Allahabad High Court
Kashav Ram And Another. vs The State Of U.P. on 13 March, 2023
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL APPEAL No. - 533 of 2002
Appellant :- Kashav Ram And Another.
Respondent :- The State Of U.P.
Counsel for Appellant :- Virendra Mohan,S.Malik-E-Ashtar Rizvi,Subhash Srivastava
Counsel for Respondent :- Govt.Advocate
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri S. Malik-E-Ashtar Rizvi, learned counsel for the appellant nos.1 and 2 as well as learned Additional Government Advocate for the State and perused the record.
The instant appeal has been filed by the appellant nos.1 and 2, Kashav Ram and Barsati Lal, respectively against the judgment and order dated 18.04.2002 passed by the Additional Sessions Judge/F.T.C.-28, Barabanki in Sessions Trial No.671 of 1997 (State vs. Keshavram and others) arising out of Case Crime No.226 of 1997, under Sections 308/34, 323/34, 325/34, 504, 506 I.P.C., Police Station Kothi, District Barabanki, whereby the appellants were convicted for the offence under Sections 308/34, 325/34, 323/34, 504, 506 I.P.C. and were sentenced with 4 years rigorous imprisonment for committing offence under Section 308/34 I.P.C., three years for committing offence under Section 325/34 I.P.C. along with fine of Rs.500/- with default clause, 6 months rigorous imprisonment for committing offence under Section 323/34 I.P.C., 6 months rigorous imprisonment for committing offence under Section 504 I.P.C. and 2 years rigorous imprisonment for offence under Section 506 I.P.C. All the sentence were directed to run concurrently.
Learned counsel for the appellants submits that so far as the merits of the judgment with regard to the conviction of the appellants, in the relevant penal sections, is concerned, he is not having any grievance pertaining to the same. However, he is aggrieved by the fact that while sentencing the appellants for committing the offences under Sections 308/34, 323/34, 325/34, 504, 506 I.P.C., the trial court has not considered the mandatory provisions of Sections 360 and 361 of the Cr.P.C. as well as Sections 3, 4 and 5 of the Probation of Offenders Act, 1958 and, therefore, a serious illegality has been committed by the trial court while it was the duty of the trial court to have considered the case of the appellants for extending the benefit of Probation of First Offenders Act and as the appellants are not having any previous criminal history, benefit of Probation of First Offenders Act may be extended to the instant appellants.
It is vehemently submitted that nothing was brought before the trial court pertaining to the criminal antecedents of the appellants and it was evident that the appellants are not having any criminal history and the incident appears to have happened in a spur of moment without there being any premeditation and apart from two injured namely Smt. Sursata and Surendra Chandra, other two injured persons have sustained simple injuries.
It is also submitted that since happening of the unfortunate incident, the parties are living at peace and no further incident in the year 1997 had occurred between them and the pendency of the instant appeal may only bring bad blood again between the parties. It is further submitted that since release of the appellants in the instant case, they have not misused the provision of bail and contesting the appeal bonafidely, thus the benefit of provision of Probation of First Offenders Act be granted to them and the appellants are ready to pay a reasonable compensation to the injured persons and also undertakes that they will live in peace and would also maintain peace and tranquility in the area and would refrain themselves from indulging in any criminal activity.
Learned A.G.A. on the other hand opposes the submissions made by learned counsel for the appellants on the ground that four persons have sustained injuries in the incident.
Having heard learned counsel for the parties and having perused the record, though, learned counsel for the appellants has not challenged the judgment and order of the trial court, so far as the conviction part of the same is concerned, but in order to satisfy its judicial conscience, this Court has entered into the merits of the judgment of the trial court, with regard to the conviction also and having gone through the same, is of the considered view that the prosecution in all probability was able to prove its case before the trial court beyond any reasonable doubt and, therefore, no illegality appears to have been committed by the trial court in convicting the appellants for the offences under Sections 308/34, 323/34, 325/34, 504, 506 I.P.C. Thus, the judgment of the trial court, so far as the conviction of the appellants with regard to Sections 308/34, 323/34, 325/34, 504, 506 I.P.C. is concerned, is affirmed.
Coming to the submissions made by learned counsel for the appellants that the trial court have committed manifest illegality in not extending the benefit of the Probation of First Offenders Act, 1958 to appellants, moreso when it was evident on the record that the instant appellants are not previous convict, is concerned, perusal of the record would reveal that there is nothing in the judgment of the trial court which may reflect that the appellants are previous convict or having criminal history and the release of appellants on probation was not considered by trial court while sentencing the appellants. In the incident in question, four persons are stated to have sustained injuries. It is also evident that the incident in question is of 19.06.1997 and about 25 years have elapsed since then and there is no any other incident happened between the parties thereafter and in all probability the parties are living in peace. The pain and suffering of the injured to some extent may be compensated to some extent by providing compensation as provided under Section 5 of the Probation of Offenders Act.
Thus, keeping in view all the facts and circumstances of the case, I am of the considered opinion that the benefit of Probation of First Offenders Act, 1958 could be extended to the instant appellants- Kashav Ram and Barsati Lal.
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 the 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 behavior 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 Act, appellants nos.1 and 2 shall deposit compensation of Rs.20,000/- (Rupees Twenty Thousand only) each (Total Rs.40,000/-) in the trial court within 45 days from today, which the trial court shall, on their due identification, shall pay to the victims namely Smt. Sursati and Surendra Chandra, if they are alive or to their legal heirs as the case may be. The appellant nos.1 and 2 shall also deposit compensation of Rs.7,000/- (Rupees Seven Thousand only) each (Total Rs.14,000/-) within the same period, which the trial court shall, on their due identification, shall pay to the victims namely Mata Prasad and Kanhai Lal, if they are alive or to their legal heirs as the case may be.
If the amount of Rs.54,000/- (Rs.27,000/- by each of the appellants) is not deposited by the appellants within 45 days from today, the trial court shall treat the same as breach of condition of personal bond and shall issue coercive process against the defaulting appellant 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
Anupam S/-
