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Madhya Pradesh High Court · body

2012 DIGILAW 230 (MP)

Vinay Singh v. State of M. P.

2012-02-23

U.C.MAHESHWARI

body2012
JUDGMENT : 1.On behalf of the appellant-accused this appeal is preferred under Section 374of Cr.PC being aggrieved by the judgment dated29-6-1996 passed by IInd Additional Sessions Judge,Bhopal, in Sessions Trial No. 281/1995, convicting him under Sections 304, PartII and 323 of IPC for RI seven years with fine of Rs .1000/-, in default of depositing the same, further six months' RI in theearlier count, while three months' RI in later. 2.The facts giving rise to this appeal in short are that, on dated 21-5-1995 atabout 7 o'clock in the morning at Village Undarai ,the acquitted co-accused Fateh Singh was abusing withfilthy languages to the deceased Prithavi Singhasking him why he is spreading the rumour about himthat he married his daughter after obtaining the money. On which, deceased- Prithavi Singh told him that he has not spread such rumour . By the time, the appellant Vinay Singh lashed with stick came there and gave a blow of such stick on the head of Prithavi Singh. Thereafter, said Fateh Singh and his other son Parasram also gave him theblows of stick on the person of Prithavi Singh.During such incident victim Prithavi Singh wasalso" subjected to threat of his life. Due to aforesaid blows of sticks Prithavi Singh sustained the injuries and fell down, on thecoming Parwat Singh (P.W. 1), to rescue him then, hewas also subjected to blows of sticks by the abovementioned persons andco-accused Sarju Bai . Soonafter the incident, said Parwat Singh (P.W. 1 ), went to the Police Station, Gunaga ,and lodged the First Information Report ( Exh . P-1),on which the offence of Sections 323 and 307 read with Section 34 of IPC wasregistered against the appellant and the co-accused Fateh Singh, Parasram and Sarju Bai . After lodging the report, the victims were sent to thehospital where on medical examination their MLC reports were prepared. Lookingto the nature of the head injuries of Prithavi Singh,for further treatment he was admitted in the hospital, but in spite longtreatment of 13 days, he could not survive and succumbed to such head injury.On carrying out the autopsy of his corpus, alleged head injury was found to because of his death and as per further opinion of the doctor, the same could have been caused by hard and blunt object. On completion of theinvestigation, the appellant and the co-accused named above were charge-sheetedfor the offence of Sections 307, 323, 302/34 of IPC. 3.After committing the case to the Sessions Court on framing the charge againstthe appellant and other co-accused for the offence of Section 302 of IPC inalternate Section 302 read with Section 34 and Section 323 in alternate Section323/34 of IPC, they abjured the guilt. On which the trial was held. Afterrecording the evidence on appreciation by acquitting the other co-accused fromall charges instead the aforesaid charge of Section 302 of IPC, the appellantwas held guilty for the offence of Sections 304, PartII and 323 of IPC and was punished with the abovementioned punishment. The sameis under challenge in this appeal. 4. Shri Imtaiz Hussain , learned appearing Counsel of the appellant aftertaking me through the record of the Trial Court along with the impugnedjudgment without challenging the findings of the Trial Court holding guilty tothe appellant for the aforesaid offence of Sections 304 Part II and 323 of IPC,has made his limited submissions on two counts. Firstly, he said that keepingin view 19 years age of the appellant on the date of the alleged incident, thebenefit of Mandatory provision of Section 6 of the Probation of Offenders Act,1958 (hereinafter in short 'the Act'), be extended to him. In such background,he said that the appellant did not possess any criminal antecedents except thepresent matter and the alleged incident was happened without any premeditationin a sudden quarrel. He also said that the findings of the Trial Court on whichthe prayer for extending the benefit of probation has been refused to theappellant in view of law laid down by the Apex Court in the matter of Chand and others Vs. The State of U. P. ,reported in AIR 1972 SC 955 , and of this Court in the matter of Mangilal Vs . State of M.P.,reported in 1989 Vol. II M.P. Weekly Notes, Note 9, is not sustainable. Hefurther said that in case the Court does not found fit to extend such benefitof probation to the appellant then, by