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Allahabad High Court · body

2016 DIGILAW 3212 (ALL)

Nazar Mohd. v. State of U. P.

2016-09-20

RANJANA PANDYA

body2016
JUDGMENT Ranjana Pandya, J. 1. Challenge in this appeal is to the judgment and order dated 14.02.1996, passed by Sessions Judge, Gonda, in Sessions Trial No. 372 of 1993 (State v. Nazar Mohammad and others), under Sections 304/34, 325/34 and 323/34 I.P.C., Police Station Intiathok, District Gonda, whereby the accused appellants were found guilty under Sections 325/34 and 323/34 I.P.C. and sentenced to under go 5 years rigorous imprisonment under Section 325 /34 I.P.C. and 6 months rigorous imprisonment under Section 323 /34 I.P.C. 2. Filtering out unnecessary details, the prosecution case in brief is that on 17.06.1991 at about 07: 30 P.M. in Kasba Intiathok, Police Station Intiathok, District Gonda, the accused appellants Nazar Mohammad, Jaheer and Waseer, the neighbours of the informant started diverting the flow of rainy water at a place a little ahead of the door of the house of the informant towards the informant's house. This was objected by the husband of the informant namely Sirtaj. At this, the accused persons started beating Sirtaj, Shahaban, the son of the informant and Km. Inna, the daughter of the informant with lathi and bricks. On account of which, Km. Inna fell down unconscious. On hue and cry being raised, the neighbours came at the place of occurrence but intervened at which the accused fled away. Km. Inna died at the District Hospital, Gonda on 18.06.1991 at about 06: 35 A.M., hence, the written first information report was lodged by the informant, on the basis of which investigation commenced. 3. On the basis of the written report, chik was scribed by PW-8 Constable Ganga Sagar who proved the chik report as Exhibit Ka-8 and copy of G.D. As Exhibit Ka-9. Dr. B.K. Singh PW-7 has examined the injuries of the injured Shahaban Ali and found the following injuries on his person and proved it as Exhibit Ka-7 "1. Abrasion on right side of the forehead about 4cm. Above right eye brow with size 2 cm. X 1 cm. 2. Abrasion on inner and outer part of left fore arm with size 1 cm. X 0.5 cm." 4. Dr. Alok Kumar PW-4 has medically examined the injuries of Shahazad Ali and found the following injuries on his person and proved in as Exhibit Ka-2 "1. Contusion 4 cm. X 2 cm. On left shoulder, like oval shaped. 2. Contused swelling, left forearm, 14 cm. X 6 cm. 3. X 0.5 cm." 4. Dr. Alok Kumar PW-4 has medically examined the injuries of Shahazad Ali and found the following injuries on his person and proved in as Exhibit Ka-2 "1. Contusion 4 cm. X 2 cm. On left shoulder, like oval shaped. 2. Contused swelling, left forearm, 14 cm. X 6 cm. 3. Contusion 6 cm. X 2 cm. On left hip. 4. Contusion 6 cm. X 2 cm. On the back of dhest on left side 2 cm. Below left scapula. 5. Contused swelling 4 cm. X 4 cm. On the top of scalp." 5. PW-5 is Dr. Satish Kumar who conducted the autopsy on the body of the deceased and found the following ante-mortem injuries "1. Contused swelling 12 cm. X 6 cm. On left side of head, 5 cm. Above left eyebrow. 2. contused swelling 4 cm. X 3 cm. On the forehead, 2 cm. Above right eyebrow. 3. Abrasion 1 cm. X 1/2 cm. on the other side of right elbow. 4. Abrasion 1 1/2 cm. X 1/2 cm. on right knee." 6. On internal examination, the brain was found congested and death was due to coma as a result of ante-mortem injury. This witness proved the postmortem report as Exhibit Ka-3. 7. PW-9 is the I.O. Ram Adhar Mishra who conducted the investigation. He recorded the statements of the witnesses, prepared the site plan which was proved as Exhibit Ka-11. The investigation ended into a charge sheet which was proved by this witness as Exhibit Ka-12. Further the witness proved the Salwar, Samiz and underwear of the deceased a material exhibit 1 to 3. Besides, these witnesses, the prosecution also proceeded to examine PW-1 Smt. Nazira, the informant who proved the written report as Exhibit Ka-1. PW-2 is Sirtaj, the husband of the informant, he is also said to be an eye witness of the incident. PW-3 is Shahaban Ali who was an injured and also an eye witness. PW-6 is Dr. G.K. Singh who examined the injuries of Km. Inna and found the following injuries on her body and proved the injury report as Exhibit Ka-4 which is as follows "1. Contusion 5 cm. X 2.5 cm., right side forehead, 2 cm. above left eyebrow. The injury was kept under observation and X-ray was advised. 2. Abraded contusion 2 cm. X 0.5 cm. on left side head, 6 cm. above left eyebrow. 3. Contusion 5 cm. X 2.5 cm., right side forehead, 2 cm. above left eyebrow. The injury was kept under observation and X-ray was advised. 2. Abraded contusion 2 cm. X 0.5 cm. on left side head, 6 cm. above left eyebrow. 3. Contusion 6 cm. X 2 cm. on the right side back, outer angle of right scapula." 8. He further examined the injuries of Sirtaj on whose body the following injuries were found and proved the injury report as Exhibit Ka-6 "1. Lacerated wound 0.5 cm. X 0.5 cm. on bridge of nose. 2. Traumatic swelling 5 cm. X 3 cm. on the right side of nose, clotted blood in left nostril. 3. abraded contusion 6 cm. X 2 cm. on the left side face, 2 cm. below lateral angle of left eye. 4. Traumatic swelling 10 cm. X all around on left forearm just below elbow joint. The injury was kept under observation and X-ray was advised. 