Jokhoo And 2 Ors. vs State Of U.P.
2023 Latest Caselaw 14146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 20.04.2023
 
Delivered on 05.05.2023
 

 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 618 of 2002
 
Appellant :- Jokhoo And 2 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dr.G.P.Tripathi,Kripa Shankar Yadav,Rakesh Kumar Modanwal
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Kripa Shankar Yadav, learned counsel for the appellants and Sri Nirmal Kumar Pandey, learned AGA for the State and perused the record.

2. The appellant no.1 Jokhoo died on 10.9.2019, hence, the appeal stood abated on his behalf on 27.3.2023.

3. By means of the instant appeal, Judgement and order dated 30.4.2002 passed by Additional Sessions Judge, Pratapgarh in Sessions Trial Nos.181 of 1993 arising out of Case Crime No.191 of 1990 under Section 307/34 I.P.C. P.S. Ranigan, District Pratapgarh has been assailed whereby the appellants have been convicted under Section 307 read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months.

4. As per prosecution version, when on 8.7.1990 at about 5.00 p.m. accused persons were constructing door towards land of informant, the informant restrained them not to do so upon which the appellant no.1 Jokhoo (now deceased) and appellant no.3 Kishore exhorted to kill him. On this, appellant no.2 Lahuri took out country made pistol and seeing the same, the informant rushed towards his house and while he was entering into the house, appellant no.2 opened fire with an intent to kill him which hit on back side of his head and back. The incident is said to have been witnessed by Mahesh, Munnu, mother of Ram Jiyawan and many others.

5. It is alleged on the direction of Superintendent of Police, the case was registered on 16.7.1990 at about 5.15 pm as Case Crime No. 191 of 1990 under Section 307 I.P.C. against the appellants. After investigation, the charge sheet was submitted under the section. Taking cognizance, the Chief Judicial Magistrate committed the case to the sessions court.

6. The Additional Sessions Court framed charge under Section 307 read with Section 34 I.P.C. against the appellants. The appellants denied from the charge and claimed trial.

7. The prosecution examined as many as five witnesses, i.e., P.W.1 informant Ram Jiyawan, P.W.2 Mahesh, P.W.3 Dr. R.K. Mishra, P.W.4 Investigating Officer Abdul Rajjak and P.W. 5 Dr. A.K. Nigam, Radiologist.

8. The injury sustained by the injured Ram Jiyawan are as under:-

"1- Hkqdk gqvk ?kko ftldk fdukjk [kqjnqjk Fkk vkSj xksykbZ ds vkdkj esa FkkA 0-3 lseh- O;kl Fkk vkSj ck;sa dku ls 1-5 lseh- ihNs rFkk eslVk;M izklsl ds fdukjs ls 1-5 lseh mij eslVk;M ,fj;k esa pksV yxh Fkh] rktk [kwu cg jgk Fkk] xgjk;h peM+s rd FkhA

2- Hkqdk gqvk ?kko mlh uki dk ck;sa i[kksjs ds Likbu ij vkSj ck;sa da/ks ds mijh fgLls ls 6 lseh- ihNs o mij dh vksj FkkA xgjk;h peM+s rd FkhA rktk [kwu cg jgk Fkk] pksV ds fdukjs ij >qylu ekStwn FkhA

3- Hkqdk gqvk ?kko ftldk fdukjk [kqjnjk Fkk] vkdkj xksy Fkk O;kl 0-3lseh ck;s ihB ij] dkW[k ds fiNys eksM+ ij 1-5 lseh- uhps Fkk] rktk [kwu cg jgk Fkk] pksV ds fdukjs >qylu ekStwn FkhA

MkDVj vkj ds feJk ds vuqlkj et:c jke ft;kou dh pksVsa vXus;kL= ls igqpk;h x;h Fkh vkSj ijh{k.k ds le; rktk Fkh rFkk fnukad 8-7-90 dh 5-00 cts 'kke dh gks ldrh Fkh rFkk ;g Hkh crk;k gS fd pksVsa 5&10 fQV dh nwjh ls igqpk;h x;h gks ldrh gSa vkSj lHkh pksVs ,d Qk;j ls Hkh vkuk lEHko gSA "

9. The appellants, in their statements under Section 313 Cr.P.C. denied the story of the prosecution and submitted that they have falsely been implicated as the informant intended to grab their property and, thus, there was enmity in between the parties. However, in support of their statements, they did not produce any documentary evidence.

