Ram Bilas And 3 Ors. vs State Of U.P.
2023 Latest Caselaw 7595 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL APPEAL No. - 1566 of 2002
 

 
Appellant :- Ram Bilas And 3 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anil Srivastava,Nisha Srivastava,Surendra Kumar
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

In pursuance of earlier order of this Court a report has been submitted by the Chief Judicial Magistrate, Barabanki of date 16.8.2022 informing thereby that while the other appellants of this appeal are alive appellant Ram Bilas son of Gur Bachan has died. Along with death certificate of appellant no.1- Ram Bilas the Chief Judicial Magistrate, Barabanki has enclosed report of Police Station Badosarai, District Barabanki, a copy of the death certificate of appellant no.1- Ram Bilas, the statement of Sub Inspector of Police, Sarfraz Ahmad of Police Station Badosarai, the copy of the statement of witness Kuldeep and Subham who are the sons of the deceased appellant - Ram Bilas and all these witnesses have testified that the appellant Ram Bilas had died on 21.2.2020 as he was suffering from illness.

Thus having regard to the report of Chief Judicial Magistrate, Barabanki dated 16.8.2022 and the evidence enclosed there with it is evident that the appellant no.1- Ram Bilas has died and thus proceedings of this appeal are abetted against him.

Heard Ms. Nisha Srivastava, learned counsel for appellants as well as learned AGA for the State and perused the record.

The instant appeal has been preferred by the appellants against the judgment and order dated 25.10.2002 passed by the Additional Sessions Judge, Court No.30, Barabanki in Session Trial No. 606 of 1998, State of U.P. Vs. Ram Bilas and others, arising out of Case Crime No. 1999 of 1997, under Sections 323/34, 504, 506 and 308/34 IPC, 325, 307, 34 IPC, Police Station Badosarai, District Barabanki, whereby the appellants have been convicted for committing the offence under Sections 323/34 and 308/34 IPC sentencing them for 6 months R.I with regard to Section 323/34 IPC and 3 years R.I. for Section 308/34 IPC, respectively.

Learned counsel for the appellants submits that she is having instructions not to press this appeal so far as conviction of the appellants is concerned under Sections 323/34, 308/34 I.P.C. and the judgment and order of the trial court may be affirmed pertaining tot eh conviction of appellants. However, the trial court has committed manifest illegality in not considering the release of the appellants on probation at the time of sentencing which is mandatory in view of Section 360 and 361 of Cr.P.C. and Sections 4 and 5 of the Probation of Offenders Act, 1958.

While drawing the attention of this Court towards the sentence part of the impugned judgement and order, it is vehemently submitted that the trial court has not given any opportunity to the appellants to lead any evidence in support of their claim to be released on probation. While it was manifestly evident before the trial court that the appellants were not previous convicts nor they were having any criminal antecedents and as the incident had occurred in a spur of moment, benefit of releasing them on probation of good conduct should have been accorded to the appellants, thus appellants be provided the benefit of Section 4 of Probation of Offenders Act, 1958 and they undertake that they will keep peace and tranquility and would abide by any condition which may be imposed by this Court and would not indulge themselves in any criminal activity during the course of probation period and they are also ready to compensate the victim of crime as provided under Section 5 of the Probation of Offenders Act, 1958.

Learned AGA on the other submits that in the incident one person Bal Chand has received 5 injuries and out of these 5 injuries two are found on the head and forehead of the injured person.

Having heard learned counsel for the parties and having perused the record, it is evident that First Information Report of the incident was lodged by the informant Ramesh Chand on 27.7.1997 at 12.30 P.M. at Police Station Badosarai, District Barabanki, alleging therein that pertaining to the collection of 'Tahbazari', the accused persons were assaulting an unknown person on 25.7.1997 at 5.00 P.M. and the brother of the informant had intervened in order to save that unknown person and it is on this enmity on 26.7.1997 at 6.30 P.M. when Balchand was returning to his home the appellants have assaulted him with 'lathi- danda' by which he had sustained grievous injuries. On an alarm raised by him, Salik Ram and Jagannath had arrived at the scene and the accused persons had fled away from the spot after intimidating the injured.

The injured Bal Chand was medically examined on 26.7.1997 at 8.40 P.M. one laceraded wound, bone deep was found on his head and another lacerated wound was found on the right side of his forehead, which was skull deep and three other minor injuries in the nature of contused swelling, contusion and lacerated wound were also found on his left hand, on scapula and on left foot 5 cm. below the knee.

The Investigating Officer has submitted the charge sheet against all the accused persons under Sections 323, 504, 506, 308 IPC.

The trial court has framed the charges against all the accused persons under Sections 323/34, 504, 506, 308 IPC to which accused persons denied and claimed trial.

