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2016 DIGILAW 3258 (ALL)

SHIV MOHAN TIWARI v. STATE OF U. P.

2016-09-23

RANJANA PANDYA

body2016
JUDGMENT Hon’ble Mrs. Ranjana Pandya, J.—Challenge in this appeal is to the judgement and order dated 30.10.1998 passed by IInd Additional District Judge/Special Judge, Hardoi in Special Criminal Appeal No. 263 of 1992 (State v. Shiv Mohan Tiwari) arising out of Crime No. 208/1991, under Sections 352, 504, 506 I.P.C. and Section 3(1)(x) SC/ST Act, Police Station-Kachhauna, District-Hardoi, whereby the accused-appellant was found guilty and convicted one month’s rigorous imprisonment under Section 352 I.P.C., one year’s rigorous imprisonment under Section 504 I.P.C., one year’s rigorous imprisonment under Section 506 I.P.C. and one years’ rigorous imprisonment and Rs. 500/- fine under Section 3(1)(x) SC/ST Act with default stipulation. 2. Filtering out unnecessary details the prosecution case in brief is that an oral report was lodged by informant at the police station stating that the informant had got a lease executed in his favour, in which he had sown paddy. The accused-appellant Shiv Mohan wanted to trespass on this land for which the son of the informant had given an application at the police station. 3. On 6.11.1991 at 12 O’clock in the day time, when the informant was working in his field, the accused came to his field, he abused him, threatened to kill him and ran to beat the informant with a Lathi. He was saved by Gajju and Balak, at which accused-appellant fled away threatening to kill the informant. The informant has danger to his life and life of his family members. Thus, oral report was lodged, which ended into charge-sheet. 4. The prosecution proceeded to examine five witnesses. P.W. 1 is Indal, who is informant in this case, who has proved oral report as Exhibit Ka-1. P.W. 2 is head Constable Amar Singh, who scribed the oral report of of the informant and proved the same. He further proved copy of the G.D. as Exhibit Ka-2. P.W. 3 is S.I. Indraj, who is investigating officer in this case. He copied the chik and G.D. in the C.D. Further he recorded the statement of the informant. On 7.11.1991 he inspected the spot at the instance of the informant and prepared the site plan, which was proved by him as Exhibit Ka-3. After that he recorded the statement of Gajju and Balak and other witnesses and submitted the charge-sheet against the accused, which was proved by this witness as Exhibit Ka-4. On 7.11.1991 he inspected the spot at the instance of the informant and prepared the site plan, which was proved by him as Exhibit Ka-3. After that he recorded the statement of Gajju and Balak and other witnesses and submitted the charge-sheet against the accused, which was proved by this witness as Exhibit Ka-4. P.W. 4 is Gajju, who is said to be witness of fact and P.W. 5 is Balak, who is also said to be witness of fact. 5. After hearing the learned counsel for the parties, the learned lower Court convicted and sentenced the accused as stated in para 1 of the judgement. 6. Feeling aggrieved, the accused has come up in appeal. 7. Heard Shri R.P. Shukla, learned counsel for the appellant and learned Government Advocate for the State and perused the lower Court record. 8. Learned counsel for the appellant has submitted that the judgement of the lower Court is bad in the eyes of law, because the learned lower Court has based its judgment on an inadmissible evidence. 9. On the other hand learned A.G.A. has submitted that the findings of the fact recorded by the trial Court is based on evidence available on record, hence appeal is liable to be dismissed. 10. As far as the evidence of the independent witnesses Gajju, P.W. 4 and Balak P.W. 5 is concerned both the witnesses have denied of having seen any incident. They have denied their presence also at the place of occurrence. Both these witnesses were declared hostile by the prosecution, who cross-examined these witnesses. I am aware that even the evidence of hostile witnesses can be relied upon, but there is nothing in the evidence of P.W. 4 Gajju and P.W. 5 Balak, which could help the prosecution in any way whatsoever. 11. Now the Court was left with the sole testimony of P.W. 1 Indal. As far as convictino under Section 3(1)(x) SC/ST Act is concerned 3(1)(x) reads as follows : “3. Punishments for offences of atrocities—(1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe— (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;” 12. I have perused the the F.I.R. There is not a whisper in the F.I.R. that the accused addressed the informant with any caste related words. I have perused the the F.I.R. There is not a whisper in the F.I.R. that the accused addressed the informant with any caste related words. For the first time in the statement before the Court, the informant said that the accused stated as follows: ^^rc eqfYte us eq>s iklh lkys tku ls ekj Mkysaxs /kedh nhA** 13. Learned counsel for the appellant has placed reliance upon the case