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2010 DIGILAW 303 (MP)

Narsingh Narayan v. State of M. P.

2010-03-12

U.C.MAHESHWARI

body2010
JUDGMENT : U. C. Maheshwari, J. 1 This appeal is preferred under Sec.374 (2) of the Cr. P. C. on behalf of the appellant accused being aggrieved by the judgment dated 30.6.1995 passed by IIIrd Additional Sessions Judge, Satna in Session trial No.80/92 convicting and sentencing the appellant under Section 324 of IPC for RI three years with fine of Rs.500. In default of depositing the fine further three months SI has been awarded. 2 As per case of the prosecution on dated 13.4.1992 at about 5.30 in the evening on grazing land of the village lalahach Gohirabandh. The complainant Hariom Narayan was subjected to beating by the present appellant accompanied with the acquitted co-accused by means of different implements, which were in the hands of the accused, out of them, the appellant caused him the blow of Gadasa. Resultantly, the complainant sustained injuries. He was taken to hospital where his MLC report was prepared. In this regard FIR, Ex. P-3 was initially registered at city Kotwali, Satna, on which the offence was registered as Crime no.87/92 at P. S. Rampur Baghelan against the present appellant and other co-accused for the offence under Sec.307, r/w Sec.34 of IPC. After carrying out the investigation on concluding the same, the appellant alongwith others was charge sheeted for the abovementioned offence. 3 After committing the case, on framing the charge against all the accused for the offence under Sec.307 and Sec.147 in alternate section 148, r/w Sec.307 and 149 of IPC, they abjured the same, on which the trial was held, in which the prosecution has examined as many as ten witnesses. No one was examined on behalf of the appellant in defence. On appreciation of the evidence by acquitting the other co- accused from the aforesaid all charges, the present appellant instead the aforesaid offenses was held guility under Sec.324 of ipc and sentenced, as mentioned above. The same is under challenge in the instant appeal at the instance of the appellant. On appreciation of the evidence by acquitting the other co- accused from the aforesaid all charges, the present appellant instead the aforesaid offenses was held guility under Sec.324 of ipc and sentenced, as mentioned above. The same is under challenge in the instant appeal at the instance of the appellant. 4 Shri Sharad Verma, learned appearing counsel of the appellant, initially begins his argument on entire merits of the matter but in view of the availability of the positive evidence against appellant about his involvement and causing the injuries to victim by the alleged "gandasa", on making some query, in response of it, he restricted his arguments only for extending the benefit of Probation of Offenders Act 1958 to the appellant. According to him, the appellant being eighteen years of the age on the date of the incident and being first offender in view of mandatory provision of Sec.6 of the Probation of Offenders act was entitled for extending such benefit, but he has been deprived by the trial court in this regard under the wrong premises and prayed to extend such benefit to the appellant by allowing this appeal till this extend. 5 Shri Vevek Agrawal, learned Government Advocate, on the other hand by responding the aforesaid arguments said that in the available set of evidence, the trial court was correct in not extending such benefit to the appellant. By referring the prosecution evidence, he said that in such circumstances this appeal could not be allowed even for extending the benefit of Probation to the appellant and prayed for dismissal of the same. 6 Having heard, keeping in view the arguments of the counsel, I have gone through the record of the trial court alongwith the impugned judgment. Although the case has not been argued by the appellant's counsel on other merits but in order to examine the case on merits, I have gone through the evidence and perused the exhibited papers available in record. The story put fourth by the prosecution has been duly proved by admissible evidence of the examined injured and other witnesses and the same has been rightly appreciated by the trial court for holding the conviction of the appellant under the aforesaid section. Therefore, in this regard the impugned judgment does not require any interference at this stage. The story put fourth by the prosecution has been duly proved by admissible evidence of the examined injured and other witnesses and the same has been rightly appreciated by the trial court for holding the conviction of the appellant under the aforesaid section. Therefore, in this regard the impugned judgment does not require any interference at this stage. Pursuant to it, the finding of the trial court holding conviction against the appellant under Sec.324 of ipc is hereby affirmed. 7 Coming to consider the prayer of extending the benefit of Sec.6 of the Probation of Offenders Act 1958 to the appellant is concerned, on bare perusal of such Section, it is apparent that such provision being mandatory, the court is bound to extend the benefit of same to the accused persons who was below the age of 21 years on the date of the alleged offence if he is not being held guilty for the offence made punishable with the death sentence or imprisonment of life under the law, unless the court is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Sec.3 or Sec.4 of the aforesaid Act and if the court wants to pass any sentence of imprisonment against such offender, then it is bound to record the reason in that regard. It is noted that such benefit has not been extended by the trial court only on the pretext of the seriousness of the offence and no specific reasons are assigned in this regard. Such reasons of the trial court in view of the aforesaid mandatory provision of Sec.6 of Probation of Offenders act has not been appealed me. There are catena of decisions of the apex Court in this regard which are still governing such field. In such premises, the findings of the trial court in para 45 of the impugned judgment regarding non extending the benefit of probation deserves to be and is hereby set aside and the appellant is held to be entitled for extending the benefit of Sec.6 of the Probation of the Offenders act. In such premises, the findings of the trial court in para 45 of the impugned judgment regarding non extending the benefit of probation deserves to be and is hereby set aside and the appellant is held to be entitled for extending the benefit of Sec.6 of the Probation of the Offenders act. 8 In view of the aforesaid discussion the findings of the impugned judgment holding conviction against the appellants under Sec.324 of IPC is hereby affirmed and by allowing this appeal in part the sentence and fine imposed by the trial court for the aforesaid offence is set aside and the appellant is extended the benefit of mandatory provision of Sec.6 of the Probation of Offenders Act. In such premises, it is directed that on furnishing a personal bond of rs.10,000/- (Rs. Ten Thousand), alongwith one surety of the like amount to the satisfaction of the trial court within 30 days, with an undertaking that he will not involve himself in any criminal activity for two years, he be released on probation. In case if any condition of undertaking is violated by the appellant, then he has to suffer its consequences under the provision of Probation of Offenders Act. 9 The appeal is allowed in part as indicated above.