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Uttarakhand High Court · body

2006 DIGILAW 182 (UTT)

Kanta Prasad v. State of U. P.

2006-04-17

C.PANT

body2006
JUDGMENT Hon'ble Prafulla C. Pant, J.- This revision, preferred under Section 397 of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 03.03.1987, passed in Criminal Appeal No. 09 of 1985, by learned Sessions Judge, Dehradu!1, whereby judgment and order dated 11.02.1985 passed by Chief Judicial Magistrate in Criminal Case No. 1992 of 1982 has been upheld and conviction under Section 323 and 452 of Indian Penal Code. 1860, has been maintained. Learned Sessions Judge. had, confirmed the sentence passed against Sundari Devi and Jagdish but as against Kanta Prasad, it has been modified and reduced to the period of jail already undergone and fine of Rs. 500/- under Section 452 and Rs. 300/- under Section 323 of the Indian Penal Code. 2. Prosecution story in brief is that on 10.09.1982, at about 4:00 P.M., the revisionists (accused) entered into the house of Mehar Chandra and assaulted Smt. Kanti Devi (W/o Mehar Chandra), Km. Babita (D/o Mehar Chandra) and Rajendra (S/o Mehar Chandra). The said accused (revisionists) entered into the house of Kanti Devi, armed with dandaas and hockey. Kania Prasad was said to have armed with hockey while other two were armed with dandaas. On hearing the cries of the injured, P.W 4 (Dhoom Singh) and P.W 5 (Megh Pal), rushed to the scene of occurrence and saved them. Rajendra gave information of the incident to his father Mehar Chandra (P.W 1), who got the F.I.R. lodged with the Police Station at about 4:30 P.M. on the same day. P.W. 6, Dr. P.K. Gupta, examined the injured and following injuries were found by him: Injuries found on the person of Km. Babita (P.W.3) : 1. Contusion red in colour 6cm X3.5cm, with traumatic swelling on left side face just below left lower eyelid. 2. Traumatic swelling cum contusion 3 cm X 2 cm on the right half of nose on the face bleeding from right nostril Complain of pain on left side of chest and left firm. Injury No. was reported to be simple while No.2 was kept under observation. Injuries found on the person of Smt. Kanti Devi (P.W.2) : 1. Lacerated wound 0.5 Cm X 0.2 cm on the socket of upper left lateral incisor. Fresh blood from socket. Tooth loose in socket. 2. Contusion size 11 Cm X 6 Cm with traumatic swelling around right upper arm lower One third. Injuries found on the person of Smt. Kanti Devi (P.W.2) : 1. Lacerated wound 0.5 Cm X 0.2 cm on the socket of upper left lateral incisor. Fresh blood from socket. Tooth loose in socket. 2. Contusion size 11 Cm X 6 Cm with traumatic swelling around right upper arm lower One third. Complain of pain on the back. Injury No. 1 and 2 were kept under observation. 3. The Investigating Officer, Shri S.C. Sharma (P.W.7), after investigation submitted charge sheet against all the three accused namely, Kanta Prasad, Smt. Sundari Devi and Jagdish alias Budhu. After giving necessary copies and hearing the parties on charge, the Magistrate framed charge under Section 452 and 323 of Indian Penal Code against all the three accused, who denied the charge and claimed to be tried. Learned Magistrate, after recording the evidence of prosecution as well as that of the defence in which D.W. 1 P.D. Kestwal and D.W. 2 H.C. Surendra Mohan were examined,' found all the three accused guilty of offence punishable under Section 452 and 323 of the Indian Penal Code, 1860. After hearing on sentence, the learned Magistrate sentenced each of the accused to one year rigorous imprisonment under Section 452 and three months rigorous imprisonment under Section 323 of the Indian Penal Code. However, the Magistrate gave the convict Jagdish Prasad and Sundari Devi benefit of provision under Section 4 of Probation of offenders Act, 1958, on the condition that they would file personal bond of Rs. 2,000/- and furnish two sureties each of the like amount for keeping good conduct for one year. 4. All the three convicts (revisionists), filed an appeal under Section 374 of the Code of Criminal Procedure. 1973, before the Sessions Judge, challenging the judgment and order passed by the Magistrate. The said appeal was registered as Criminal Appeal No. 09 of 1985. Learned Sessions Judge, Dehradun, after hearing the parties dismissed the appeal and confirmed the conviction as against all the three accused. However, on the point of sentence, while the sentences passed against Jagdish Prasad and Smt. Sundari Devi were upheld, the sentence passed against Kanta Prasad was reduced to the period already undergone and to fine of Rs. 500/- under Section 452 and Rs. 300/- under Section 323 of the Indian Penal Code. However, on the point of sentence, while the sentences passed against Jagdish Prasad and Smt. Sundari Devi were upheld, the sentence passed against Kanta Prasad was reduced to the period already undergone and to fine of Rs. 500/- under Section 452 and Rs. 300/- under Section 323 of the Indian Penal Code. Aggrieved by said judgment and order dated 03.03.1987, this revision was filed before the Allahabad High Court by the convicts, which is received by this Court by transfer under Section 35 of V.P. Re-organisation Act, 2000. 