Uma Kant And Another vs State Of U.P.
2023 Latest Caselaw 8474 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 13
 

 
Case :- CRIMINAL REVISION No. - 140 of 2014
 

 
Revisionist :- Uma Kant And Another
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Amit Srivastava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Ms. Sweta Singh, Advocate holding brief of Sri Amit Srivastava, learned counsel for revisionists is present.

2. Uma Kant and Vedan have preferred the present Criminal Revision against the judgement and order 4.4.2014 passed by the Additional Sessions Judge, Court No.4, Hardoi whereby the appellate court has dismissed the appeal preferred against the judgement and order dated 17.1.2012 passed by Additional Chief Judicial Magistrate, Ist, Hardoi in Case No. 3894/2009 whereby the learned Magistrate has convicted and sentenced the accused persons u/s 323 read with 34 IPC for a period of 6 months R.I. with fine of Rs. 500/-. There were also convicted and sentenced for 2 years R.I. with fine of Rs. 2,000/- u/s 506 (2) IPC. Both the sentences were directed to run concurrently. However, learned Magistrate acquitted the accused-revisionist u/s 504 IPC.

3. In short the prosecution case is that complainant of the case Ramroop had gone to Chausar to purchase medicine on 3.1.2000. Late in the evening when he reached at his house, his wife Munni Devi told him that at about 2.30 p.m. when Renu had gone to public tab for bringing water in order to wash her hair, Uma Kant and his brother-in-law Vedan were talking in absurd language when the daughter Renu objected, she was beaten by the accused persons. On hearing the hue and cry, the villagers, namely, Raj Kumar and Balle came there and pacified them. Both the daughter and the wife had suffered injuries on their bodies.

4. On the basis of the aforesaid information, a case on crime no. 1/2000 u/s 323, 504, 506 IPC was registered against the accused Uma Kant, Vedan, Parmanand and Kallu.

5. Investigating Officer after the investigation submitted chargesheet against the accused Uma Kant and Vedan only u/s 323, 504, 506 IPC.

6. Learned Magistrate framed the charges against the revisionist u/s 323/34, 504, 506 IPC.

7. The accused persons denied the charges leveled against them and claimed to be tried.

8. The prosecution in order to prove its case examined PW-1 Renu, PW-2 Munni Devi, PW-3 Dr. J.L. Gautam and PW-4 Brij Mohan.

9. The complainant of the case Ramroop died during the pendency of the trial and as such he was not examined. Apart from oral evidence, the documentary evidence like medial report of Munni Devi and Renu Ex-Ka-2 and Ex-Ka-3, site plan as Ex-Ka-5 and chargesheet as Ex-Ka-6 were also rely by prosecution.

10. After closing of the prosecution evidence, the statement of the accused u/s 313 CrPC was recorded wherein he denied the prosecution case and stated in his additional statement that there was a dispute of partition and as such they have been falsely implicated.

11. Learned Magistrate appreciating the evidence on record and documentary evidence came to the conclusion that the accused persons are guilty of the charges leveled against them and as such they were convicted and sentenced as indicated above.

12. Not being satisfied with the order of conviction dated 17.1.2012, the accused persons preferred the Criminal Appeal No. 17 of 2012 before the Additional District and Sessions Judge, Court No. 4, District Hardoi which was dismissed vide judgement and order dated 4.4.2014. The Appellate court while upholding the conviction reduced the sentence u/s 323/34 IPC to the period of 2 months with fine of Rs. 200/-. In case of default the payment of fine, the accused persons were directed to undergo 15 days additional sentence. The sentence of the revisionists u/s 506 (2) IPC was also reduced to 6 months S.I. and fine of Rs. 500/-. It was also directed that in case of default, the accused persons have to undergo 30 days further imprisonment.

13. Being aggrieved by the aforesaid judgement, the accused persons have preferred the present revision challenging both the orders of the courts below. It has been directed by the learned counsel for revisionists that the findings of guilt recorded by the courts below are perverse and are not based on correct appreciation of evidence on record. Both the courts have also considered that fact that the accused persons have never been convicted or challenged in any criminal case and as such they were entitled to be released on probation but this aspect of the matter has not been considered by the trial courts as well as appellate court.

14. On the other hand, learned AGA appearing for the State has submitted that the findings recorded by both the courts are based on correct appreciation of evidence of record and cannot be said to be perverse or unreasonable. Moreover, learned counsel for revisionist has failed to show any illegality or irregularity in the impugned judgement.

15. In order to give benefit of the probation, it would be proper to examined and reproduced Section 360 CrPC.

16. It would be appropriate to quote 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.

17. It is rightly contended by the learned counsel for the appellant that the effect, relevance and applicability of Section 360 Cr.P.C. have not been considered by the trial court and appellants deserve probation under Section 323 and 506 IPC.

18. 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?

19. 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."

20. In the present revision fine of Rs. 2500/- each has been imposed by the trial court on the revisionists. 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 appellants as aforesaid, this Court is of the view that benefit of Section 4 of the Probation of Offenders Act, 1958 should be provided to the appellants.

21. Thus, the revision is partly allowed. The conviction as directed by trial court under Section 323/34 and 506 (2) IPC is confirmed and the revisionists are directed to be released on probation under Section 4 of the U.P. First Offenders' Probation Act with stipulated condition that they shall keep peace and good conduct for one year subject to furnishing personal bond and two sureties of like amount of Rs. 40,000/- each before the court concerned.

22. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C., I am of the view that compensation should be awarded to the victim's family.

23. Therefore, fine of Rs. 2500/- each is enhanced to Rs. 7500/-each, which shall be deposited by the revisionists before the trial court. Thus, out of Rs. 7500/- each Rs. 5000 shall be paid to the injured Munni Devi and Renu with equal share of Rs. 5000/- and remaining Rs. 2500/- shall be deposited in the State Exchequer. If the revisionists fail to deposit the aforesaid amount within 1 month, then they shall undergo imprisonment and sentence as directed by the trial court. One month's time is granted to revisionists to deposit the fine as mentioned by this Court from the date of production of a certified copy of this order. The revisionists are on bail. They need not surrender.

24. Thus, the revision is dismissed on the point of conviction and partly allowed on the point of sentence. Benefit of probation be given to the revisionists.

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

Order Date :-23.3.2023/Arpan