Rajasthan High Court
Sri Kishan vs State (2023:Rj-Jp:20893) on 4 September, 2023
Bench: Mahendar Kumar Goyal
[2023:RJ-JP:20893]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No. 1/1989
1. Nanag Ram son of Shri Mam Raj, aged 81 years,
2. Mahavir son of Nanag Ram,
Both residents of Shahjahanpur, Police Station Shahjahanpur,
District Alwar.
----Accused-Appellants
Versus
The State of Rajasthan
----Respondent
Connected With
S.B. Criminal Appeal No. 468/1988
1. Shri Krishan @ Ram Kishan S/o Prabhatilal Saini,
2. Shri Kanti son of Shri Phool Chand swamy,
Both residents of Shahjahanpur, District Alwar
----Accused-Appellants
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Ms. Gayatri Rathore, Sr. Adv. with
Mr. Ran Singh
Mr. Mohit Balwada with
Ms. Bhavana Choudhary
Mr. Sunil Shekhawat
Ms. Anjum Parveen Salawat
For Respondent(s) : Mr. Imran Khan, P.P.
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Judgment / Order
04/09/2023
These criminal appeals have been preferred by the four
accused-appellants namely Nanag Ram, Mahavir, Shri Krishan @
Ram Kishan & Shri Kanti.
[2023:RJ-JP:20893] (2 of 6) [CRLA-1/1989]
As per the report dated 16.08.2023 furnished by the Station
House Officer, Police Station Shahjahanpur, District Bhiwadi,
Rajasthan, Nanag Ram & Shri Kanti have expired. The report is
accompanied with a certificate dated 16.08.2023 furnished by the
Sarpanch, Gram Panchayat Shahjahanpur and death certificate
dated 27.04.2022 of Kanti.
In view thereof, these appeals stand abated qua Nanag Ram
& Shri Kanti and are, now, confined to the accused-appellants-
Mahavir & Shri Krishan @ Ram Kishan (for brevity "the
appellants").
These criminal appeals have been preferred against the
judgment dated 30.11.1988 passed by the learned Additional
Sessions Judge No.2, Alwar (hereinafter referred to as "the
learned trial Court") in Sessions Case No.39/83 (28/82) whereby,
while convicting the appellants, they have been sentenced as
under:-
(i). Under Section 148 IPC:- 1 year's rigorous
imprisonment with fine of ₹100/-; in default thereof, one month's
rigorous imprisonment.
(ii). Under Sections 326 & 326/149 IPC:- 3 years'
rigorous imprisonment with fine of ₹200/-; in default thereof, two
months' rigorous imprisonment.
(iiI). Under Sections 324 & 324/149 IPC:- 1 year's
rigorous imprisonment with fine of ₹100/-; in default thereof, one
month's rigorous imprisonment.
All the sentences to run concurrently.
[2023:RJ-JP:20893] (3 of 6) [CRLA-1/1989]
The relevant facts in brief are that a written report (Exhibit-
P-1) dated 15.04.1982 was lodged by Shri Rajendra Singh (PW-2)
with the Police Station Shahjahanpur, Alwar stating therein that on
that very day, at about 4:00 PM, when he was sitting in his
residential house alongwith his father-Heeralal, mother & sister,
the appellants alongwith co-accused persons armed with deadly
weapons entered the house and inflicted grievous as also simple
injuries on their person. Thereupon, an FIR No.22/82 (Exhibit-P-2)
came to be lodged under Sections 147, 148, 149, 307, 457 & 34
IPC. The police after investigation filed charge-sheet against the
appellants and co-accused persons. Vide order dated 19.07.1982,
the learned trial Court framed charges against the appellants
under Section 148, 307, 307/149, 326, 326/149, 324, 324/149,
323, 323/149, 452 & 452/149 IPC. The appellants pleaded not
guilty and demanded trial. After conducting trial, the appellants
have been convicted and sentenced by the learned trial Court vide
its judgment dated 30.11.1988 as stated hereinabove.
