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2014 DIGILAW 347 (CHH)

Deo Sahay v. State of Chhattisgarh

2014-09-16

SANJAY K.AGARWAL

body2014
ORDER 1. Three accused persons, namely, Dev Kumar, Jagdish Kumar and Deo Sahay were charge-sheeted for the commission of offence punishable under Section 325 read with Section 34 of the Indian Penal Code, 1860 (IPC for brevity) on the charges that on 07/09/2004, at about 5:00 p.m., complainant-Jagnandan (PW-2) came to the house of applicant herein Deo-Sahay to purchase and to drink country made liquor and after drinking the liquor, blamed the accused for providing sour liquor and instead of making payment of liquor, started to blow filthy languages and in that process, they have beaten each other, by which, complainant-Jagnandan (PW-2) received injury, which was reported to the Police Station Belgehna on 10-09-2004. After completion of investigation, charge-sheet was filed and they were tried for the said offences. 2. All the three accused persons denied the charges stating that they were falsely implicated in the case and claimed to be innocent. 3. In order to bring home the offence, prosecution examined as many as eight witnesses and exhibited twelve documents in support of his case, whereas, defence neither examined any witness nor exhibited any document. 4. The trial Magistrate, after full trial, convicted all the three accused persons for commission of offence under Section 325 read with Section 34 of the IPC and sentenced them to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/- to each of them with default sentence of additional rigorous, imprisonment for one month. 5. On appeal preferred by above stated three accused persons, the Court of Session, Bilaspur allowed the appeal filed by Dev Kumar and Jagdish Kumar and acquitted them from charges under Section 325 read with Section 34 of the I.P.C. However, conviction recorded to the present applicant Deo Sahay for commission of offence under Section 325 read with Section 34 of the I.P.C. was maintained but sentence was reduced from rigorous imprisonment for one year to rigorous imprisonment for six months and fine amount was increased from Rs. 500/- to Rs. 1,000/- with default sentence of additional rigorous imprisonment for three months. 6. Impugning the legality, validity and correctness of the said conviction followed by sentence, the present criminal revision has been filed by applicant-Deo Sahay. 7. Mr. 500/- to Rs. 1,000/- with default sentence of additional rigorous imprisonment for three months. 6. Impugning the legality, validity and correctness of the said conviction followed by sentence, the present criminal revision has been filed by applicant-Deo Sahay. 7. Mr. Somnath Verma, learned counsel appearing for the applicant has raised singular contention that applicant-Deo Sahay was under twenty-one years of age on the date, he has alleged to have committed an offence under Section 325 read with Section 34 of the I.P.C. punishable with imprisonment and therefore, by virtue of provision contained in Section 6 of the Probation of Offenders Act, 1958 (Act of 1958 for brevity), he could not have been imposed sentence of imprisonment, as it has not been recorded by two Courts below that it would not be desirable to release the applicant on probation of good conduct. 8. Mr. Vinod Tekam, learned Panel Lawyer appearing for the State/non-applicant would submit that looking to the nature and gravity of offence committed by the applicant herein, two Courts below have rightly not released the applicant on probation of good conduct and therefore, the revision deserves to be dismissed. 9. I have heard learned counsel appearing for the parties and considered their rival submission and also perused the record with utmost circumspection. 10. The short question that falls for consideration is whether the two Courts below are justified in sentencing the applicant to imprisonment and not releasing him on probation of good conduct ignoring the legislative mandate contained in Section 6 of Act of 1958. 11. In order to consider the point raised, it would be proper to notice Section 6(1) of the Act of 1958:- 6. Restrictions on imprisonment of offenders under twenty-one years of age - (1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it 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 Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. 12. 12. The object of Section 6 of the Act of 1958 is to ensure that offenders under twenty-one years of age are not sent to jail for offences which are not so serious as to warrant imprisonment for life, with a view to prevent them from contamination due to contact with hardened criminals of the jail. The Section contemplates than an offence punishable with imprisonment, not being imprisonment for life, must invariably be allowed to be released on admonition or probation unless there are reasons to be recorded having regard to the nature of offence and the character of offender. 