adopting the lenient view his awardedjail sentence be reduced upto the period for which hewas already suffered in jail by enhancing some amount of fine under thediscretion of the Court. II M.P. Weekly Notes, Note 9, is not sustainable. Hefurther said that in case the Court does not found fit to extend such benefitof probation to the appellant then, by adopting the lenient view his awardedjail sentence be reduced upto the period for which hewas already suffered in jail by enhancing some amount of fine under thediscretion of the Court. According to him, after suffering the judicial custodyduring trial between 27-5-1995 till 16-10-1995, i.e., four months and 20 days,he was released on bail and he also suffered the awarded jail sentence from29-6-1996, the date of impugned judgment till passing the order for suspensionof his remaining jail sentence by this Court, vide order dated 14-10-1996,i.e., near about three and half months accordingly, he has suffered the jail of8 months and 6 days out of the awarded jail sentence and prayed to allow theappeal accordingly. 5.On the other hand, Shri Yogesh Dhande and Shri Rakesh Kesherwani , learnedCounsel for the State by justifying the impugned conviction and sentence of theappellant said that the same being based on proper appreciation of theevidence, do not require any interference either for extending the acquittal tothe appellant or for extending him the benefit of the Probation of OffendersAct even, there is no scope even to reduce the awarded jail sentence of theappellant by enhancing the amount of fine or by imposing the compensation. Itwas also argued that looking to the nature of the incident and the manner inwhich the alleged fatal injury on the head of deceased was caused by theappellant with sticks, the appellant does not deserve for adopting any lenientview in the matter and prayed for dismissal of this appeal. 6.Having heard, keeping in view their arguments advanced, I have carefully gonethrough the record of the Trial Court along with the impugned judgment. 7.Although, the case has not been argued by the appellant's Counsel to extend theacquittal to the appellant, but in order to do the justice with him, I deem fitto examine the case to find out the probability of extending the acquittal tothe appellant. In such premises, on examining the matter, I have not found anyperversity, infirmity or anything contrary to the propriety of law inappreciation of the evidence by the Trial Court in giving the finding to holdguilty to the appellant in the aforesaid Sections. In such premises, on examining the matter, I have not found anyperversity, infirmity or anything contrary to the propriety of law inappreciation of the evidence by the Trial Court in giving the finding to holdguilty to the appellant in the aforesaid Sections. So, in such premises, thereis no scope in the matter to extend the acquittal to the appellant. Hence, thefindings of the Trial Court holding guilty to the appellant for theabove-mentioned offence are hereby affirmed. 8.Coming to consider the prayer of the appellant's Counsel for extending thebenefit of the Probation of Offenders Act to the appellant is concerned, inview of aforesaid cited case of the Apex Court in the matter of Chand (supra) , I have found some substance in such prayer. In the matter of Chand and others (supra), while dealing with the questionfor extending the benefit of the Probation in the matter of Section 304-II ofIPC the Apex Court has held as under :- "6.The question before us is whether and what sentence should be awarded to eachof the accused. In so far as the two adult appellant who are above 21 years areconcerned, namely, Nanhoo , appellant No. 2, and Maqsood , appellant No. 3, we think that their acts are suchas would justify the maximum sentence of 10 years' rigorous imprisonment. Withrespect to the other appellants, namely, appellant Nos. 1, 4, 5, 6 and 7, theyare all below 21 years and one of them as already noticed by the High Courtappellant No. 5, Ashfaq is a mere lad of 12 years.What we have to consider is whether the benefits of Probation of Offenders Actshould be given to them. It, however, appears that the Central Act has not beenmade applicable to the State of Uttar Pradesh .On behalf of the appellants, it is pointed out that there is a local Actapplicable to that State, which is, the United Provinces First OffendersProbation Act, 1938. It is not denied that this Act was made applicable Rampur State after it became a part of Uttar Pradesh. It is not denied that this Act was made applicable Rampur State after it became a part of Uttar Pradesh. Section 4 of the said Act is as follows : - 4.Power of Court to release certain offenders on probation of good conduct.