Rajasthan High Court - Jodhpur

Vijaindan vs State on 13 May, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 715/2000

Vijaindan

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Suresh Kumbhat Mr. Sheetal Kumbhat For Respondent(s) : Mr. M.S.Bhati, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

13/05/2022

1. The present criminal appeal has been preferred by the

appellant claiming the following reliefs:-

"It is, therefore, most humbly and respectfully prayed that the appeal of the appellant may kindly be allowed and he be acquitted."

2. The matter pertains to an incident that occurred in the year

1996 and the present appeal has been pending since 2000.

3. Vide impugned judgment dated 15.11.2000 the learned

Additional Sessions Judge, Barmer in Sessions Case No.16/97

convicted the appellant for the offence under Section 307 & 452 of

IPC and sentenced him to undergo 3 years R.I. along with a fine of

Rs.5000/- default in payment of which he was to further undergo

6 month R.I. and sentenced him to undergo 6 months R.I. along

with a fine of Rs.1000/- default in payment of which he was to

further undergo 1 month R.I. respectively.

4. Learned counsel for the accused-appellant(s) submits that

the accused-appellant(s) do not have any criminal antecedents to

his discredit.

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5. Learned counsel for the petitioner submits that the incident

is alleged to have been happened on 09.12.1996 at about 11:00

PM when it was reported that the complainant along with a large

number of persons caused the injuries, which resulted into the

present dispute and thereafter the investigation started and

challan has been filed under Sections 147, 148, 323, 325, 307 &

458 of IPC. Learned counsel further submits that there were five

accused, namely, Kailash Dan, Murardan, Ratan Dan, Uttam Dan,

and Hetudan against whom investigating authority did not file

challan.

6. Learned counsel for the petitioner further submits that

challan was filed against the nine persons, out of them, two

persons Dhan Singh and Kumerdan were discharged at that stage

itself. Learned counsel also submits that thereafter out of the

seven remaining accused Jeevan Dan, Durgadan, Chanan Dan,

Narayan Dan, Durjan Singh, Dana Singh were acquitted and only

the present petitioner Vijaidan has been convicted.

7. Learned counsel for the petitioner has drawn attention of this

Court to the observation by the learned trial court that the over-

implication in the matter has caused serious doubts in the

prosecution story, as the same is neither supported by the medical

injuries nor supported by the evidence in question. The blunt side

axe having been used by the present appellant to cause the injury

has been found to be proved. Learned counsel further submits

that the learned trial court has intentionally deliberated into the

fact and arrived at a conclusion that the large part of the

allegations are false and only a small part is truth, but at the same

time, learned trial court has observed that if truth and false is

mixed then it is a duty of the learned trial court to segregate the

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same and come to the truth amongst the false and arrived at a

conclusion in the such matters.

8. Learned counsel for the petitioner has shown to this Court

that there is inconsistency amongst the prosecution witnesses and

also delay in taking the deposition by the Investigating Officer of

the eye-witnesses. Learned counsel also submits that there is no

recovery which has been made. Learned counsel also drawn

attention of this Court to the statements of PW-1 to PW-7 who

have broadly supported the story of the prosecution. Learned

counsel has also taken this Court to the evidence of PW-12

Derawar Singh, PW-16-Nakhat Singh, PW-17-Samela Ram & PW-

18 Govind Dan, who were turned hostile and did not support the

prosecution story.

9. Learned counsel for the petitioner also submits that the

learned trial court had arrived at a conclusion that the matter is

overblown version because even the medical report did not

contain the injuries which could have been caused by so many

persons, as alleged, though there were grievous injuries which are

supported by the medical evidence. Learned counsel further

submits that the number of injuries as well as the blunt nature of

injuries are, even if proved, sufficient to indicate that the case

would not travel to Section 307 of the IPC.