10. Learned counsel for the appellants submits that the matter pertains to the year 1990 and about 33 years have been passed. He added that there is only one gun shot fire and that too is on the back side of the injured, thus, this could not be ascertained as to who has opened fire. The trial court, while appreciating evidence, has also not considered this fact and has taken the aforesaid statement as true. He next added that injuries are said to be on the fatal part, i.e, backside of the head and also on the back of the injured and those injuries are muscle deep. However, the injured himself is stated to have gone to the hospital, as such, he was conscious and he did not receive fatal injuries. He also added that there is no independent eye witness of the incident and the story has been concocted by the prosecution. Everything is based on mere assertion in the F.I.R. Further the Investigating Officer has also not recovered any country made pistol or firearm including the cartridges from the possession of the appellants. Further the trial court has also not considered the fact that the injuries do not disclose the intention of the accused persons to kill the injured and this finding has not been recorded sufficiently. So far as the common intention of all the accused persons are concerned that too has not been considered and substantiated by the prosecution and only country made pistol has been shown in the hands of the appellant no.2 Lahuri though there is no independent eye witness and the injuries are on the back side of the injured and, thus, this could not be said that the injured himself has seen as to who had opened the fire.

11. Learned counsel for the appellants further submitted that age of the appellant no.2 is about 64 years and appellant no.3 is 60 years of age and after passing of 33 years, they have settled themselves ion the society and must have living decent life and, therefore, putting the appellants behind the bars at this stage would not serve any purpose. He further submitted that appellant no.2 was detailed for six months in jail and appellant no.3 was detailed for three months in jail.

12. After the aforesaid arugments, he submits that the appellants are not pressing the appeal on merits and added that the appellants may be given the benefit of the Section 4 of the Probation of Offenders Act,1958 to meet the ends of interest of justice.

13. On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that there are serious allegations against the appellants and the Investigating Officer, after thoroughly investigating the matter, has filed the Chargesheet against the appellants and the trial court appreciating the evidences of the prosecution witnesses including the other material facts, has rightly passed the Judgment and order and has punished the appellants with senven years of imprisonment and fine and thus, the appellants are not entitled for any relief whatsoever, as has been prayed by the learned counsel for the appellants.

14. Considering the submissions of learned counsel for the parties and after perusal of Judgment and order including the lower court record, it transpires that when on 8.7.1990 at about 5.00 p.m. accused persons were constructing door towards land of informant, the informant restrained them not to do so upon which the appellant no.1 Jokhoo (now deceased) and appellant no.3 Kishore exhorted to kill him. On this, appellant no.2 Lahuri took out country made pistol and seeing the same, the informant rushed towards his house and while he was entering into the house, appellant no.2 opened fire with an intent to kill him which hit on back side of his head and back. Thereafter, thorough investigation, the Chargesheet was filed and the trial court after hearing the submissions of the parties and after appreciating the material placed on record, has passed the Judgment and order and thus, no interference is warranted whereof.

15. So far as the fact that the incident is said to have taken place in the year 1990 and about 33 years have passed and certainly, the appellants would have settled their life in the society and therefore, unsettling the life by sending them to jail again, would not serve any fruitful purpose.

16. Except apart the merit of the case, so far as the prayer of learned counsel for the appellants for according benefit of Section 4 of the Probation of Offenders Act is concerned, it is essential to discuss the legal position and the law propounded by the Apex Court.

17. In the context above, Sections 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of probation to first offenders. Both these sections are reproduced as under:-

"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 sub-section 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 recognizance, 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 the 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 such 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 1958), or 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.

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, 135 but has not done so, it shall record in its judgment the special reasons for not having done so."

18. There is one central Legislation on the subject in the name of ''Probation of Offenders Act Act 1958', relevant Section 3 and 4 of are extracted hereunder:-

"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.

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."

