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2019 DIGILAW 1339 (ALL)

Raju v. State of U. P.

2019-05-15

AJIT SINGH

body2019
JUDGMENT : AJIT SINGH, J. 1. This criminal appeal has been filed against the judgment and order dated 28.1.1988 passed by IXth Additional Sessions Judge, Bulandshahar in S.T. No. 482 of 1985, convicting and sentencing the appellants under sections 325/34 I.P.C. to undergo Rigorous Imprisonment for the period of three years. 2. The brief facts leading to this appeal are that an FIR was lodged at police station-Khurja City on 20.7.1985 at about 7.30 a.m. by Ganga Prasad son of Chunrii Lal, resident of Bagh Rishalda, which was registered as non-cognizable case. It was alleged in the FIR that today, in the morning at about 7.00 a.m. when he was sitting on his Chabutara, the accused who were Gangsters and were having enmity with him were going by the side of his Chabutara singing indecent songs. When he told them not to sing indecent songs, the accused persons started assaulting him with lathi, kicks and fists. They also abused him and threatened him with dire consequences. He further stated that he apprehends danger to his life at the hands of the accused persons. This incident was allegedly witnessed by Ravi Shankar and Harkesh. The FIR was registered under sections 323, 504 and 506 I.P.C. Later on informant was taken to the hospital at Khurja and considering his condition to be serious he was referred to Delhi and on 20.7.1985 the complainant Ganga Prasad was taken to Jai Prakash Narain Hospital where he succumbed to injuries at about 10.00 p.m. on 29.7.1985. After the death of the deceased Ganga Prasad an application was submitted by Ravi Shankar, son of the deceased at police station regarding the death of his father, alleging therein that his father has succumbed to injuries inflicted by the accused Raju @ Raj Kumar and Kalwa on 20.7.1985 at about 7.00 a.m. On this information section 304 I.P.C. was also added. 3. After completion of investigation, the Investigating Officer has submitted charge-sheet against the accused persons and cognizance was taken by the Magistrate. The case was committed to the Court of Session. 4. In order to prove its case the prosecution has examined three witnesses. Ravi Shankar PW-1, Smt. Sapna alias Guddi PW-2 and Jagdish PW-3. PW-3 Jagdish has not supported the prosecution case and has been declared hostile. The case was committed to the Court of Session. 4. In order to prove its case the prosecution has examined three witnesses. Ravi Shankar PW-1, Smt. Sapna alias Guddi PW-2 and Jagdish PW-3. PW-3 Jagdish has not supported the prosecution case and has been declared hostile. During trial several formal witnesses were also examined and the prosecution witnesses proved the documents of the prosecution like injury report, postmortem report, inquest report and copy of G.D. 5. After the prosecution evidence the statements of the accused under section 313 Cr.P.C. were recorded and they denied the prosecution evidence and submitted that a false FIR was lodged against them and wrong charge-sheet was also submitted against them and witnesses had given false statements against them. 6. Accused Kaluwa has stated in his statement that the mother of Ravi Shankar is Nanno who is his real sister and litigation is pending between them. He has been falsely implicated in the present case due to enmity. The accused persons have also filed certain documents in their defence. 7. After hearing the arguments advanced by learned Counsel for the appellants and learned Counsel for the complainant, the Trial Court convicted and sentenced the accused as aforesaid. Aggrieved by the impugned judgment, this criminal appeal has been filed. 8. Learned Counsel for the appellant submitted that the appellant No. 2, Kalwa has died during the pendency of the appeal in the year 1992 and in this regard the Chief Judicial Magistrate, Bulandshahar has submitted a report, mentioning therein that appellant No. 2, Kalwa had died in the year 1992. 9. Considering the report of the CJM, Bulandshahar and considering the Circular issued by this Court from time to time, the appeal qua appellant No. 2, Kalwa stands abated. 10. The appeal is heard on behalf of appellant No. 1, Raju @ Raj Kumar. 11. Learned-Counsel for the appellant submitted that at the time of incident the accused Raju @ Raj Kumar was minor. The incident has taken place in the year 1985 and the present appellant was convicted after more than 3 years in 1988. He next submitted that the present accused was not having any criminal history at the time of conviction and after conviction there was also no criminal history against him. The incident has taken place in the year 1985 and the present appellant was convicted after more than 3 years in 1988. He next submitted that the present accused was not having any criminal history at the time of conviction and after conviction there was also no criminal history against him. He further submitted that he does not want to press this appeal on merits and he seeks that lenient view be taken against the present appellant because the incident had taken place in the year 1985 and the present accused Raju @ Raj Kumar was minor at the time of incident and other co-accused Kalwa has died way back in the year 1992 and it will not be proper to send the present accused after more than 30 years to serve the sentence in prison. It was the first offence committed by the appellant and he be given probation under United Provinces First Offenders Act, 1938. 12. Learned A.G.A. has vehemently opposed the appeal. 13. After considering the rival submissions, considering the facts and circumstances of the case as well as considering that it was the first offence of the present accused Raju @ Raj Kumar and at the time of occurrence he was allegedly minor and after considering the provisions of The United Provinces First Offenders Probation Act, 1938 and after perusing the impugned judgment, it transpires that the learned Trial Court had not considered the applicability of The United Provinces First Offenders Probation Act, 1938 and has not taken into account the age, character and antecedent of the accused and has not considered the physical and mental condition of the accused at the time of passing the impugned judgment. Section 4 of the United Provinces First Offenders Probation Act, 1938 is applicable in the State of U.P. which provides as under: “4. Section 4 of the United Provinces First Offenders Probation Act, 1938 is applicable in the State of U.P. which provides as under: “4. Power of Court to release certain offenders on probation of good conduct - (1) When any person is convicted of an offence not punishable with death or transportation 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, antecedents or physical or mental condition 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 behavior: Provided that the Court shall not direct the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and 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: Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the [State Government] which is punishable with imprisonment not exceeding six months, the Court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so. (2) Where the offender ordered to be released under sub-section (1) is under twenty-four years of age, the Court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order: Provided that the period so specified shall not extend beyond the date on which, in the opinion of the Court, the offender will attain the age of twenty-five years. (3) A Court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the condition with respect to residence, abstention from intoxicants and any other matters as the Court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (4) A Court making an order under sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.” 14. After considering the provision of section 4 of the aforementioned act and considering the mandate of section 360 and 361 of Cr.P.C. which indicates that in any case where the Court could have dealt with an accused under section 360 of the Code and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Trial Court overlooked the provisions of sections 360 and 361 of the Code of Criminal Procedure and it was mandatory duty cast on the Trial Court which ought to have been performed. 15. Looking to the facts and circumstances of the present case, this Court see no reasons not to apply the provisions of section 360 of the Code of Criminal Procedure. 16. Accordingly, this Court while maintaining the conviction of the appellant, direct that he will be dealt with under section 4 of the United Provinces First Offenders Probation Act, 1938 and direct that the appellant be released on probation of good conduct instead of sentencing him and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Bulandshahar within one month after receiving certified copy of this order. 17. The appeal is accordingly disposed of.