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2006 DIGILAW 116 (UTT)

Jai Prakash v. State of Uttaranchal

2006-03-27

J.C.S.RAWAT

body2006
JUDGMENT Hon'ble J.C.S. Rawat, J.- This is the revision petition against the judgment and order dated 26.08.1987 delivered by Sri AL. Verma, the then VIIth Addl. Sessions Judge, Saharanpur in Criminal Appeal No. 335 of 1984 confirming the sentenced passed by the learned Judicial Magistrate, Roorkee u/s 452 and 323 I.P.C. The learned Sessions Judge convicted and sentenced them to undergo 1 year and 6 months rigorous imprisonment respectively. 2. Feeling aggrieved by said judgment and orders, the present revision has been preferred. 3. Brief facts for the disposal of this revision are that Shri Shyam Lal lodge F.I.R. against the accused alleging therein that the revisionists had committed theft from his house and the said theft property was recovered from the possession of the revisionists Jai Pakash (deceased) and the said prosecution was terminated in terms of the compromise, Thereafter, there was enmity in between the parties. Pursuant this on 19.03.1983 at about 3:30 p.m. the revisionists entered into the house of the complainant, Shyam Lal and they hurled abuses upon the brother and nephew of the complainant. When they protested, the revisionists entered into the house and started beating them by lathies and fists. Manfool and Satya Pal sustained the injuries in the said incident. The complainant lodged the report on the date of the incident and the police did not take any action in spite of lodging the report. Thereafter, complaint was filed before the Magistrate and the Magistrate took the cognizance and summoned the accused/revisionists. 4. The accused/revisionists were charged u/s 452, 323, 504 and 506 I.P.C. The accused/revisionists denied the allegations and they have stated that they have been falsely implicated in this case. 5. The prosecution in support of his case adduced the evidence of the complainant, Shyam Lal-PW2. He has lodged the report and he was not present at the time of the incident. Manfool Singh-PW2 and Sat pal Singh PW4 are the injured witnesses of the incident and they have narrated the entire incident as indicated in para 3 of my judgment. Kadam Singh-PW4 is said to be the independent witness. Balesh Kumar, Head Constable-PW5 is the formal witness who has proved the F.I.R. and other relevant papers. Dr.S.C. Singal-PW6 conducted the medical examination of the injured and he, submitted the medical report and proved the injuries on the person of the injured. 6. Kadam Singh-PW4 is said to be the independent witness. Balesh Kumar, Head Constable-PW5 is the formal witness who has proved the F.I.R. and other relevant papers. Dr.S.C. Singal-PW6 conducted the medical examination of the injured and he, submitted the medical report and proved the injuries on the person of the injured. 6. The accused-revisionists were examined u/s 313 Cr.P.C. and they denied the averment made in the evidence of the prosecution and they stated that the prosecution witnesses had falsely implicated them in this case. No defence evidence was addured before the court below. 7. After appraisal of the evidence, the learned trial court convicted the accused u/s 452, 321, 504 and 506 I.P.C. as indicated above. 8. Feeling aggrieved by the conviction and sentence as state above, the appeal was preferred before the learned Sessions Judge which was transferred to the Addl. Sessions Judge who has held that the case u/s 504 and 506 is not made out against the accused-revisionists and they were acquitted on the basis of the charges. The accused-revisionists were convicted u/s 452 and 323 I.P.C. as indicated above. 9. I have gone through the entire judgment and I do not find any perversity in the appreciation of the evidence and both the courts below have given concurrent findings that the revisionists had entered into the house of the complainant and they had caused the injuries on the persons of Manfool and Satpal and thereby they had been rightly convicted u/s 452. and 323 I.P.C. I am completely in agreement with the findings recorded by the court below. The learned counsel for the revisionists did not challenge the propriety of the conviction. The learned counsel further contended that looking to the circumstances of the case, the sentence awarded by the court below is excessive and contended that that a lenient view may be taken in the matter. It was contended on behalf of the revisionist that the revisionists are old and infirm person. It was contended that the revisionist-Jagdish is a laborer and other two revisionists-Ishaq Lal and Om Prakash are working on the daily basis in the Municipal Board. It was further contended that they are old and their age is above 60 years. Learned counsel for the revisionists has given affidavit to that effect also. It is also stated that there is no other case pending against the accused-revisionists. It was further contended that they are old and their age is above 60 years. Learned counsel for the revisionists has given affidavit to that effect also. It is also stated that there is no other case pending against the accused-revisionists. The revisionist-Jai Prakash has already died against whom a case was pending u/s 379 I.P.C. which was terminated into acquittal in terms of the compromise. The learned A.G.A could not show me anything from the record that there was any other conviction passed by any of the courts against the revisionists. It is not the case of the prosecution before the trial court as well as before the Appellate Court that they were the previous convicts. The learned counsel for the revisionists further pointed out that benefit of Section 4 of the First Offenders Act may be given to the revisionists. The learned counsel for the revisionists further pointed out that the incident took place in the year 1983 and it would be very unfair or it would be very incumbersome to the revisionists to undergo to serve the sentence. It was further contended that the Hon'ble Supreme Court in Chandreshwar Sharma Vs. State of Bihar, 2000 (40) page 644 has awarded the benefit of Section 360 Cr.P.C This provision has been suspended in application in U.P. as well as in the State of Uttaranchal. Section 4 of the First Offenders Act is applicable in the State. It is provided under the First Offenders Act if the offence is not punishable with death or imprisonment for life, the benefit of safety may be extended to the accused. It is to be taken into account while giving this benefit to the accused-revisionists. Looking to the facts and circumstances, nature of the offence, and the age of the revisionists of the present case, see no reason not to apply the provision of Section 4 of the First Offenders Act in this case. I accordingly, maintain the conviction of the revisionists and direct that they will be dealt with u/s 4 of the First Offenders Act and as such, I direct that the revisionists be released on probation of good conduct instead of sentencing them and they should enter into the bonds with two sureties to appear and receive the sentence when called upon during the period of one year for the pm cases in question. The bond of one year shall be executed before the Judicial Magistrate, Roorkee within two weeks from the date of receipt of copy of the judgment. The revisionists shall also be under the supervision of the Probation Officer posted at Haridwar. They will also report him and they will execute bond before him within a period of two weeks from the date of receipt of copy of the judgment. The Probation Officer shall also submit his report to the Judicial Magistrate with regard to their conduct. 10. In view of the foregoing discussion, the revision petition is disposed of accordingly.