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Rajasthan High Court · body

2008 DIGILAW 1110 (RAJ)

Gopal @ Shri Gopal v. State of Rajasthan

2008-04-23

R.S.CHAUHAN

body2008
Honble CHAUHAN, J.–The appellant has challenged the judgment dated 17.7.1985 whereby the learned trial Court has convicted him for offence under Section 324 of Indian Penal Code (for short, "IPC"), while acquitting him of offences under Sections 147, 148, 380 and 307 of IPC. However, instead of granting the benefit of probation, the learned trial Court has sentenced him to ten months rigorous imprisonment and has imposed a fine of Rs. 200/- and has directed that he shall undergo two months rigorous imprisonment in default of payment of fine. (2). Briefly, the facts of the case are that Ram Dutt (PW.1) lodged a report (Ex. P/1) at the Police Station, wherein he claimed that: On 15.3.1982, in the morning, around 10 O Clock, when he went to the temple of Hanumanji, which is near his shop, Shri Gopal (the appellant), Jagdish, Nihal Singh, Ram Bharosi, Om Prakash, Data Ram and Ram Kishan and other two unidentified persons came near him. At that time, Ram Kumar Brahmin was standing near the complainant, Ram Dutt. While Jagdish had a revolver, one of the two unidentified persons had a gun. According to the complainant party, the group of people came near the complainant and attacked the complainant. When Shri Gopal fired from his gun, Ram Kumar Brahmin pushed the complainant inside the gallery of his house. However, even then the complainant sustained pallets in his fingers and in his palm. Ram Kumar Brahmin closed the shutter of the gallery. Thereafter, the accused persons entered into the shop of the complainant and took away Rs. 500/- and a HMT watch. When the villagers rushed to the rescue, the accused persons fired from their gun in the air and went away towards the village Vasai Nabab. Ram Dutt was taken for medical treatment to the village Sapao. However, as the doctor was not available there, no medical report or injury report could be prepared. Thereafter, the complainant went to the police station to lodge a report. (3). Upon this report, a formal FIR (Ex. P. 4) was chalked out. Subsequently, challan was submitted against the above named persons namely Shri Gopal, Jagdish, Om Prakash, Ram Bharosi, Nihal Singh, Data Ram, Ram Kishan. (4). In order to support its case, the prosecution examined six witnesses and submitted eight documents. The defence neither examined any witness, nor submitted any document. P. 4) was chalked out. Subsequently, challan was submitted against the above named persons namely Shri Gopal, Jagdish, Om Prakash, Ram Bharosi, Nihal Singh, Data Ram, Ram Kishan. (4). In order to support its case, the prosecution examined six witnesses and submitted eight documents. The defence neither examined any witness, nor submitted any document. However, the statements of the accused persons were recorded under Section 313 IPC. In his statement, Gopal claimed that while he was going from his village to village Khoragarh, the complainant had fought with him and had shot at his foot. In order to prove this fact, he had submitted an injury report. But, the injury report could not be proved in the Court. After going through the oral and documentary evidence, the learned trial Court acquitted all the co-accused persons except the accused-appellant. The learned trial Court convicted and sentenced the appellant as aforementioned. Hence, this appeal before this Court. (5). Mr. S.S. Sunda, the learned counsel for the appellants, has not challenged the conviction, but has challenged the non- granting of probation to the appellant by the learned trial Court. According to the learned counsel, this is the only crime committed by the appellant. The offence for which he has been convicted, namely Section 324 IPC, is not punishable either with life imprisonment or with death. Since the conditions required by Section 360 of Code of Criminal Procedure Code (for short, `Cr.P.C.) were fulfilled, the learned trial Court was required to give reasons for denying the benefit of probation to the appellant. But, the learned trial Court has denied the said benefit ostensibly on the ground that "the trial was completed within a short span of three years." According to the learned counsel, this is not "special reason" for denying the benefit of probation. Hence, he has made a limited prayer to this Court that the benefit of probation should be granted to the appellant. (6). On the other hand, Mr. Vijayant Nirwan, the learned counsel for the complainant, has vehemently argued that sufficient evidence exists for convicting the appellant for offence under Section 324 of IPC as discussed in detail by the learned trial Court. Moreover, those persons who break the law do not deserve the benefit of probation. Therefore, he has supported the impugned judgment. (7). Likewise, Mr. Vijayant Nirwan, the learned counsel for the complainant, has vehemently argued that sufficient evidence exists for convicting the appellant for offence under Section 324 of IPC as discussed in detail by the learned trial Court. Moreover, those persons who break the law do not deserve the benefit of probation. Therefore, he has supported the impugned judgment. (7). Likewise, Mr. Arun Sharma, the learned Public