10. Learned counsel for the accused-appellant further submits

that the sentence awarded to the accused-appellant was

suspended by this Hon'ble Court vide the order dated 07.12.2000,

passed in S.B. Criminal Misc. Petition No. 486/2000 and thus, he

is on bail.

11. Learned counsel for the accused-appellant(s) however,

makes a limited prayer that the accused-appellant(s) may be

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granted benefit under Section 4 of the Probation of Offenders Act,

1958 (hereinafter referred to as 'the Act').

"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)...

(4)...

(5)... "

12. On the other hand, learned Public Prosecutor opposes the

appeal and submits that looking to the overall facts and

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circumstances of the case and the well reasoned speaking order

passed by the learned court below, the accused-appellant is not

entitled for any indulgence by this Court. He further submits that

the incident has been found to be truthful and the injuries are also

supported by the medical evidence.

13. This Court, after hearing learned counsel for the parties and

perusing the record of the case, finds that the learned trial court's

judgment is struggling to balance the equities between the

falsehood mixed with the truth and thus, the overblown incident

has been dealt with in a manner whereby some of the witnesses

have been believed whereas others have been disbelieved. The

attribution has been denied on the same set of evidence at some

stage and has been accepted at same place. This Court also finds

that the same set of evidence for acquitting the other accused has

been used whereas for Vijaidan, it has been caused of conviction.

14. This Court also observes that at the same time when the

learned trial court is continuously doubting the prosecution story

having been blown out of proportion at the same time is bent

upon giving some kind of conviction to sustain the allegations.

This Court is particularly concerned about the truthful of the

allegation looking into the fact that out of 14 charged persons, 13

persons have not been convicted. The grave shadow is casts upon

the facts of the case. This Court, in the aforesaid circumstances, is

inclined to grant the benefit of probation to the present petitioner.

15. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas

(1974) 4 SCC, the Hon'ble Apex Court observed as under:-

"The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders

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who, if spared the indignity of incarceration, can be usefully rehabilitated in society.

In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society."

15.1 In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945, a

Coordinate Bench of this Court observed as under:-

"Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... "

15.2 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC

198, while reiterating the ratio decidendi laid down in Dalbir

Singh Vs. State of Haryana, (2000) 5 SCC 82, the Hon'ble

Apex Court observed as under:

"... The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient..."

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15.3 In Lakhvir Singh and Ors. Vs. The State of Punjab and Ors.

(2021) 2 SCC 763 wherein the Hon'ble Apex Court of India, with

regard to the application of the Probation of Offenders Act, 1958

vis-a-vis those Acts wherein a minimum sentence of imprisonment

has been prescribed by the legislature, observed as under:-

"Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context."

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16. This Court observes that there is no material on record that

the accused-appellant(s) has/have any criminal antecedents.

Thus, the accused-appellant(s) are entitled to the benefit under

the Probation of Offenders Act, 1958.

16.1 Thus, this Court, after taking into due consideration the

legislative intent of the Act and the decisions rendered by the

Hon'ble Apex Court in Arvind Mohan (supra), Mohd. Hashim

(supra) and in Lakhvir Singh, and by this Hon'ble Court in Brij Lal

(supra), deems it appropriate to extend the benefit of the Act to

the accused-appellant(s).

17. Resultantly, the present appeal is partly allowed. While

maintaining the conviction of the present accused-appellant for

the offence(s) under Sections 307 & 452 of IPC, as recorded by

the learned Court below in the impugned judgment, this Court

interferes only with the sentence part of the said judgment, and

directs that the appellant shall be released on probation, under

Section 4 of the Act, upon his furnishing a personal bond in the

sum of Rs.50,000/- and two sureties in the sum of Rs.25,000/-

each to the satisfaction of the learned trial court with a further

undertaking that he shall maintain peace and good behaviour for a

period of two years and shall not repeat the offence. The

appellant is on bail. He need not surrender. His bail bonds stand

discharged accordingly. All pending applications stand disposed of.