- (1)When any person is convicted of an offence not punishable with death ortransportation for life, and no previous conviction is proved against theoffender, if it appears to the Court before which he is convicted, regard beinghad to the age, character antecedents or physical or mental condition of theoffender and to the circumstances in which the offence was committed that it isexpedient that the offender should be released on probation of good conduct,the Court may instead of sentencing him at once to any punishment, direct thathe be released on his entering into a bond, with or without sureties, to appearand receive sentence when called upon during such period not exceeding threeyears as the Court may direct and in the meantime to keep the peace and be ofgood behaviour : Providedthat the Court shall not direct the release of an offender under this sectionunless it is satisfied that the offender, or his surety, has a fixed place ofabode and regular occupation in the place for which the Court acts, or in whichthe offender is likely to live during the period named for the observance ofthe conditions : Providedalso that if a person under twenty-one years of age is convicted of any offenceunder the Indian Penal Code, or any other enactments prescribed in this behalfunder rules made by the State Government, which is punishable with imprisonmentnot exceeding six months, the Court shall take action under this sectionunless, for special reason to be recorded in writing, it does not consider itproper to do so. ******. *** 7.Now that the offence with which the appellants are being convicted falls underthe second part of Section 304, IPC, such of them as are under 21 would be entitled to the benefits of the above provision. We think this is acase, in which the appellants who it is admitted arethe first offenders, should be released on probation. ******. *** 7.Now that the offence with which the appellants are being convicted falls underthe second part of Section 304, IPC, such of them as are under 21 would be entitled to the benefits of the above provision. We think this is acase, in which the appellants who it is admitted arethe first offenders, should be released on probation. The learned Advocate forthe State contends that it is not known whether any Probation Officers havebeen appointed for the District of Rampur and as suchwe should give him an opportunity to ascertain this fact and also that we should call for a report from that officer, if sucha person is appointed for that District. We do not think there is any necessityto obtain this information because under the first proviso all that the Courthas to be satisfied is that the offender or his surety has a fixed place ofabode and regular occupation in the place for which the Court acts or in whichthe offender is likely to live during the period named for the observance ofthat condition. In this case, it would be sufficient if we direct the DistrictMagistrate concerned to conform with the requirementsof that provision." 9.Apart the above, on arising the occasion, this Court has also answered suchquestion in the matter of Mangilal (supra), in whichit was held as under : - "Theresult is that the appeal partly succeeds and is allowed. The conviction of theaccused/appellant No. 1 Mangilal under Section 304(Pt. II)/34 of IPC and sentence of 5 years RI is set aside. His convictionunder Section 323/34, IPC is maintained, but the period of sentence ofimprisonment is reduced to the period already undergone. He is on bail. He neednot surrender. His bail bonds are discharged. The conviction ofaccused/appellant No. 2 Shambhoo under Section 304(Pt. II)/34 and Section 323/34, IPC is set aside as also the sentences of 5years and 4 months RI. Instead, he is held guilty of offence punishable underSections 304 (Pt. II)/34 and 323, IPC. His sentences of-imprisonment of 5 yearsand 4 months and also set aside. It is ordered" that accused/appellant Shambhoo shall surrender to his bail bonds and appearbefore the Trial Court on or before 1-12-1988 and execute a person bond in anamount of Rs . Instead, he is held guilty of offence punishable underSections 304 (Pt. II)/34 and 323, IPC. His sentences of-imprisonment of 5 yearsand 4 months and also set aside. It is ordered" that accused/appellant Shambhoo shall surrender to his bail bonds and appearbefore the Trial Court on or before 1-12-1988 and execute a person bond in anamount of Rs . 