Kurban & Others .....Appellants vs State Of Uttarakhand
2024 Latest Caselaw 285 UK

Uttarakhand High Court

Kurban & Others .....Appellants vs State Of Uttarakhand on 11 March, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

     HIGH COURT OF UTTARAKHAND AT NAINITAL
                       Criminal Appeal No. 150 of 2009
Kurban & others                                                    .....Appellants
                                            Vs.
State of Uttarakhand                                               .....Respondent
Presence:
           Mr. Navneet Kaushik, learned counsel for the appellants.
           Mr. K.S. Bora, learned Deputy Advocate General with Mr. J.P.
           Kandpal, learned Brief Holder for the State.

Hon'ble Pankaj Purohit, J.

At the very outset, it needs to be mentioned that during the course of pendency of appeal, appellant no.4, namely, Gulshan passed away due to which the appeal stood abated against the said appellant vide order dated 18.09.2023 passed by this Court. Now, the appeal is heard and adjudicated qua remaining three appellants, namely, Kurban, Furkan and Gulfam.

2. Heard learned counsel for the parties.

3. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as "the Cr.P.C.") against the judgment and order dated 16/17.09.2009 passed by learned Additional Sessions Judge, Roorkee, Haridwar in Sessions Trial No.162 of 2007, whereby appellants have been convicted and sentenced as under:-

S. Conviction Sentence Fine Sentence in-lieu of fine

No.

1. 324/34 IPC 01 year R.I. - -

2. 452 IPC 02 years' R.I. Rs.1,000/- One month additional imprisonment

3. 308/34 IPC 04 years' R.I. Rs.2,000/- Two months' additional imprisonment

All the sentences were directed to run concurrently.

However, the accused appellants were acquitted for the offence under Section 323/34 and 506 IPC by the trial court.

4. The facts of the case are that the prosecution was set into motion on the report filed by Imtiyaz (PW1) given on 23.07.2005 at Police Station Baghwanpur to the effect that the incident is of 22.07.2005 at about 11:00 p.m. his brother Ikram (PW2) was sleeping in his house. At that time, the informant heard screams on which he went to the house of the brother and saw that the people of his village namely, Kurban, Furkan, Gulfam and Gulsan (appellants herein) armed with sticks, baton, Palkati (a sharp edged weapon), sword and iron rods were assailing his brother. There was a light of electric bulb in the house. Meanwhile, informant's brothers Zulfkar, Israr and sister-Zulfana also came on the spot for rescue when these people tried to rescue Ikram, all these four accused also attacked the informant party, due to which, they also sustained several injuries. On hearing alarm, several people from vicinity came on the spot and saved brother and sister of the informant. While fleeing away, accused persons also extended a threat to kill them in future.

5. On the basis of aforesaid report, the case was registered at the Police Station and the investigation of the case was started. The Investigating Officer during course of investigation recorded the statements of witnesses, inspected the place of occurrence and prepared the site plan and arrested the accused persons. On being satisfied, submitted a charge-sheet against the accused persons under Sections 323, 324, 452, 308 & 506 IPC in the court. Thereafter, charge was framed against the accused persons under Sections 323/34, 324/34, 308/34, 452 & 506 were framed against the accused, which the accused denied and claimed trial.

6. As many as twelve witnesses were produced by the prosecution to prove its case against the appellants. They are PW1- Imtiyaz (informant), PW2-Ikram, PW3- Israr, PW4-Zulfkar, PW5- Smt. Zulfana, PW6-Mustkim, PW7-Aalmgir, PW8-S.I. B.D. Uniyal, PW9-S.I. T.S. Rana, PW10-Constable Rakesh Singh, PW11-Dr. Ajay Kumar and PW12-Dr. Ajay Mohan.

7. After prosecution evidence, the statement of accused- appellants were recorded under Section 313 Cr.P.C. in which they stated that on 22/23.07.2005, Mumtaz, Israr, Imtiyaz, Ikram, Zulfkar had caused injuries to Kurban and Sabir, cross-case whereof is also going on and for this very reason, a false case has been registered against them. On completion of trial, the trial court convicted and sentenced the accused persons as mentioned in paragraph 3 of this judgment.

8. I have heard learned counsel for the parties at length and have carefully perused the entire documents available on record.

9. Learned counsel for the appellants having argued extensively finally submitted before this Court that the judgment and order passed by the trial court is based on the evidence which is not reliable due to several contradictions and developments during trial. He also argued and submitted alternately that if this Court is not convinced on the arguments advanced by him, the appellants may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter to be referred to as 'the Act of 1958').

10. To this submission learned State counsel has no serious objection and he also admitted that the appellants can be extended the benefit of first offenders act.

11. It was also argued that the appellants are now running in their forties; it was their first offence; none of the appellants has any criminal antecedent; they belong to the poor strata of society and also have liability of their children; and they are suffering from various ailments and also are neigbours.

12. Learned State Counsel also stated before this Court that he has not received any report regarding any other criminal antecedents of the appellants.

