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Allahabad High Court · body

2007 DIGILAW 1983 (ALL)

RAJVIR v. STATE OF UTTAR PRADESH

2007-07-27

G.P.SRIVASTAVA

body2007
JUDGMENT Hon’ble G.P. Srivastava, J.—This is an appeal against the judgement and sentence dated July 13,1982 passed by Special Sessions Judge, Mainpuri in Special Trial No. 47 of 1982 (State v. Rajvir and others) under Sections 457, 394, 397, I.P.C. whereby the learned Special Judge held the accused Rajvir, Santosh, Amar Singh and Ranvir Singh guilty for the offence under Sections 457, 394 read with Section 397 I.P.C. and sentenced them to undergo four years’ R.I. under Section 457, I.P.C. 7 years R.I. under Section 394, read with Section 397, I.P.C. Both the sentences were directed to run concurrently. 2. The prosecution in brief is that on 4.2.1982 at about 3.00 a.m. the accused persons looted utensils, garments and jewellery of the house of the sister-in-law of the first informant Smt. Sushila Devi when she was sleeping in her house alongwith her daughter Padma Devi, Brijesh Kumar Singh, brother-in-law and her son Kuldeep. The accused persons were armed with lathi danda, iron rods and country made pistol. They entered into the room. When Smt. Sushila Devi awakened she raised alarm but the accused persons caused injuries to Smt. Sushila Devi and her son Pushpendra Singh. The complainant and Madan Singh and others reached there. They saw the accused persons in the light of torch and electricity. The accused persons fled away alongwith the looted articles. The First Information Report was lodged on 4.2.1982 at about 8.15 a.m. The written report is Ext. Ka-1 and chick FIR is Ext. Ka.3. The investigating officer inspected the torch of the complainant and prepared its memo Ext. Ka.2. The injuries of Pushpendra and Sushila Devi were examined on 4.2.1982 at about 10 to 10.15 a.m. The injury reports are Ext. Ka.7 and Ka. 8. The investigating officer after usual investigation submitted charge-sheet against the accused persons. The accused persons were charged for the offence under Sections 457, 394 read with Section 397, I.P.C. They pleaded not guilty and claimed trial. 3. The prosecution examined PW-1 Ram Naresh Singh, PW-2 Smt. Sushila Devi, PW-3 S.I. K.P. Singh and PW.4 Dr. N. K. Tewari, M.O. The accused persons examined DW-1 Suresh, Junior Engineer in their defence. 4. After considering all the evidence learned Special Judge convicted and sentenced to the accused persons as aforesaid. Feeling aggrieved with the judgement and sentence passed by the Court below the accused persons above-named have preferred this appeal. N. K. Tewari, M.O. The accused persons examined DW-1 Suresh, Junior Engineer in their defence. 4. After considering all the evidence learned Special Judge convicted and sentenced to the accused persons as aforesaid. Feeling aggrieved with the judgement and sentence passed by the Court below the accused persons above-named have preferred this appeal. During pendency of the appeal the appellant Santosh has died and the appeal against him abated on 23.5.2007. 5. I have heard learned Counsel for the parties and gone through the entire evidence on record. It is undisputed that a robbery has taken place in the house of sister-in-law of the complainant. It is suggested to the complainant PW-1 that the robbery was committed by some unknown persons. Besides that there is statement of the complainant Ram Naresh Singh who has given the description of the occurrence and claimed to have seen and identified the accused persons when they were coming out from the house of Smt. Sushila Devi. On the information received from Smt. Sushila Devi he lodged a written report Ext. Ka. 1 in the next morning. The other witness Smt. Sushila Devi is victim and injured witness. She has given the entire description of robbery committed by the accused persons in her house. Therefore, it is proved that a robbery was committed in the house of Smt. Sushila Devi in the night of 3/4.2.1982 wherein the articles of her house were looted. 6. The accused persons Rajvir, deceased Santosh and Amar Singh are residents of the village of the complainant i.e. Makrandpur, PS. Kisni, District Mainpuri. The fourth accused Ranvir is resident of Harchandpur. Both the witnesses of fact have stated that the accused Ranvir was also known to him earlier as he was in visiting terms with the complainant. PW.2 Smt. Sushila Devi has stated that the accused Ranvir was already known to him. She had I seen his house. He used to visit her house. Therefore, the identity of the accused persons has been established. All the accused persons, belonging to the village of the complainant and fourth accused was also known to them but PW-1 Ram Naresh Singh PW-2 Smt. Sushila Devi have stated that they did not conceal their faces. She had I seen his house. He used to visit her house. Therefore, the identity of the accused persons has been established. All the accused persons, belonging to the village of the complainant and fourth accused was also known to them but PW-1 Ram Naresh Singh PW-2 Smt. Sushila Devi have stated that they did not conceal their faces. Learned Counsel for the appellant has argued that it is not possible that the accused persons who belonged to the same village and were already known to the inmates of the house committed robbery without concealing their faces. 7. The argument of learned Counsel for the appellants have no legs to stand. It is no hard and fast rule that the criminal of the same locality will always take precaution to conceal their faces. If they have not concealed their faces it does not mean that they did not participate in the occurrence. There is no reason for the prosecution witnesses to depose against the accused persons with whom they had no prior enmity. The prosecution witnesses were subjected to lengthy cross-examination and nothing come out to discredit them. 8. In the circumstances I am of the view that the prosecution has successfully proved its case and there is no reason to disbelieve the prosecution case. The learned Sessions Judge has rightly convicted the appellants. 9. Learned Counsel for the appellants has argued that the appellant Rajvir was aged about 29 years and appellant Amar Singh was aged about 20 years and accused Ramveer was aged about 22 years at the time of occurrence. There is no evidence that they had any criminal history. Therefore, they deserve to be released on probation of good conduct as provided under Section 360, Cr.P.C. He has further argued that the learned Special Judge has erroneously observed that the provisions of the First Offender Probation Act are not applicable in view of the promulgation of U.P. Dacoity Affected Areas Ordinance 1981-82. It is undisputed that the appellants were of tender age at the time of occurrence having no criminal history. U.P. Dacoity Affected Areas Ordinance 1982 which repeals earlier ordinance on the subject nowhere provides that Probation of Offender Act shall not be applicable in the dacoity affected area. The case relates to the dacoity affected areas. It is undisputed that the appellants were of tender age at the time of occurrence having no criminal history. U.P. Dacoity Affected Areas Ordinance 1982 which repeals earlier ordinance on the subject nowhere provides that Probation of Offender Act shall not be applicable in the dacoity affected area. The case relates to the dacoity affected areas. Besides that, Section 360, Cr.P.C. provides “When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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.” 10. In the circumstances as the accused persons are not under 21 years of age on the date of occurrence and they have been convicted for a term of seven years and no previous conviction has been shown. Therefore, it was the duty of the Court to release them on probation of good conduct. The reason for non-releasing is absolutely unsatisfactorily and against the law. 11. Therefore, I am of the view that the appellants deserve to be released on probation of good conduct. 12. The appeal is partly allowed. The conviction of the appellant Rajvir, Amar Singh and Ranvir is maintained but instead of sentencing them to any punishment I direct them to be released on probation of good conduct of their entering into a bond with two sureties each in the like amount to the satisfaction of the Court concerned within thirty days from the date of order. 13. 13. It is further directed that they will appear and receive sentence whenever they are called upon during one year from their release or as the Court may direct and in the meantime they will keep peace and be good behaviour. ————