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2010 DIGILAW 1138 (ALL)

SUBHASH CHANDRA v. STATE OF U. P.

2010-04-07

S.K.TRIPATHI

body2010
JUDGMENT Hon’ble S.K. Tripathi, J.—Heard the learned counsel for the appellant Subhash Chandra and the learned AGA and perused the record. 2. The appellant Subhash Chandra has preferred this appeal against the judgment and order dated 29.3.1982 passed by Sri R.S. Pandey, the then VIII Additional Sessions Judge, Mainpuri in S.T. No. 355 of 1979, whereby the learned Additional Sessions Judge convicted the appellant under Section 307 read with Section 34, IPC and instead of sentencing him to any punishment, released him on probation of good conduct for a period of two years on his furnishing a personal bond of Rs. 2,000/- and two sureties each in the like amount. 3. The relevant facts of the case are that one Shobharam, Head Constable was posted at out post Railway Gate on 5.2.1978. On the said date he alongwith Shri Krishan and Nek Ram Home Guard proceeded on gusht in the city and reached Mohalla Bansigaura, at about 4.00 a.m. in the morning. He was waiting for arrival of some miscreants making a Nakabandi in front of the gate of Ekarsanand Inter College concealing himself near the house of one Gore Lal. At about quarter to six, two persons (Shankar and appellant Subhash) came from Mohalla Chhapatti and wanted to go towards Ekarsha Nand Ashram. When both these persons reached near the police party, on suspicion Head Constable Shobharam challenged them and wanted to take their search. The appellant Subhash told Shankar that they are police personnel and knew them and they would not leave them and asked him to kill the police party. Shankar and appellant Subhash both took out their kattas and Shankar fired his katta on Head Constable Shobharam, which injured him at his right hand, stomach and cheek. The police party raised alarm which attracted Gore Lala but accused Shankar and appellant Subhash both succeeded in running away. An in-vain chase was made by the police party but since both these persons threatened them with their katta, they came back. It is also said that the police party knew the accused Shankar and the appellant Subhash from before. The accused had left their chappal, one maflar and one angauchha. Injured Shobharam was brought to the police station where constable Shri Krishan lodged a verbal report (Exhibit Ka 3) and deposited the articles left by the accused persons. It is also said that the police party knew the accused Shankar and the appellant Subhash from before. The accused had left their chappal, one maflar and one angauchha. Injured Shobharam was brought to the police station where constable Shri Krishan lodged a verbal report (Exhibit Ka 3) and deposited the articles left by the accused persons. The woolen coat, jersy, shirt and kamij terelene which were blood-stained and which Shobharam had put on, were also deposited at the police station and were taken in custody and a case against both these accused was registered under Section 307, IPC. The injuries of Shobharam were examined by Dr. S.S. Agrawal of the District Hospital, Mainpuri at 6.30 a.m. who found three gun-shot injuries caused by fire arms, vide his report Exhibit Ka-4. The investigation was entrusted to one Mahavir Prasad Sharma, Sub-Inspector who proceeded on spot, inspected the same and prepared site plan (exhibit Ka-5) on the same day and after necessary investigation, submitted the charge-sheet against the appellant Subhash. 4. The appellant pleaded not guilty and claimed to be tried. 5. The prosecution examined in all four witnesses, namely, PW-1 Injured Shobharam, PW-2 Nek Ram Home Guard, PW-3 Malikhan Singh Station Officer and PW-4 Sri Krishan. Besides this, prosecution tendered the injury report (Exhibit Ka-4), the genuineness of which has been admitted by the learned counsel for the appellant. 6. The learned trial Court on perusal of the evidence on record, found the charge under Section 307/34, IPC proved beyond all reasonable doubts against the appellant and accordingly convicted and sentenced him as aforesaid. 7. The prosecution case rests on the ocular testimonies of injured witnesses namely PW-1 Shobharam and PW-2 Megharam. These two witnesses have supported the prosecution story in the witness box. They have further stated that they knew the appellant from before the occurrence and had identified him as one of the assailaints at the time of the incident. They have been subjected to lengthy cross-examination but nothing material could be brought on record to discredit their testimonies. There does not appear to be any reason for these two witnesses to falsely implicate the appellant and to give evidence against him. They had no enmity whatsoever with the appellant. Their statements have been corroborated by the injury report, Exhibit Ka-4, whose genuineness was admitted by the learned counsel for the appellant. There does not appear to be any reason for these two witnesses to falsely implicate the appellant and to give evidence against him. They had no enmity whatsoever with the appellant. Their statements have been corroborated by the injury report, Exhibit Ka-4, whose genuineness was admitted by the learned counsel for the appellant. In my opinion, the learned Additional Sessions Judge has not committed any legal or factual error in believing the statements of the injured witnesses. The learned counsel for the appellant though argued at length but could not point out any infirmity in the statements of the aforesaid witnesses. During the course of hearing the learned counsel for the appellant very frankly conceded that the charge under Section 307/34, IPC is fully proved beyond all reasonable doubts against the appellant but he, however, submitted that the appellant is in government service and there is a likelihood of jeopardizing the service career of the appellant due to conviction recorded by the learned Additional Sessions Judge. In my opinion, the instant appeal cannot be allowed on this ground. 8. The learned Additional Sessions Judge has not recorded any sentence against the appellant and instead of sentencing him to any punishment, released him on probation of good conduct and behaviour for a period of two years. In this way, the learned Additional Sessions Judge has already taken a very lenient view in the matter. So far as the alleged disqualification of the appellant to continue in service and likelihood of adversely affecting his service career is concerned, the submissions of the learned counsel for the appellant in this regard has no substance. The provisions of Section 12 of the Probation of Offenders Act, 1958 are clear on this point, which reads : “Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4, shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. Provided that nothing in this Section shall apply to a person, who after his release under Section 4, is subsequently sentenced for the original offence.” 9. Provided that nothing in this Section shall apply to a person, who after his release under Section 4, is subsequently sentenced for the original offence.” 9. A perusal of the aforesaid provisions reveals that if a person is found guilty of an offence and is dealt with in accordance with the provisions of Section 3 or 4 of the aforesaid Act, he shall not suffer any disqualification attaching to a conviction of an offence under any law. There is however, an exception provided in the proviso to Section 12 of the aforesaid Act, according to which if a person is released on probation and commits a breach of any of the conditions of the probation during the continuance of the probation and sentenced by the Court for the original offence, due to such breach, he is not entitled to the benefit of Section 12 of the aforesaid Act. 10. The aforesaid view has been proved by the Apex Court in the case of Rajbir v. State of Haryana, AIR 1985 SC 1278 . In the case of Rajbir (supra) the Apex Court while releasing the appellant on probation, observed that the conviction should not affect the appellant’s service. The appellant’s aforesaid apprehension, therefore, has no substance. 11. In view of the aforesaid reasons, the appeal has no merit and is accordingly dismissed. ————