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2019 DIGILAW 399 (UTT)

Sarwan Singh v. State Of Uttarakhand

2019-07-15

R.C.KHULBE

body2019
JUDGMENT : R.C. Khulbe, J. This appeal, preferred by the appellants u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 22.05.2009 passed by learned Additional Sessions Judge, Kashipur in Sessions Trial No.123 of 2005, State v. Sarwan Singh another, whereby the Court below convicted both the appellants under Section 324 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced each of them to undergo one year's R.I. with fine of Rs.1,000/- each with default stipulation. However, the appellants were acquitted for the offences u/s 307, 504 and 506 IPC. 2. Facts, in nutshell, are that PW1 Gurminder Singh lodged an FIR on 22.6.2004 with the averments that water motor of appellant-Surendra Singh was repaired by Ranjeet Singh, son of informant. On 22.6.2004 at 8 AM, appellant Surendra Singh took away his son saying that the motor is not working. When the son of informant said that the bush of motor had been damaged, appellant Surendra Singh started to beat his son and also hit a hammer which hit on the shoulder of his son, after which his son returned home. Then the complainant along with other persons went to the appellant Sarwan Singh to complaint the act done by his son Surendra Singh, but he (Sarwan Singh) also became enraged, hurled filthy abuses and exhorted his son Surendra to take out a gun and to kill them. On this exhortation, Surendra Singh ran inside, took out a gun and shot a fire on Ranjeet which hit on his right leg. Surendra shot another fire but it was missed. The informant with his son and companions somehow managed to escape. With these averments, the FIR was lodged. 3. Injured Ranjeet Singh was medically examined by PW5 Dr. M.S. Bohra who recorded as many as 2 injuries on the person of injured. 4. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan; recovered the rifle of 315 bore used in the crime as well as one empty cartridge; also recovered the clothes of injured; and after completion of investigation, submitted the charge-sheet against the appellants u/s 307, 324, 504 and 506 IPC. The recovered rifle along with empty cartridges was also sent for the forensic examination. The report of the Laboratory is Ex.Ka-7. 5. The recovered rifle along with empty cartridges was also sent for the forensic examination. The report of the Laboratory is Ex.Ka-7. 5. The case was, accordingly, committed the case to the court of Sessions after complying with the provisions of Section 207 Cr.P.C. 6. Learned Additional Sessions Judge/FTC, Kashipur, Udham Singh Nagar framed the Charge against the appellants u/s 307, 324, 504 and 506 IPC. The charge was read over and explained to the appellants who pleaded not guilty and claimed to be tried. 7. To prove its case, the prosecution has examined P.W.1 Gurminder Singh (complainant), PW2 Ranjeet Singh (injured), PW3 Gurmeet Singh (eyewitness), PW4 S.I. Bhudev Singh, I.O. of case, PW5 Dr. M.S. Bora, who examined the injured and PW6 Constable Surendra Singh. 8. Thereafter, the statements of the appellants were recorded u/s 313 of Cr.P.C. who denied the allegations made against them. However, they did not produce any oral or documentary evidence in defence. 9. After appreciating the evidence on record and hearing learned counsel for the parties, learned Additional Sessions Judge, Kashipur (Udham Singh Nagar), vide the judgment, under challenge, has convicted and sentenced the appellants, as afore-stated. Feeling aggrieved, the present appeal has been filed. 10. Heard learned Counsel for the parties and perused the entire evidence available on the record. 11. Mr. Lalit Sharma, learned Counsel appearing for the appellant fairly submits that the conviction of the appellants, as recorded by the Court below under Section 324 IPC is perfectly justified as per the evidence recorded before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellants may be extended the benefit of being the first-offenders and they may be released on probation by giving them the benefit of the Probation of Offenders Act, 1958. 12. Mr. A.K. Sah, learned A.G.A appearing for the State, admits that he has not received any report about the criminal antecedents of the appellants, and admitted that the appellants are the first-time offenders. 13. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola, 2001 SCC(Cri) 2 897", in paragraph no.7, has held as under: "7. 13. In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola, 2001 SCC(Cri) 2 897", in paragraph no.7, has held as under: "7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act." 14. Section 4 of the Probation of Offenders Act, 1958 read as under: "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 5 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. 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 subsection (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." 15. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that 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. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year. 16. A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court. 17. In the present case the appellants are the first-time offenders. The incident seems to have taken place 15 years ago, that too, by chance and all of a sudden, and it also appears that the accused had not planned to assault the victim. Moreover, the appellant no.1 Sarwan Singh is now about 76 years of age while the appellant no.2 Surendra Singh is 43 years of age. 18. Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the appellants to jail to serve out the remaining sentence. Rather, in the opinion of the Court, they should be released on probation in order to reform themselves. 19. The present appeal, thus, stands disposed of. The conviction part of the appellants u/s 324 IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellants Sarwan Singh and Surendra Singh shall be released on probation for a period of two years on furnishing a personal bond to the satisfaction of the concerned Trial Court with one surety each. The Judge concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. The Judge concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. It goes without saying that if accused/ appellants fail to observe good conduct and behaviour during probation or are found violating any condition, to be imposed, the Court concerned shall be at liberty to cancel the bond calling the accused-appellants to serve out the remaining sentence. Both the appellants shall appear before the Trial Court on 05.08.2019 for compliance. 20. Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.