Uttarakhand High Court
6 May vs State Of Uttarakhand on 6 May, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
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HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No.291 of 2008
06 May, 2025
Nanoo and Others
--Appellants
Versus
State Of Uttarakhand
--Respondent
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Presence:-
Mr. Tapan Singh, learned counsel along with Mr. Mohd. Alauddin, learned
counsel (appeared through V.C.) for the appellants.
Mr. B.C. Joshi, learned AGA for the State.
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Hon'ble Pankaj Purohit, J.
Heard learned counsel for the parties.
2. 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 18.10.2008, passed by learned Additional Sessions
Judge, Roorkee in Sessions Trial No.355 of 2001, State
vs. Nanoo & others, whereby appellants have been
convicted and sentenced as under:-
S. Conviction Sentence Fine Sentence in-
lieu of default
No.
in payment of
fine
1. 148 IPC 01 year R.I. - -
2. 324 r/w 149 IPC 02 years' R.I. Rs.500/- 01 month
3. 325 r/w 149 IPC 03 years' R.I. Rs.1,000/- 01 month
4. 452 IPC 03 years' R.I. Rs.1,000/- 01 month
5. 504 IPC 06 months' R.I. - -
6. 506 IPC 06 months' R.I. - -
All the sentences were directed to run
concurrently.
3. The facts of the case are that complainant gave
a written complaint to the Police Station Laksar on
23.09.2000 with the allegations that on 21.09.2000 at 09
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o' clock in the morning Rashid Ahmed, Smt. Batul and
Ahsan Ali were sitting inside the house constructed in
their compound. The accused entered Rashid Ahmed's
house with sticks, drums and axes in their hands,
abusing and attacked Rashid, Batul and Ahsan Ali and
committed marpeet. In the fight, Rashid's head and hand
got broken and his wife's hand was also hit with an axe,
which broke her hand and she sustained injuries on her
body. Ahsan Ali was hit with an axe on his head, a stick
near his ear and he also sustained injuries. They used
sticks, drums and axe with the intention of killing all
three. Rashid Ahmed, Batul and Ahsan Ali shouted for
help. Hearing the noise Waheed, Ahsan, Liyaqat Ali,
Qurban and other people of the village came to the spot
and saved their lives. Thereafter, they were sent to the
Hospital.
4. 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 a map and on being satisfied, submitted a
charge-sheet against the accused persons under Sections
147, 148, 149, 323, 324, 325, 307/149, 452, 504 & 506
IPC in the court. Thereafter, charge was framed against
the accused persons against which, the accused persons
denied and claimed trial.
5. As many as ten witnesses were produced by
the prosecution to prove its case against the appellants.
They are PW1-Rashid, PW2-Waheed Hasan, PW3-
Mustakim, PW4-Liyaqat, PW5-Ahsan, PW6-Batul, PW7-
Dr. O.P. Sharma, PW8-Dr. R.K. Pandey, PW9-SI Nanhe
Ram Sagar and PW10-S.I. Rajesh Kumar.
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6. After prosecution evidence, the statements of
accused-appellants were recorded under Section 313
Cr.P.C. in which they stated that due to some enmity, a
false case was filed against them.
7. On completion of trial, the trial court convicted
and sentenced the accused persons as mentioned in
paragraph 2 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 on behalf of the appellants
that it was their first and only offence; none of the
appellants has any criminal antecedent; they belong to
the poor strata of society and also have liability. It is also
submitted that alleged incident was not a premeditated
one.
12. Learned State Counsel also stated before this
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Court that he has not received any report regarding any
other criminal antecedents of the appellants except this
case.
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 both the appellants with cogent and
unshaky evidence. Thus, no interference is warranted.
14. Now, this Court would 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 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 concerned Probationary
Officer 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:
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"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 AGA 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
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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
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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 the
only offence which has so far been registered against
them.
22. In this view of the fact, this Court is of the
opinion that no useful purpose would serve by
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
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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/Court 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.)
06.05.2025
AK
