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2018 DIGILAW 1508 (ALL)

Jagdeo v. State of U. P.

2018-07-07

SIDDHARTH

body2018
JUDGMENT & ORDER : Siddharth, J. This Criminal Revision has been preferred by four accused persons against the judgment and order dated 14.9.1999 passed by IIIrd Additional Sessions Judge, Fatehpur in Criminal Appeal No. 11 of 1996 affirming the judgment and order dated 02.3.1996 passed by IInd Additional C.J.M., Fatehpur in Case No. 479 of 1992 convicting the revisionists under Section 323, I.P.C. and sentencing them six months rigorous imprisonment and convicting them under Section 325/34, I.P.C. and sentencing them to three years of Rigorous Imprisonment and a fine of Rs. 500/- each and default payment of fine to undergo three months of rigorous imprisonment, directing sentence to run concurrently. 2. Heard Sri. Sushil Kumar Dwivedi, learned counsel for the revisionists and Sri. S.H. Sachan, learned A.G.A. appearing on behalf of the State. 3. As per the report dated 23.5.2017 of the Chief Judicial Magistrate, Fatehpur, the revisionist Nos. 1, 2 and 4, namely, Jagdeo s/o of Bhola Yadav, Anant Sahai s/o Bhola Yadav and Hira Lal Yadav s/o Mahadeo have already died and death verification report dated 15.4.2017 has been sent to this Court and it is taken on record. This criminal revision remains in respect of the revisionist No. 3, Bhanu Pratap and learned counsel has pressed it on his behalf only. 4. The prosecution case is that on 29.4. 1992 at about 2.30 p.m. the accused persons were taking their bullock cart in front of the house of informant Charan Singh and they dashed their bullock cart against the Charahi of informant and on the objection of informant, they started abusing him and they went to their house and came back with lathi, danda, and farsa and caused injury to the informant. On alarm being raised by the informant, his brother Shyam Singh and father Ram Sahai came to save him, but all the four accused assaulted them also. Hearing noise, Ram Singh, Ram Kripal and other villagers came on the spot and saw the incident and in the incident, three persons suffered simple and serious injuries. On the same day, the three injured went to the police station and lodged the First Information Report at about 4 p.m. under Sections 323, 504, 426, I.P.C., but could not be medically examined. On 30.4.1992 from 11 a.m. to 11.40 a.m., their medical examination was done and simple and serious injuries were found on their bodies. On the same day, the three injured went to the police station and lodged the First Information Report at about 4 p.m. under Sections 323, 504, 426, I.P.C., but could not be medically examined. On 30.4.1992 from 11 a.m. to 11.40 a.m., their medical examination was done and simple and serious injuries were found on their bodies. On the basis of their x-ray report, cognizable offence under Sections 323, 324, 325, 426, I.P.C. was registered. Investing Officer recorded the statement of witnesses and completed other formalities and submitted charge sheet before the trial court. Accuseds denied the charges and were subjected to trial. The learned trial court considered the statement of witnesses and the evidence on record and on the basis of injuries suffered by the injured did not found any charge under Section 504, I.P.C. and sentenced and convicted them under Sections 323, 325/34, I.P.C. 5. The revisionists preferred a criminal appeal No. 11 of 1996 before the appellate court on the ground that they should be released under Section 4 of Probation of Offenders Act, 1958 since there is first implication of the accused and they will not commit any further crime in future. Lower appellate court came to the conclusion that release of the accused under Section 4 of Probation of Offenders Act, 1958 would not be in the interest of public peace and order and wrong message will go to the public that the court is not dealing sternly with criminals. 6. Learned counsel for the revisionist has submitted that there is general allegation of causing injuries to the injured and all the accused persons were assigned general role in the alleged incident. Three of the accused have already died and only revisionist No. 3, Bhanu Pratap remains. It is not clear who caused injuries by which weapon to which injured and there is no specific finding against the revisionist No. 3 in this regard recorded by the trial court and therefore, he may be given benefit of Section 4 of Probation of Offenders Act, 1958 and the mandatory provision of Sections 360 and 361, Cr.P.C., which read as under :- Section 360 in The Code of Criminal Procedure, 1973 360. Order to release on probation of good conduct or after admonition. Order to release on probation of good conduct or after admonition. (1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is, convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub- section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders. Section 361 in The Code of Criminal Procedure, 1973 361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or (b) a youthful offender under the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so. 7. The language employed in Section 360, Cr.P.C. shows that stress is upon making an attempt at inflicting convict. To make it obligatory on the part of the Court to deal with the cases under Section 360, Cr.P.C. it has been clearly mentioned in Section 361, Cr.P.C. if a case is not dealt with under Section 360, Cr.P.C. the Court has to record special reasons for not doing so in its judgment. In the instant case there is no earlier offence alleged or reported against the revisionist No. 3. 8. Learned AGA could also not bring to the notice of the Court any other depravity in the character of the revisionist No. 3 which may show them to be an incorrigible nature which is required for declining the benefit of probation to these convicts. 9. 8. Learned AGA could also not bring to the notice of the Court any other depravity in the character of the revisionist No. 3 which may show them to be an incorrigible nature which is required for declining the benefit of probation to these convicts. 9. In these circumstances considering the age, character and antecedents of the accused revisionist No. 3 the interest of justice would be served if he is extended the benefit of Section 360, Cr.P.C. 10. The criminal revision of the revisionist No. 3 is partly allowed. 11. The conviction of the revisionist No. 3 under Sections 323 and 325/34, I.P.C. is confirmed. Instead of immediately sentencing the revisionist to undergo imprisonment he is directed to be released on probation of good conduct on executing personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned for a period of six months to keep peace and be of good behaviour. The bonds be filed within six weeks from the date of judgment. In case of breach to appear and receive the sentence when called upon during the above period of keeping peace and good behaviour and in default to execute the bonds, as above, within the stipulated time, the revisionist No. 3 would serve out the sentence under Sections 323 and 325/34, IPC as imposed by the Court below. Let a copy of this judgment be sent immediately to the Court concerned along with Lower Court record for ensuring necessary compliance which should be reported to the Court within eight weeks. Order accordingly.