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Allahabad High Court · body

2015 DIGILAW 3675 (ALL)

MATA PRASAD v. STATE OF U. P.

2015-11-26

RANJANA PANDYA

body2015
Judgment : 1. This criminal appeal has been preferred against the judgement dated 2.7.1985 passed by IIIrd Additional Sessions Judge, Banda in Session Trial No. 933 of 1984 (State Vs. Mata Prasad & Others), under Sections 324/34 and 452/34, Police Station-Kotwali Banda, wherein accused Munna Steel, Binnu and Mata Prasad were found guilty under Section 452 read with Section 34 I.P.C. and sentenced them to two years rigorous imprisonment. Further, all the accused were found guilty under Section 324 read with Section 34 I.P.C. and were sentenced to two years rigorous imprisonment. Both the sentences were to run concurrently. The accused Mata Prasad died during the pendency of the appeal, hence appeal against Mata Prasad stood abated. 2. The brief facts of the case are that one Munna-informant lodged the written report at the police station stating therein that on 1.1.1983 at 9:15 p.m. he went to the house of Bhola, who was residing in the same locality, he was accompanied with Bhairo Deen. The informant had purchased some land from Murari Kumhar. Murari wanted to get the sale-deed cancelled. The informant had taken the sale-deed to the house of Bhola. As soon as he reached the house of Bhola alongwith Bhairo Deen, he found Harish Chandra present there. Besides Harish Chandra and Binnu armed with country made pistol and Mata Prashad holding a torch also entered in the house of Bhola. A lantern were lighted in the house of Bhola. All the three accused started dragging Bhola out of his house. Munna Steel attacked Bhola with country made pistol. Bhola sustained injuries on his hand, Binnu fired at Bhola, which hit Bhairo Deen. On hue and cry being raised by the witnesses, all the accused ran away. Hence, written report was filed. 3. Head Moharir Ram Ujagar prepared the chick report and proved it as Exhibit Ka-3 and scribed the matter in the G.D. as report No. 50 and proved it as Exhibit Ka-4. The investigation of the matter was entrusted to P.W. 5 B.D. Tripathi, who collected three pellets from the spot and prepared recovery memo and proved it as Exhibit Ka-5. He also collected plain and blood stained earth from the spot and prepared its memo, proved it as Exhibit Ka-6. He also seized the lantern and prepared its memo, proved it as Exhibit Ka-7. He also collected plain and blood stained earth from the spot and prepared its memo, proved it as Exhibit Ka-6. He also seized the lantern and prepared its memo, proved it as Exhibit Ka-7. He siezed the blood stain clothes of the injured, prepared its memo and proved it as Exhibit Ka-2. After that he inspected the spot, prepared site plan, which was proved as Exhibit Ka-8. 4. The injured was sent to the hospital for the medical examination. Bhairo Deen was examined by P.W. 6 Dr. A.K. Agrawal on 1.1.1983. Dr. A.K. Agrawal also examined Munna Kumhar and found the following injuries and proved the medical report as Exhibit Ka-12:- (a) Multiple gun shot entry wound covering area of 42 x 15 x c.m., 6 in numbers on abdomen and size of wounds present on right thigh are 1 x 1 x c.m. to 1-1/4 x c.m. x 1-1/4 x c.m. Blood was present. (b) Incised wound 1-2/2 x 3/4 c.m. x skin deep on left side of forehead. (c) Fire arm entry wound alongwith trimatic empetation 5.5 x 2 x c.m. x bone deep on lower side of left thumb towards front and outer side, blackening, scorching, and tattooing was present. (d) Fire arm entry wound 3.5 x 2 x c.m. x deep bone alongwith trimatic empetation on upper side of left middle finger, blackening, scorching and tattooing was present. 5. After investigation charge-sheet was submitted, which was proved by the I.O. as Exhibit Ka-9 and 10. Charges under Sections 307/34 and 452 I.P.C. were framed against the accused persons, who pleaded not guilty and claimed trial. The prosecutrix examined as many as six witnesses as stated aforesaid and closed its evidence. The statement of the accused was recorded under Section 313 Cr.P.C., in which they denied the occurrence but no evidence was adduced by the defence. 6. After hearing both the counsels for the parties the learned trial court found the accused guilty and convicted them as stated above. 7. I have heard learned counsel for the parties and learned A.G.A. for the State. It has been contended on behalf of the applicants that the matter relates to the year 1983. The statement of the accused under Section 313 Cr.P.C. was recorded on 24.6.1985, wherein accused Munna Steel was 22 years of age and accused Binnu was 28 years of age. It has been contended on behalf of the applicants that the matter relates to the year 1983. The statement of the accused under Section 313 Cr.P.C. was recorded on 24.6.1985, wherein accused Munna Steel was 22 years of age and accused Binnu was 28 years of age. Thus, presently the accused Munna Steel is about 52 years of age whereas accused Binnu is about 58 years of age. 8. As per chick report the occurrence took place on 1.1.1983 at 9:15 p.m., whereas the matter was reported at the police station on the same day at 21:45 hrs. The distance of the police station from the place of occurrence one and half kilometer. The F.I.R. is prompt. 