The prosecution had produced P.W.1- Balchand, P.W.2- Rameshchand, P.W.3- Sandeep Kumar, P.W.4- Girish Chand, P.W.5- Professor Dr. Ramakant, P.W.6- S.I. Raj Bahadur Singh, P.W.7- Dr. Ramesh Saxena, P.W.8- 255 C.P. Brijesh Singh.

Apart from the above mentioned oral evidence the prosecution has also relied on documentary evidence. After conclusion of the evidence of the prosecution statement of the accused persons under Section 313 Cr.P.C. was recorded wherein they denied the evidence produced by prosecution.

The trial court after appreciating the evidence available on record convicted and sentenced the appellants in the manner shown in the second paragraph of this judgement.

Though learned counsel for the appellants has not pressed the appeal on merits so far as the conviction part of the judgement passed by the trial court is concerned but this Court in order to satisfy its judicial conscience to assess as to whether any irregularity in appreciation of evidence has been committed by the trial court, perused the judgement of the trial court in the back ground of the evidence adduced before it. Perusal of the judgment of the trial court would reveal that injured witnesses, namely, Balchand has been testified as P.W.1. Apart from the injured witness Balchand P.W.2- Rameshchand, P.W.3- Sandeep Kumar who are eye witnesses, have been testified.

The law with regard to the appreciation of evidence of an injured witness is now no more res integra and the same has been settled in catena of decisions of Hon'ble Supreme Court, that the evidence of an injured witness who has sustained injuries in the incident is to be placed at a higher pedestal than other prosecution witnesses. Thus having perused the evidence of P.W.1- Balchand and other eye witnesses which has been corroborated by medical evidence i.e. Dr. Rakesh Saxena who has been testified as P.W.7., in the considered opinion of this Court no illegality appears to have been committed by the trial court in convicting the appellants for committing offences under Sections 323/34 and 308/34 IPC. So far as the sentencing part of the impugned judgment and order is considered, it is evident that while sentencing the appellants the trial court has not at all considered the provisions as contained under Sections 361 and 361 Cr.P.C. nor of Section 4 and 5 of the Probation of Offenders Act.

No need to remind that these provisions are mandatory and the trial court should have dealt the possibility of releasing the appellants on probation having regard to the manner in which the offence is shown to have been committed. It appears to be an admitted case that no specific role of assault on the vital part of the injured has been assigned to any particular appellant and general role has been assigned to all the accused persons. It may be inferred from the evidence produced by the prosecution before the trial court that the incident had occurred in a spur of moment, though it is claimed by the informant in the First Information Report that the assault has been given in a planned manner. The alleged incident had occurred in the year 1997 and conviction of the appellants have been done by trial court on 25.10.2002 and in these 26 years, which have elapsed since the occurrence of the unfortunate incident, no untoward incident between the parties has been reported and thus it could be inferred that parties are living at peace since then. Nothing was placed before the trial court pertaining to any criminal history of the appellants and admittedly they are not previous convicts. One of the appellant namely Ram Bilas has also died during the pendency of instant appeal.

Thus, keeping in view the peculiar facts and circumstances of this case, in the considered opinion of this Court the benefit of Probation of Offenders Act as provided under Section 4 of the Probation of Offenders Act, 1958 may be extended to the appellants subject to the payment of compensation by the appellants as provided under Section 5 of Probation of Offenders Act, 1958.

Thus, the judgment and order of the trial court so far as the conviction part is concerned, is hereby affirmed. However, the judgement and order of the trial court is modified, so far as the sentencing part is concerned, resultantly, the appeal is partly allowed with following modification.

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 and are released on probation on the condition that they will keep peace and good conduct for two years from today and shall file two sureties each 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 and will not indulge into any criminal activity. In case of breach of any of the condition mentioned above, is proved, they will be subjected to undergo the whole sentence as directed by the trial court. The bonds aforesaid will be filed by the accused-appellants within two months from today, before the court below.

As provided under Section 5 of the Act, each of appellant nos. 2 to 4 shall deposit compensation of Rs. 12,000/- (Rupees Twelve Thousand only) each (Total Rs. 36,000/-) in the trial court within one month from today, which the trial court shall, on his due identification, shall pay to the victim namely Balchand, if he is alive or to his legal heirs as the case may be.

If the amount of Rs. 36,000/- (Rs. 12,000/- by each of the appellants) is not deposited by the appellants no. 2 to 4, the trial court shall treat the same as breach of condition of personal bond and shall issue coercive process against the defaulting appellants to serve out the punishment as imposed by the trial court.

Let the copy of this judgement as well as the lower court record, if received, be transmitted to the concerned trial court forthwith for necessary compliance.

Order Date :- 16.3.2023

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