13. Having heard the learned counsel for the appellants on merits of the appeal, I do not find any reason to interfere in the well reasoned judgment and order passed by the learned trial court. The

prosecution succeeded in proving its case beyond all reasonable doubt against all the appellants with cogent and unshaky evidence. Thus, no interference is warranted.

14. Now, this Court embark upon to examine the next submission as to whether benefit of Probation of First Offenders Act, 1958 can be extended to the appellants.

15. It is strenuously submitted by the learned counsel for the appellants that the provisions of Section 4 of the Act of 1958 may be pressed into service and to postpone the sentence awarded by the Court below and to release the appellants on the bond of good- conduct to be executed by them before the District Probationary Officer, Haridwar or before learned trial court.

16. In order to buttress his argument, learned counsel for the appellants placed reliance on the judgment passed by a Coordinate Bench of this Court in Criminal Revision No.154 of 2012 Harendra Singh Vs. State of Uttarakhand dated 29.08.2020, wherein the Court has granted the benefit of the Act, 1958. Paras 9 and 14 of the aforesaid judgment, which contained Hon'ble Apex Court's judgments on the point are quoted below:-

"Para-9: In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

"7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."

Para-14: In this regard, the Hon'ble Apex Court in the case of "Paul George vs. State of NCT of Delhi" reported in 2008 SCC (Cri.) 2, 768, in paragraph no.12, has held as under:

12. This litigation has been going on for the last 20 years and has been fought tenaciously through various courts, we are also told that the appellant who has had a good career throughout but for this one aberration has since been

dismissed from service on account of his conviction. We, therefore, while dismissing the appeal, feel that the ends of justice would be met if we direct that the appellant be released on probation under Section 4 of the Probation of Offenders Act, 1958 on conditions to be imposed by the Trial Court. The appeal is disposed of in the above terms."

17. It is submitted by learned counsel for the appellants that the Coordinate Bench of this Court while extending the benefit of the aforesaid provisions of the Act, 1958 has placed reliance upon the judgment rendered by Hon'ble Apex Court, which has been quoted in Para 14 of the judgment of co-ordinate Bench of the Court.

18. Learned Deputy Advocate General does not dispute the application of the provisions of Section 4 of the Act, 1958, as in view of the provisions of the said Act, 1958, power can be exercised, while if a person is found guilty of committing an offence not punishable with death or imprisonment for life and with regard to the facts and circumstances of the case, like nature of the case and character of the offender, the appellants can be given benefit of the said provision.

19. In order to appreciate the argument advanced by the learned counsel for the appellants, the provisions of Section 4 of the Act of 1958, is required to be appreciated. The same is quoted hereinbelow:

"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."

20. From perusal of the aforesaid provisions, it is clear that the power vests with the Court to release a person on a bond of good conduct by extending the benefit of Section 4 of the Act 1958, if any person is found guilty of having committed an offence not punishable with death or imprisonment for life, but, at the same time, the Court will extend the benefit so provided under Section 4 of the Act of 1958 having due regard to the nature of the offence and the character of the offender.

21. From the perusal of the record, it is clear that the offences, for which the appellants were convicted, do not entail the punishment of death or imprisonment for life. So, the nature of the offences is such, where, this Court can give the benefit of the Act of 1958 to the appellants. The submission made by the learned counsel for the appellants regarding the fact that there is other circumstance which would warrant the application of Section 4 of the Probation of Offenders Act, 1958 to the facts of the case, and they have undergone the trauma of the criminal trial for the last so many years, coupled with the fact that the appellants have no criminal antecedents and even prior and after the aforesaid crime, this is an only offence which has so far been registered against them and they are the permanent residents of District Haridwar. They are neighbours and belong to the lower strata of the society.

22. In this view of the fact, this Court is of the opinion that there is no useful purpose for immediately sending the appellants to jail for serving the sentence awarded by the learned trial court.

23. In this view of the matter, the appeal is partly allowed. Judgment and order passed by learned trial court is hereby affirmed. The conviction as recorded by the learned trial court shall remain intact. However, so far as the sentence part is concerned, it is directed that the appellants shall be released on probation for a period of three years on furnishing a personal bond with two sureties each of like amount to the satisfaction of the concerned trial court. The fine imposed by the trial court shall be deposited by the appellants within a period of one month, if not already deposited, from the date of receipt of this order, with the Court concerned. The concerned Magistrate shall be at liberty to impose such condition(s) while executing the bond which he feels fit in accordance with the law. It goes without saying that if appellants fail to observe good conduct and behaviour during probation, or is found violating any condition imposed, the Court concerned shall be at liberty to cancel the bond of good conduct calling the appellants to serve out the sentence awarded by the Court below. The appellants are on bail. They need not to surrender provided they execute the bond of good conduct before the court concerned as directed above, within 15 days from the date of this judgment.

24. Let a copy of this judgment, along with the LCR, be sent forthwith to the learned trial court for information/compliance.

(Pankaj Purohit, J.) 11.03.2024 AK