inspector Jagat Pal Singh. Apart from the above oral evidence the prosecution also relied on the documentary evidence.

After completion of the evidence of the prosecution the statement of the accused persons/appellants were recorded under Section 313 of Cr.P.C. wherein they denied the evidence of the prosecution and presented some documentary evidence in their defence.

The trial court after appreciating the evidence on record available on record came to the conclusion that that prosecution has succeeded in proving its case beyond reasonable and convicted the accused persons/appellants for committing offence under Section 323/34, 325/34 and 436 I.P.C. and sentenced the accused persons/appellants in the manner shown in first paragraph of the instant judgment and order and aggrieved by the same the instant appeal has been preferred by the accused persons/appellants.

Though, the learned counsel for the appellants has specifically submitted that he is not challenging the judgment and order of the trial court so far as the convicting part of the same is concerned but this Court for the purpose of satisfying its judicial conscience, in order to asses as to whether any illegality has been committed by the trial court in appreciating evidence available on record, has perused the evidence tendered by the prosecution before the trial court and found that three injured persons have been testified before the trial court as P.W.1-Sarjudie, P.W.2-Jitna and P.W.3-Maika @ Maina. The injuries sustained by them could not be termed as self inflicted as one of the injured has sustained fracture of humerus bone. The law with regard to the appreciation of evidence of injured witnesses is now no more res-integra and it is settled that the evidence of a person who has sustained injuries in the incident is to be kept at a higher pedestal than other witnesses, if it is proved he/she had sustained injuries in the same incident.

Having carefully perused the evidence of the three injured persons, apart from some minor contradictions, which are not affecting the core of the prosecution case, I do not find any contradiction in the testimony of these witnesses which may be termed as major and therefore, the core of the prosecution case is intact even after lengthy cross-examination. The ocular testimony of these three injured prosecution witnesses has been supported by the medical evidence and thus, in the considered opinion of this Court, no illegality or to say any irregularity has been committed by the trial court in convicting the accused persons/appellants for committing offences under Section 323/34, 325/34 and 436 I.P.C. Thus, the impugned judgment/order of the trial court, to the extent of conviction of the accused persons/appellants for committing offences under Section 323/34, 325/34 and 436 I.P.C. is hereby affirmed.

Coming to the sentencing part of the judgment and order of the trial court which has been assailed by the learned counsel for the appellants by raising various submissions, it is evident that the trial court admittedly has not considered the mandatory requirement of considering the release of the convicted accused persons/appellants on probation as is warranted under Section 360 and 361 Cr.P.C. and Sections 4 and 5 of the Probation of First Offenders Act, 1958. Admittedly, the parties were inimical from before the incident on the basis of dispute pertaining to some immovable property. In the F.I.R. it has been stated that informant was residing somewhere else and she had arrived on the day of the incident in order to harvest the crop pertaining to which the dispute was existing between the parties. In the F.I.R., which in the considered opinion of this Court has been lodged with promptness, the allegation of destruction of some crop which was stored under the 'chhapar' has been stated. The incident, having regard to the evidence placed on record before the trial court, appears to have generated/occurred in the spur of moment, without their being premeditation and apart from the informant, namely-Jitna, the other two injured persons have sustained minor/simple injuries. The incident is of the year 1993 and the accused persons/appellants were convicted in the year 2002 and even after thirty years of the occurrence of the unfortunate incident no untoward incident has been reported between the parties, which canvasses that parties are presently living at peace. Admittedly, at the cost of repetition it is emphasized that accused persons/appellants were not having any criminal antecedents.

Thus, in the considered opinion of this Court, having regard to the peculiar facts and circumstances of the case including the one that in the F.I.R. only the crop which was placed under the ' chhapar' is shown to have been burnt, the benefit of Probation of First Offenders Act, 1958 may be granted to the instant appellants.

Resultantly, the appeal is partly allowed with following modifications:

The conviction of the appellants by the court below is upheld. The sentencing of the appellants-accused is modified to the tune that they are provided benefit of Section 4 of Probation of First Offenders Act, 1958 and are released on probation on the condition that they will keep peace and good conduct for two years from today and shall file within 45 days from today, two sureties to the tune of Rs.50,000/- along with their personal bond before the court below and also an undertaking to the effect that they shall maintain peace and good behaviour during the period of two years from today. In case any breach of any of the condition mentioned above, is proved, they will be subjected to undergo the sentence as directed by the trial court.

As provided under Section 5 of the Probation of First Offenders Act, 1958 appellants nos.1, 2 and 3 shall deposit compensation of Rs.20,000/-(Rupees Twenty Thousand only) to the informant namely-Jitna, Rs. 10,000/- to Sarjudie and Maika @ Maina each in the trial court within 45 days from today, which the trial court shall, on their due identification, shall pay to the victims, if they are alive or to their legal heirs as the case may be. Each of the appellant shall deposit Rs.13,334/-.

If the amount of Rs.13,334/- is not deposited by any appellant within 45 days from today, the trial court shall treat the same as breach of condition of his personal bond and shall issue coercive process against the defaulting appellant(s) to serve out the punishment as imposed by the trial court.

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 :- 13.3.2023

Piyush/-