Prosecutor has argued that the benefit of probation should not be granted to the appellant. (8). We have heard the learned counsel for the parties, have perused the impugned judgment and have examined the documents available on record. (9). Theory of punishment has undergone a sea-change in the last century. From revenge to deterrence, the theory of punishment has now come to the reformative stage. The discoveries in the field of psychology heralded in the 19th Century by Sigmund Freud and subsequently developed in the 20th Century by B.F. Skinner have influenced penology. A person is not born as a criminal, but is transformed as a criminal because of the environment around him. However, the experiment of B.F. Skinner, with piegions, have proved the fact that people can be conditioned and re-conditioned and can be taught new skills and behavioral patterns. The studies in psychology subsequently led to change in theory of punishment in penology. The purpose behind punishment is no longer punitive or deterrent, but the aim is to reform the offender to the extent that he becomes a law-abiding citizen. With the reformative theory of punishment in the forefront, Sections 360 and 361 of Cr.P.C. were introduced in the Criminal Procedure Code. Likewise, in the year 1958, the Indian Parliament enacted the Probation of Offenders Act, 1958 (for short, `the Act of 1958). The purpose of probation is to ensure that the offender observes good behaviour and continues to be a law-abiding and law fearing citizen. (10). Section 360 of Cr.P.C. is as under:- "360. Likewise, in the year 1958, the Indian Parliament enacted the Probation of Offenders Act, 1958 (for short, `the Act of 1958). The purpose of probation is to ensure that the offender observes good behaviour and continues to be a law-abiding and law fearing citizen. (10). Section 360 of Cr.P.C. is as under:- "360. Order to release on probation of good conduct or after admonition:- (1) 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 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: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class forwarding the accused to or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860) punishable with not more than two years imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if he thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode of regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (7) The Court, before directing the release of an offender under sub-section (1) shall be satisfied that an offender or his surety (if any) has a fixed place of abode of regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." (11). For a case to be covered under Section 360 Cr.P.C., following conditions have to be met: (i) The offender should be above twenty-one years of age. (ii) Is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less. (iii) Or, when a person who is under twenty-one years of age or is a woman. (iv) Such a person is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender. (v) If it appears to the Court that it is expedient that the offender should be released or probation of good conduct, the Court may release him on probation. (12). In case, these conditions are met, ordinarily the Court should release the offender on probation. In case, the Court decides not to release the offender on probation, according to Section 361 Cr.P.C., the Court is legally bound to state "special reasons" for denying the probation to the offender. (13). Section 3 of the Act of 1958 is as under: "3. In case, these conditions are met, ordinarily the Court should release the offender on probation. In case, the Court decides not to release the offender on probation, according to Section 361 Cr.P.C., the Court is legally bound to state "special reasons" for denying the probation to the offender. (13). Section 3 of the Act of 1958 is as under: "3. Power of Court to release certain offenders after admonition.-When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him 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 so to do, then notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition. Explanation.- For the purpose of this section, previous conviction against a person shall include any previous order made against him under this section or section 4. (14). Section 3 of the Act of 1958 empowers the Court to release certain offenders after admonishing i.e., after warning them about consequences of their act and alerting them that such conduct will not be acceptable to the society at large and directing them to become law-abiding citizens in future. (15). Section 4 of the Act of 1958 is as under: 4. (15). Section 4 of the Act of 1958 is as under: 4. Power of Court to release certain offenders or 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 taken 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 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." (16). Section 4 on the other hand, empowers the Court to release certain offenders on probation of good conduct. The power to release a person on probation is extended to all the offences which are not punishable with death or imprisonment for life. Thus, a large number of offences are covered under Section 4 of the Act of 1958 where the benefit of probation can be granted. (17). In the case of Bishnu Deo vs. State of West Bengal ( AIR 1979 SC 964 ), the Honble Supreme Court had an occasion to deal with Sections 360 and 361 of Cr.P.C. in great detail. The Apex Court not only dealt with the requirement of Section 360 Cr.P.C., but also dealt with the factors which the Court should keep in mind while dealing with the grant of probation under Section 360 Cr.P.C. The Honble Supreme Court held as under: If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so, Sec. 