of Gorige Pentaiah v. State of Andhra Pradesh and others, (2009) 1 SCC (Cri) 446, in which it has been laid down that : “According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.” In the same context learned counsel for the appellant has placed reliance upon Pappu Singh v. State of Uttar Pradesh, 2002 Crl J 1251, in which it has been held that : “Moreover this witness has stated that the applicant had not used ugly words relating to the caste of the complainant. In this way there was no evidence on record to make out offence punishable under Section 3(1)(X) of the Act against the applicant and the finding recorded by the learned Special Judge was without evidence and was thus perverse. A perverse finding of fact can be interfered with in the revision. As such there was no justification in convicting and sentencing the applicant under Section 3(1)(X) of the Act. Thus, the revision succeeds.” 14. A perverse finding of fact can be interfered with in the revision. As such there was no justification in convicting and sentencing the applicant under Section 3(1)(X) of the Act. Thus, the revision succeeds.” 14. The provision of Section 3(1)(x) of the SC/ST Act and legal position, as noted above, provides that a person can be punished under this provision only when he commits such offence against person of scheduled-caste/scheduled-tribe community on the ground that such a person/victim is a member of SC/ST community. From the evidence in the present case, it appears that alleged act had allegedly been committed by accused-appellant only because of already existing enmity and dispute of crop. It was not the prosecution case that offence was committed for the reason that victim/complainant belonged to the scheduled-caste community. At least there is no evidence in this regard. Therefore even if prosecution case is accepted to be true in toto, in such matters accused cannot be punished for offence punishable under Section 3(1)(x) of SC/ST Act. 15. Thus, the trial Court has committed grave illegality in convicting the accused under Section 3(1)(x) SC/ST Act, since there was absolutely no evidence on record to prove the charge under Section 3(1)(x) SC/ST Act against the accused. 16. As far as Sections 352, 504 and 506 I.P.C. are concerned, learned counsel for the appellant has submitted that there are sufficient grounds to grant the benefit of Sections 3 and 4 of the Probation of Offenders Act, 1958 to the appellant. 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. 17. 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. 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 Section 360 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. 18. 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. 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. 19. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Section 360, 361 of the Code in that area. 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. 19. 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.” 20. Thus, this was the bounden duty of the learned trial and also the appellate Court to consider why they did not proceed to grant the benefit of Probation of Offenders Act. Section 4 of the Probation of Offenders Act reads as follows: “4. Thus, this was the bounden duty of the learned trial and also the appellate Court to consider why they did not proceed to grant the benefit of Probation of Offenders Act. 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.” 21. 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. 22. The occurrence relates to the year 1991. Presently as per the statement of the appellant he is above 60 years of age. Sending the accused-appellant to jail would serve no useful purpose. 22. The occurrence relates to the year 1991. Presently as per the statement of the appellant he is above 60 years of age. Sending the accused-appellant to jail would serve no useful purpose. Thus, I think It will be proper to grant the benefit of Section 4 of the Probation of Offenders Act to the appellant. Consequently, the appeal is partly allowed with the following modifications : (a) The conviction and sentence of the appellant under Sections 352, 504 and 506 I.P.C. is hereby confirmed. (b) The conviction of the appellant under Section 3(1(x) SC/ST Act is hereby set aside, however the conviction of the appellant under Sections 352, 504 and 506 I.P.C. is upheld. (c) Instead of sending the appellant to jail, the appellant shall get the benefit of Section 4 of the Probation of Offenders Act 1958. The appellant shall file two bonds to the tune of Rs. 20,000/- coupled with personal bond to the effect that he 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 he will subject himself to undergo sentence as indicated above. The bonds aforesaid be filed by the accused-appellant within two months from the date of judgement. The time for filing of bonds shall not be extended on any ground whatsoever. 23. Let certified copy of this order be sent to the Court concerned for compliance.