5. I heard learned counsel for the' revisionist and learned Assistant Government Advocate and perused the record. 6. I do not find any illegality in the impugned order passed by the learned Sessions Judge affirming the order of the learned Magistrate. There is ample oral and documentary evidence adduced on behalf of the prosecution whereby the charge of offence punishable under Section 152 and 323 of the Indian Penal Code, 1860, were found proved by the courts below. FIR (Exh. 1) read with its check report (Exh. A-6) and Medical Injury reports (Exh. 3, A-4 and A-5), corroborate the statement of the injured eye-witnesses examined by the trial court. Copy of the General Diary Report (Exh. A-7) and Site Plan (Exh. A-8) further corroborate the prosecution story. It is pertinent to mention here that this Court is not an appellate court but it is exercising the revisional jurisdiction. As such, there is no need to further re-appreciate the evidence at this stage. 7. Learned counsel for the revisionist argued that the benefit of Probation of Offenders Act, 1958, should have been given to the revisionist Kanta Prasad also. In this connection, my attention was drawn to the principle of law laid down in Mani Singh Vs. State of Bihar 2001 (43) Allahabad Criminal Cases Pg. 246 in which the Apex Court in a case of conviction under Section 379 of Indian Penal Code and under Section 27 of the Arms Act, passed against a Government servant, found it just and proper to grant him benefit of Probation of Offenders Act to save the appellant (accused in said case) from the dismissal from the government service. Similar view has been expressed by the. Supreme Court in State of Maharashtra Vs. Jagmohan Singh 2004 S.C.C. (Criminal) Pg. 2003. In said case, the conviction was under Section 452 and 324 of the Indian Penal Code. Similar view has been expressed by the. Supreme Court in State of Maharashtra Vs. Jagmohan Singh 2004 S.C.C. (Criminal) Pg. 2003. In said case, the conviction was under Section 452 and 324 of the Indian Penal Code. Considering the above two case laws, this Court would have accepted the contention of the learned counsel for the revisionist but the impugned order passed by the learned Sessions Judge itself shows that before said court no such request was made on behalf of accused-Kanta Prasad. The appellate court has observed in its judgment as under: "The appellant's counsel argued before me that there could not have been any distinction between the roles assigned to Jagdish Prasad and Smt. Sundari Devi and the appellant. He urged that a lenient view be taken and the appellant need not be sent to jail after a lapse of about five years. It has been prayed that the sentence of imprisonments be set aside and instead the appellant he made to pay a nominal fine. It has been admitted by the learned counsel far the appellant that if the appellant is sentenced to' pay a fine he shall not treat the same to' be an enhancement of sentence." In these circumstances, the lower appellate court has modified and reduced the sentence. Therefore, this Court does not find any illegality in the sentence passed by the lower appellate court. Since the accused (revisionist) Kanta Prasad was armed with hockey, which could have caused the graver injuries, the courts below have found his case different from the other two. 8. However, it is pertinent to' mention here that conviction under every section of the Indian Penal Code cannot be said to' be conviction of an offence involving moral turpitude, affecting the government service of the convict. Supreme Court in Pawan Kumar Vs. State of Haryana (1996) 4 S.C.C. Pg. 17, has made it clear that 'moral turpitude' is an expression which is used in legal as also societal parlance to' describe conduct which is inherently based vile, depraved or having any connection showing depravity. (Depravity refers to' immoral and sinful act). In said case, the Apex Court has observed that there is need to' make a provision that if a person convicted and fined only, it should not affect the entry of such person or his retention in the government service. 9. (Depravity refers to' immoral and sinful act). In said case, the Apex Court has observed that there is need to' make a provision that if a person convicted and fined only, it should not affect the entry of such person or his retention in the government service. 9. With the above observations, this Court feels that the revision is liable to' be dismissed. Accordingly the same is dismissed. No order as to' costs.