5. Contusion 5 cm. X 2 cm. on the top of the left shoulder." 9. After close of the prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. Who denied the occurrence and said that they had been falsely implicated after consultation. However, no defence evidence was adduced. 10. After perusal of all the evidence available on record and hearing the counsel for the parties, the learned trial court has passed the impugned judgment as specified in para one of the judgment. 11. Feeling aggrieved, the accused persons have come up in this present appeal. 12. I have heard Sri S.K. Tewari, learned counsel for the appellants, learned A.G.A. and perused the material available on record. 13. The accused appellant Nazar Mohammad has died during trial, hence, the present appeal as against appellant Nazar Mohammad is abated. 14. Counsel for the appellants has submitted that there is no appeal for enhancement of sentence and the State has not filed any other appeal in the present matter. The conviction of the appellants is only under Sections 325/34 and 323/34 I.P.C. The Punishment imposed on the appellants is too harsh and severe. The trial court has not assigned any reason for not granting probation to the appellants. 15. The conviction of the appellants is only under Sections 325/34 and 323/34 I.P.C. The Punishment imposed on the appellants is too harsh and severe. The trial court has not assigned any reason for not granting probation to the appellants. 15. Learned counsel for the appellants has further argued that the effect of Sections 3 and 4 of the Probation of Offenders Act, 1958, in the background of what is stated in Section 360 of the Code of Criminal Procedure, 1973, has not been kept in view. Thus, the residual question is applicability of Sections 3 and 4 of the Probation of Offenders Act, 1958 and Section 360 of the Code of Criminal Procedure. 16. Where the provisions of Probation of Offenders Act are applicable, the employment of Section 360 of the Code is not to be made. 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 Criminal of Procedure wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code of Criminal Procedure to apply one of the other beneficial provisions; be it 360 of the Code of Criminal Procedure 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 elevation of the provisions of the Probation of Offenders Act are further noticed in sub section (10) of Section360 of the Code of Criminal Procedure which makes it clear that nothing in the said Section shall affect the provisions of the Probation of Offenders Act. Those provisions have a paramountacy of their own in the respective areas where they are applicable. 17. 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. 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. 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. 18. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 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. 18. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 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 section420 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." 19. Thus, this was the bounden duty of the learned trial court and also the appellate court to consider why they did not proceed to grant the benefit of Probation of Offenders Act. Section 4of the Probation of Offenders Act reads as follows: "4. Thus, this was the bounden duty of the learned trial court and also the appellate court to consider why they did not proceed to grant the benefit of Probation of Offenders Act. Section 4of 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." 20. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice should meet the challenges confronting the society. Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. As justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong. 21. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. 21. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. 22. The occurrence relates to the year 1991 and the present appeal is pending since year 1996. But, before concluding a discussion on the point why the benefit of Section 3 and 4 of the Probation of Offenders Act or Section 360 was not given to the accused, has to be looked into. 23. The learned trial judge did not even bother to discuss why it was a case in which the aforesaid benefit could not be extended to the accused persons. 24. Thus, as already said, I feel that the occurrence relates to the year 1991 and this appeal is pending since 1996, I concluded that the conviction should be maintained but the sentence should be modified. 25. The appeal is partly allowed with the following modifications. 26. The conviction of the appellants is upheld. 27. Instead of sending the appellants Zaheer and Waseer to jail, the appellants shall get the benefit of Section 4 of the Probation of Offenders Act. Therefore, instead of sentencing them to under go 5 years rigorous imprisonment under Section 325 /34 I.P.C. and 6 months rigorous imprisonment under Section 323 /34 I.P.C., they shall file two bonds to the tune of Rs. 25,000/- coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the Magistrate as per Rules. The bonds aforesaid be filed by the accused persons within two months from the date of the Judgment. 28. Let a certified copy of this order be sent to the court concerned for compliance.