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the `special reasons for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of S. 360 wherever it is possible to do so and, to state "special reasons" contemplated by S. 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country... We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors." (18). In the case of Chhanni vs. State of U.P. (2006) 5 SCC 396) = (2007(1) RLW 429 (SC), the Honble Supreme Court dealt with the differences between Sections 360 and 361 of Cr.P.C., on the one hand, and Section 4 of 1958 Act on the other hand. The Apex Court observed thus: "Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, that gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable. The comparative elevation of the provisions of the Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age of any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for probation officers in assisting the courts in relation to supervision and other matters while the Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to coexist at the same time in the same area. Such coexistence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. Enforcement of the Probation Act in some particular area excludes the applicability of the provisions of Sections 360 and 361 of the Code in that area." (19). A similar view has been held in the case of Daljit Singh & Ors. vs. State of Punjab (2006(6)SCC 159). (20). In the light of principles enunciated by the Honble Supreme Court, lets consider the present case. A similar view has been held in the case of Daljit Singh & Ors. vs. State of Punjab (2006(6)SCC 159). (20). In the light of principles enunciated by the Honble Supreme Court, lets consider the present case. According to the arrest memo of the appellant, he was about thirty-five years of age when the offence was committed by him. Although, he was charged for offence under Section 307, but he was eventually convicted for offence under Section 324 IPC. The said offence is punishable only with three years of imprisonment or fine or both. According to the information available on record, this was his first offence committed by him. Even today, neither the learned counsel for the complainant, nor the learned Public Prosecutor has brought on record any complaint or any now fact about the involvement of the appellant in any other criminal activities between the period 1982 till present. (21). Therefore, this Court is of the opinion that after being released on bail by this Court in 1985 and till today, the appellant has been leading a peaceful life. During this period, he has neither disturbing the even tempo of life, nor posed a threat to the society at large. Even during the trial the appellant did not commit any offence. Looking to the totality of the case, the learned trial Court should have granted the benefit of probation to the appellant under the Probation of Offenders Act, 1958. The only reason stated by the learned trial Court is that "the trial has not taken too long time to be completed". The duration of the trial, whether too long or too short, cannot the decisive factor for grant or refusal of probation. For, the duration of the trial is not within the control of an offender. The learned Judge should have considered the nature of the offence, the circumstance in which the offence was committed, the age and personality and the conduct of the offender, the chance of his repeating the offence, his economic status, his family background, the impact or the threat the offender would pose to the victim or to victims family, in case, the offender were released on probation. If these factors have not been considered by the learned trial Court, the learned trial Court has erred in not granting the benefit of probation to the appellant. (22). If these factors have not been considered by the learned trial Court, the learned trial Court has erred in not granting the benefit of probation to the appellant. (22). For these reasons stated above although the conviction is confirmed for offence under Section 324 IPC, but the benefit of probation shall be extended to the appellant Gopal @ Shri Gopal S/o Ninua Ram, who shall be required to maintain peace and tranquillity for a period of one year from the date of this judgment. In case the said condition is violated, then the benefit of probation shall be cancelled and he shall be required to serve the sentence as awarded by the trial Court in its judgment dated 17.7.85. The appellant shall be required to submit two bail bonds in the sum of Rs. 20,000/- with one personal surety of the same amount to the satisfaction of the concerned trial Court. The appellant is directed to submit the bail-bonds within a period of three months from the date of this judgment. The appeal is disposed of with these observations.