13. In Daulat Ram vs. State of Haryana, AIR 1972 SC 2434 , the Supreme Court has held that Section 6 of the Act of 1958 should be liberally construed keeping in view the spirit embodied therein and observed as under:- "8. Now the object of Section 6 of the Act, broadly speaking, is to see that young offenders are not sent to jail for the commission of less serious offences mentioned therein because, of grave risk to their attitude to life to which they are likely to be exposed as a result of their close association with the hardened and habitual criminals, who may happen to be the inmates of the jail. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. This would clearly do them more harm than good, and for that reasons it would perhaps also be to an extent prejudicial to the larger interests of the society as a whole. It is for this reason that the mandatory injunction against imposition of sentence of imprisonment has been embodied in Section 6. This mandate is inspired by the desire to keep the young delinquent away from the possibility of association or close contract with hardened criminals and their evil influence. This section, therefore, deserves to be liberally construed so that its operation may be effective and beneficial to the young offenders who are prone more easily to be led astray by the influence of bad company." 14. This section, therefore, deserves to be liberally construed so that its operation may be effective and beneficial to the young offenders who are prone more easily to be led astray by the influence of bad company." 14. In light of statutory provision contained in Section 6 of the Act of 1958, and the principles of law laid down by their Lordships of Supreme Court in Daulat Ram ( AIR 1972 SC 2434 ) (supra), it is quite vivid that an accused person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment not being an imprisonment for life is entitled to be released on admonition as provided in Section 3 of the Act of 1958 or to be released on probation of good conduct as provided in Section 4 of the Act of 1958, unless there are reasons to be recorded having regard to the nature of the offence and the character of the offence. In the present case, it would appear that the applicant Deo Sahay was aged about twenty years, when the charge-sheet was filed, which is apparent from the arrest memorandum (Exhibit P-12), in which, present applicant shown to be twenty years of age,, thus admittedly, the applicant was under twenty-one years of age when he had committed an offence under Section 325 read with Section 34 of the I.P.C, which is punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, but the trial Court as well as Appellate Court ignored the legislative mandate contained in Section 6 of the Act of 1958 and straightaway without considering as to whether he is entitled for benefit of Sections 3 & 4 of the Act of 1958, sentenced to imprisonment, which is clearly unsustainable in law in view of provision contained in Section 6 of the Act of 1958. 15. Now, the question is whether the applicant is entitled to be released on admonition as provided in Sections 3 & 4 of the Act of 1958. 16. In order to consider the point raised, it would be proper to notice Sections 3 & 4 of the Act of 1958:- "3. 15. Now, the question is whether the applicant is entitled to be released on admonition as provided in Sections 3 & 4 of the Act of 1958. 16. In order to consider the point raised, it would be proper to notice Sections 3 & 4 of the Act of 1958:- "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 purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." "4. Power of court to release certain offenders on 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 surties, 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 take 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 of 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." 17. (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." 17. That, the occurrence took place as a result of sudden quarrel between the applicant and complainant Jagnandan as the liquor sold by the applicant was sour and was in bad taste and in course of sudden occurrence admittedly, applicant has already sustained some injuries and on his report the preventive proceeding under Sections 107 and 116 of the Cr. P.C. was also taken against the complainant Jagnandan. The trial Court has clearly recorded a finding that there was no previous criminal antecedent against the present applicant and he was found guilty of having committed grievous hurt punishable under Section 325 read with Section 34 of the I.P.C. The maximum sentence provided therein is seven years. 18. Having regard to the circumstances of the case and the nature of the offence as also the character of the offender, in the considered opinion of this Court, it would be expedient to release the applicant on probation of good conduct for a period of one year from today. His sentence of imprisonment shall remain suspended during this period. He is already on bail and shall continue to be so, provided he executes a bond to the satisfaction of the trial Court, within two weeks from today with sureties as that Court may direct, to appear and receive sentence, when called upon during the said period of one year. In the meantime, the applicant must keep peace and be of good behaviour. The sentence of imprisonment shall stand remitted, if he does so. The criminal revision is accordingly disposed of in the manner indicated above. Order accordingly.