19. There is one more legislation on the subject namely ''Uttar Pradesh First Offenders' Probation Act, 1938'. Section 3 and 4 of this Act are reproduced herein below:-

"3. Power of court to release certain offenders after admonition. - In any case in which a person is found guilty of the offences of theft, dishonesty, misappropriation or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two years imprisonment and no previous conviction is proved against him, the court by which he is found guilty 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.

Power of court to release certain offenders on probation of good conduct. - (1) When any person is convicted of an offence not punishable with death or transportation 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, antecedents or physical or mental condition 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 the court shall not direct the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and 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 :

Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the [State Government], which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so.

(2) Where the offender ordered to be released under sub-section (1) is under twenty-four years of age, the court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order :

Provided that the period so specified shall not extend beyond the date on which, in the opinion of the court, the offender will attain the age of twenty-five years.

(3) A court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the condition with respect to residence, abstention from intoxicants and any other matters as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(4) A court making an order under sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.

20. A Division Bench of the Allahabad High Court in State of Uttar Pradesh v. Misri Lal and others reported in 1982 CRI. L. J. 1420 held as under :-

"26- ...................The application of Section 360 in Utter Pradesh was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the Utter Pradesh Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 of the Amending Act No. 16 of 1976 amended S.484 of the Code and inserted the following clause (e) after clause (d) :-

"(e) .... the United Provinces First Offenders' Probation Act 1938......shall continue in force in the State of Uttar Pradesh .... and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State".

21. It follows from this provision read with clause (e) of S.484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the Utter Pradesh First Offenders' Probation Act, 1938."

22. Thus, provisions of U. P. Probation Of First Offenders' Act shall be followed, in the geographical area where that has been made applicable and not Section 360 of the Cr.P.C. In this way enforcement of Probation Act in some particular area, thus excludes the applicability of the provisions of Section 360 of the Code in that particular area,however it will be the bounden duty of the Court to consider as to why not to proceed to grant the benefit of Probation of Offenders Act, as provided under Section 361 of the Cr.P.C.

23. Coming to the point of desirability of extending the benefit of Probation Act to the Accused/Revisionist in Sitaram Paswan and Anr v. State of Bihar, reported in AIR 2005 SC 3534 Supreme Court held as under:-

"For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."

24. In AIR 2017 SC page 660, Mohd. Hashim v. State of U.P and Ors. the Supreme Court opined as under:-

"20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:-

"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

25. In view of the aforesaid legal provisions and the plea raised by the learned counsel for the appellants, it is apparent that the incident which had taken place, is of prior to 33 years. Further, the appellants accused are leading a respectful and decent life in the society and they have settled themselves.

26. This court has also considered that pre or post trial except, apart from the present case, there is no other criminal antecedent of the appellants and therefore, this court is of the considered opinion that the benefit of the Section 4 of the Probation of Offenders Act can be given to the appellants.

27. Consequently, so for as the conviction part is concerned, this Court does not find any illegality, perversity or irregularity in the Judgment and order dated 30.4.2022 passed by the trial Court, but, keeping in view the submissions and discussions made hereinabove, the sentence inflicted on the appellants-accused requires modification.

28. Thus, the appeal is hereby partly allowed with the following modifications:-

29. The conviction of the accused-appellants by the trial Court is up-held. The sentence of the appellants accused is modified to the tune that they are provided the benefit of U.P. Probation of Offenders Act and they are released on probation on the condition that they will maintain peace and good conduct for further two years from today and they shall file two sureties each to the tune of Rs.30,000/- along with their personal bonds before the trial court and also an undertaking to the effect that they shall maintain peace and good behavior. Further the appellants will also deposit Rs. 20,000/-before the Court below within two months which shall be released in favour of the victims/injured persons or their legal heirs. In case of breach of any of the conditions mentioned above, the appellants will be subjected to undergo the sentence as directed by the trial Court. The bonds aforesaid will be filed by the accused-appellants within two months from today before the trial Court.

30. The office is directed to send certified copy of this order to the trial Court concerned for necessary compliance.

31. Let the trial Court record be returned back to the trial Court.

Order Date :- 05.05.2023

Ram Murti