9. As far as the oral evidence is concerned P.W. 1 Munna Steel who has stated the motive of the offence. This witness has proved the written report as Exhibit Ka-1. He has supported the prosecution version in examination-in-chief. In cross-examination he has stated that one shot fire had made, which hit him. This shot fired by Munna Steel. This witness was cross-examined at length, but there is nothing in cross-examination, which would give any benefit to the accused. P.W. 2 is Bhairo Deen, this witness did not support the prosecution version inasmuch as he has said that he did not see anyone at the place of occurrence except Munna. P.W. 3 Bhola Nath who has also not supported the prosecution version. He was declared hostile and cross-examined by the prosecution, but his cross-examination also did not come rescue of the prosecution. The statement of P.W. 4 Harish Chandra did not support the prosecution version. He was also declared hostile and was examined by the prosecution. But his cross-examination also did not come to the rescue of the prosecution. 10. From the evidence on record, it is clear that the injured were promptly treated by the Doctor in the hospital. The statement of P.W. 1 Munna is trustworthy and reliable. 11. Having regard to the injuries of the injured they cannot be said to be self inflicted. 12. I find that the evidence of the prosecution witnesses is clear and cogent and there is no illegality in appraisal of the evidence by the courts below. The residual question is applicability of Sections 3 and 4 of the Probation of Offenders Act and Section 360 of the Code. 12. I find that the evidence of the prosecution witnesses is clear and cogent and there is no illegality in appraisal of the evidence by the courts below. The residual question is applicability of Sections 3 and 4 of the Probation of Offenders Act and Section 360 of the Code. Where the provisions of the Probation of Offenders Act are applicable the employment of Section 360 of the Code is not to be made. 13. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the Legislature who gave birth to the Probation of Offenders 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 of Offenders Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative allegation of the provisions of the Probation Act are further noticed in Sub Section (10) of the 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation of Offenders Act. Those provisions have importance of their own in the respective areas where they are applicable. 14. 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 7 years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation of Offenders 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 rule for Probation Officers in assisting the courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. 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 rule for Probation Officers in assisting the courts in relation to supervision and other matters while Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that the persons found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders 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 co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provision 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. 15. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows:- "3. The provisions of Section 360 of the Code are wholly inapplicable. 15. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. Section 3 of the Probation of Offenders Act reads as follows:- "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." 16. Section 4 of the Probation of Offenders Act reads as follows:- "4. 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." 16. Section 4 of the Probation of Offenders Act reads as follows:- "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 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 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. Thus, the appeal is accordingly disposed of. The conviction of the appellant is upheld. The appellants shall get benefit of Section 4 of the Probation of Offender Act instead of sentencing the accused to two years rigorous imprisonment under Section 452/34 I.P.C. and two years rigorous imprisonment under Section 324/34 I.P.C. Both the appellants shall file two bonds to the tune of Rs. 20,000/- each coupled with personal bonds stating that he shall keep with personal bonds stating that he shall keep peace and not commit any offence during the period of one year. In case there is breach of any of the aforesaid conditions, they will subject themself to undergo the sentences before the trial court as per law. The bonds aforesaid be filed by the appellants within two months from the date of this Judgement. 18. Let a copy of this Judgement be sent to the court concerned for compliance.