3,000/- with one solvent surety in thelike amount to the satisfaction of the Trial Court to the effect that he shallkeep peace and be of good behaviour for a period of 3years and shall appear and receive the sentence whenever called upon to do soby the Trial Court. 1988 (I) MPWN 134, 1979 (II) MPWN 232 and 1965 JLJ SN 83relied on. Appeal partly allowed." 10.In view of the aforesaid principles, on examining the case at hand, it isundisputed fact on record that the appellant was 19 years of the age on thedate of alleged incident as stated in his arrest memo dated 27-5-1995 ( Exh . P-20). The Trial Court while recording hisaccused-statement under Section 313 of Cr.PC on 4-6-1996 also stated his age 21 years.In such premises in the available factual matrix of the case, the appellant isheld to be entitled to extend the benefit of the mandatory provision of Section6 of the Probation of Offenders Act. In view of the law laid down in theaforesaid cited case, the findings of the Trial Court in Para 28 of theimpugned judgment refusing to extend such benefit is not sustainable hence, thesame is hereby set aside and subject to following directions, the benefit ofmandatory provision of Section 6 of the Probation of Offenders Act is extendedto the appellant and pursuant to it, his awarded sentence under the aforesaidsections on all count are set aside. 11.It is settled proposition of law that even after holding guilty to theappellant for the alleged offence and extending him the benefit of theprobation under the abovementioned Act, appellant could be directed to pay thecompensation to the victims under Sections 357 of Cr.PC .So, there is no bar under the aforesaid act for imposition of the sum regardingcompensation with a direction to pay the same to the victims or his naturalheirs and legal representatives and the same could be recovered as arrears offine. So, in such premises, while extending the benefit of probation, I directthe appellant to pay the compensation of Rs . So, in such premises, while extending the benefit of probation, I directthe appellant to pay the compensation of Rs . 25,000/-(Rupees Twenty five thousand) to the natural heirs and legal representatives ofthe deceased Prithavi Singh the same is to bedeposited by the appellant with the Trial Court within three months from today.On depositing the same, the entire sum be given to the natural heirs and legalrepresentatives of deceased Prithavi Singh in equalproportion by calling them in the Trial Court through summons. At thisjuncture, I am apprised by the appellant's Counsel that after the death of Prithavi Singh, his wife has also been passed away and now,they are surviving with two sons namely, Sarjan Singh(PW. 4) and Gudda . The Trial Court shall be atliberty to enquire this aspect. 12.Subject to aforesaid compliance and also on furnishing the personal bond of Rs . 10,000/- (Rupees Ten thousand) along with one surety ofthe like amount to the satisfaction of the Trial Court as per prescribedprocedure under the aforesaid Act, within three months along with anundertaking that he will maintain the peace and good behaviour for three years and shall not involve himself in any criminal activities, thenthe appellant is directed to be released on Probation. 13.On violating any of the aforesaid term by the appellant, the Trial Court shallbe at liberty to take appropriate steps against him in accordance with theprescribed procedure under the provisions of the Probation of Offenders Act. 14.In view of the aforesaid discussions, by affirming the conviction of theappellant under Sections 323 and 304, Part II of IPC, this appeal is allowed inpart and by extending the benefit of Probation of Offenders Act subject toabovementioned terms and conditions, the awarded sentence of the appellant ishereby set aside. Till this extent the impugned judgment is modified while theother findings of the same are hereby affirmed. The bail bond of the appellantis hereby discharged. 15.In order to secure the recovery of the compensation, it is made clear that ifthe aforesaid imposed compensation is not deposited by the appellant within theprescribed period, then by deeming the amount of compensation as imposed fineamount for the offence of Section 304-11 of IPC, the appellant has to sufferfurther two years' RI. The Trial Court shall be at liberty to take steps inthis regard if the occasion arises. 16.Appeal is allowed in part as indicated above.