Eschewing merits of the case, learned Senior Counsel for the
appellant-Mahavir and learned counsel for the appellant-Shri
Krishan @ Ram Kishan, would submit that they, who are aged 70
years and 65 years respectively with no previous conviction, are
facing trauma of this criminal case for last about 41 years and
would feel contended if they are extended benefit of probation.
They submit that in view of nature of grievous injuries received by
injured-S/Shri Heeralal & Rajendra Singh on non-vital part of their
body, i.e., right wrist and left wrist respectively, they may be
extended benefit of probation. They, in support of their
submissions, relied upon following judgments:-
[2023:RJ-JP:20893] (4 of 6) [CRLA-1/1989]
1. Fulchand Gope & Anr. versus State of Jharkhand: (2011)
12 Supreme Court Cases 514,
2. Bhupendra Singh & Anr. versus State of Rajasthan: 2008
(2) Cr.L.R. (Raj.) 1219.
Per contra, learned Public Prosecutor opposed the prayer.
Heard. Considered.
In the incident more than 41 years old, the injured-S/Shri
Heeralal & Rajendra Singh have received grievous injuries on their
wrist, i.e., non-vital part of the body. The appellants are aged
about 70 years & 65 years respectively as on date with no
previous conviction.
Their Lordships have held, in case of Fulchand Gope & Anr.
(supra), as under:-
"4. The factual scenario, as noted above,
goes to show that the occurrence took place
over a sudden quarrel and the accused
persons acted in the course of that quarrel
and did not take any undue advantage. That
brings the case under Section 304 IPC, so far
as accused Gauri Gope is concerned. But so
far as others are concerned, it is to be noted
that they had not assaulted either the
deceased or the informant. But their presence
was there and to a certain extent, their
indirect participation by asking Gauri Gope to
teach the deceased a lesson, and also of
pelting stones. That being so, in peculiar
circumstances of the case, the conviction of
Gauri Gope would be appropriately under
Section 304 Part II IPC. So far as others are
concerned, it would be under Section 326
read with Section 34 IPC.
[2023:RJ-JP:20893] (5 of 6) [CRLA-1/1989]
6. Custodial sentence of eight years' rigorous
imprisonment, so far as Gauri Gope is
concerned, would suffice, while in the case of
the other accused persons, it will be three
years' rigorous imprisonment. Since the
custodial sentence is for three years, we
extent the benefits under the Probation of
Offenders Act so far as they are concerned.
The necessary terms shall be fixed by the trial
court before whom the accused persons
concerned shall appear without further notice
on 20-1-2004 to receive orders."
Thus, in the aforesaid case, in view of sentence of three
years' rigorous imprisonment awarded to the accused-appellants
under Section 326 read with Section 34 IPC, they were extended
benefit of probation.
In a case of conviction under Section 326 IPC, in view of the
injured having sustained only one grievous injury on the shoulder
by a sharp edged weapon, i.e., not on vital part of the body and
after considering a number of precedential law rendered by the
Hon'ble Supreme Court of India, a co-ordinate Bench of this Court
has, in case of Bhupendra Singh & Anr. (supra), extended the
accused-appellant benefit of Section 4 of the Probation of
Offenders Act, 1958 (for brevity "the Act of 1958"),.
As also observed, in the present case, there is only one
grievous injury suffered by each of the two persons on their non-
vital party of the body, the appellants have been facing the trauma
of this criminal case for last about 41 and a half years with no
previous conviction, this Court deems it just and proper to extend
[2023:RJ-JP:20893] (6 of 6) [CRLA-1/1989]
them benefit of Section 4 of the Act of 1958 in the backdrop of
aforesaid precedential law.
Resultantly, while maintaining the conviction of the
appellants, they are released on probation under Section 4 of the
Act of 1958. The appellants shall file personal bonds in the sum of
₹50,000/- together with two sureties each of ₹25,000/- for a
period of two years to the satisfaction to the learned Additional
Sessions Judge No.2, Alwar with a further stipulation that they
shall appear and receive sentence when called upon during the
probation period and in the meantime, to keep peace and be of
good behaviour.
The appeals are disposed of in the aforesaid terms.
(MAHENDAR KUMAR GOYAL),J
Manish/278-279
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