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2019 DIGILAW 470 (UTT)

RAMESH MISHRA v. STATE OF UTTARAKHAND

2019-08-29

R.C.KHULBE

body2019
JUDGMENT Hon'ble 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 08.10.2009 passed by learned Sessions Judge, Uttarkashi, in Session Trial No.18 of 2007, State vs. Ramesh Mishra, whereby the Court below convicted the appellant/accused Ramesh Mishra under Section 374 of IPC, and sentenced to undergo six months' R.I. under Section 374 IPC along with fine of Rs. 50,000/-. 2. Facts, in nutshell, are that informant Bharat Bahadur, lodged a report at Police Station Chilyanisaur (Thana-Dharashu), on 16.08.2007 at about 7:30 PM with the averments that on the same day at about 8:00 AM, the accused-Ramesh had came in Chilyanisaur market. At that time he along with Bam Bahadur, Raj Bahadur were drinking tea then contractor-Ramesh Mishra came there and told that his house work is going on and some material were required. When they have denied the demand of contractor, the contractor threatened them. On the pressure of contractor they have gone to do the work of contractor-accused. At the time of doing work at about 3:30 on falling the sand dune Bam Bahadur was died and other persons were escaped at the spot. On the basis of that report was lodged by the informant. 3. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan; obtained the permission for prosecuting the appellant; and after completion of investigation, submitted the charge-sheet against the appellant u/s 304 & 374 of IPC. 4. The case was, accordingly, committed to the court of Sessions after complying with the provisions of Section 207 Cr.P.C. 5. Learned Sessions Court, accordingly, framed the Charge against the appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Balam Singh, PW2 Dr. B.S. Bisht, PW3 Bharat Bahadur, PW4 Raj Bahadur, PW5 Constable Kundan Singh, PW6 S.I. Daya Nand Pokhariya and PW7 Pradeep Bisht. 7. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. who denied the allegations made against him. However, he did not produce any documentary evidence in defence. 8. B.S. Bisht, PW3 Bharat Bahadur, PW4 Raj Bahadur, PW5 Constable Kundan Singh, PW6 S.I. Daya Nand Pokhariya and PW7 Pradeep Bisht. 7. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. who denied the allegations made against him. However, he did not produce any documentary evidence in defence. 8. After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed. 9. Heard learned Counsel for the parties and perused the entire evidence available on the record. 10. Mr. Lokendra Dobhal, learned counsel, appearing for the appellant fairly submits that the conviction of the appellant, as recorded by the Court below under Section 374 of 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 appellant may be extended the benefit of being the first-offender, the appellant is only the bread earner of the family and he may be released on probation by giving him the benefit of the Probation of Offenders Act, 1958. It is also argued by learned counsel for the appellant that the appellant is not able to pay the amount of Rs. 50,000/- as a fine may be reduced and the appellant will deposit Rs. 25,000/- within a period of two months. 11. 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 appellant, and admitted that the appellant is the first-time offender. 12. In this regard, the Hon'ble Apex Court in the case of “Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 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. Sanjay Binjola" reported in 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." 13. 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 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." 14. 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. 15. 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. 16. In the present case the appellant is the first-time offender. The incident seems to have taken place 12 years ago, that too, by chance and all of a sudden, and it also appears that the accused had not planned to commit the crime. 17. Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the appellant to jail to serve out the remaining sentence. Rather, in the opinion of the Court, he should be released on probation in order to reform himself. 18. The present appeal, thus, stands partly allowed. The conviction part of the appellant Ramesh Mishra under Sections 374 of IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellant Ramesh Mishra shall be released on probation for a period of one year on furnishing a personal bond to the satisfaction of the concerned Trial Court with one surety. The fine of Rs. 50,000/- be reduced and the appellant will deposit Rs. 25,000/- within a period of two months from the date of receipt of this order, to the court concerned. 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 fine of Rs. 50,000/- be reduced and the appellant will deposit Rs. 25,000/- within a period of two months from the date of receipt of this order, to the court concerned. 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/ appellant fail to observe good conduct and behaviour during probation or is found violating any condition, to be imposed; the Court concerned shall be at liberty to cancel the bond calling the accused-appellant to serve out the remaining sentence. The appellant Ramesh Mishra shall appear before the Trial Court on 26.09.2019 for compliance. 19. Dependents of the deceased Bam Bahadur will receive the said amount Rs. 25,000/- from the concerned court, accordingly. 7 20. Let a copy of this judgment be sent forthwith to the learned Trial Court for information/compliance.