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2021 DIGILAW 773 (ALL)

Jameel v. State of U. P.

2021-08-03

SURESH KUMAR GUPTA

body2021
JUDGMENT : 1. The present appeal has been preferred against the judgment and order dated 21.01.2000 passed by 1st A.S.J., Lucknow in S.T. No.324 of 1995 whereby the appellant has been convicted and sentenced under Sections 452 and 354 IPC for three months rigorous imprisonment respectively. 2. Brief facts of the case are that the case emerged from the F.I.R. lodged by PW-1 Saiyra Bano stating that Mohd. Khalil, husband of first informant along with Smt. Saiyra Bano, PW-1 was present at his house situated in Village Khojey Kapurwa, P.S. Gudamba on 12.09.1993 in the morning, when the accused-appellant, Jameel of the same village armed with country made pistol entered into the house and started to quarrel with the husband of the first informant. When PW-1 objected to it and hearing noise, other members of the family rushed to the spot whereupon the accused fled away. PW-4, Mohd. Khalil made a complaint of this case against the appellant, Jameel and thereafter he went to work somewhere. It is the appellant who after sometime on the same day came back to the house of PW-1 armed with Banka and wanted to molest and assault the victim to outrage her modesty but she raised alarm, whereupon her nephew, husband and elder brother came on the spot. Seeing them, the accused abducted four months old daughter of Smt. Bano. 3. On this allegation, Smt. Bano lodged a written report as Ex-ka-1 at Police Station-Gudamba, District-Lucknow on 12.09.1993 at 8:15 pm where chik report as Ex-ka-2 was prepared on its basis and the case was registered in G.D. as Ex-ka-3 under Sections 452, 354, 364, 506 IPC as Case Crime No. 259 of 1993. This case entrusted to PW-6, Ram Narain Chaubey who investigated this case and during investigation, he visited place of occurrence and prepared a site plan as Ex-Ka-4. On the same date, he recorded the statement of Smt. Saiyra Bano, Rafiq Mohd., Safiq Mohd., Mohd. Khalil and other witnesses under Section 161 Cr.P.C. and arrested the accused on 14.09.1993 on Kursi Road and recovered from his possession of female child. Thereafter, the investigating officer prepared recovery memo as Ex-Ka-5 and in presence of the witnesses, he also prepared the site plan of the recovery as Ex-Ka-6. Khalil and other witnesses under Section 161 Cr.P.C. and arrested the accused on 14.09.1993 on Kursi Road and recovered from his possession of female child. Thereafter, the investigating officer prepared recovery memo as Ex-Ka-5 and in presence of the witnesses, he also prepared the site plan of the recovery as Ex-Ka-6. The recovery of the female child was handed over in the custody of PW-1 through memo as Ex-Ka-7 and after completing the investigation, the charge-sheet as Ex-Ka-8 was submitted by the Investigating officer under Sections 452, 354, 364, 506 IPC against the accused-appellant. 4. Charge-sheet was submitted before the Magistrate Court and the case was committed to the 1st A.S.J., Lucknow where it is registered as S.T. No.324 of 1995. After committal, the trial court framed charges against the accused-appellant under Sections 452, 354, 364, 506 IPC. The accused-appellant denied the charges levelled against him and claimed to be tried. 5. In order to substantiate its case, the prosecution examined six witnesses namely PW-1, Smt. Saiyra Bano first informant of the alleged incident, PW-2 Rafiq Mohd. who reported himself as eye witness, PW-3 Safiq Mohd. who was also another eye-witness, PW-4 Khalil Mohd. husband of PW-1 was also eye-witness, PW-5 Babulal Maurya, Head Constable who took the chik report as Ex-Ka-2 and PW-6 Ram Narain Chaubey, Investigating Officer. Thus, the prosecution relied on the oral testimony of PW-1 to PW-6 and Ex-Ka-1 to Ex-Ka-7 as documentary evidence. 6. After closing the evidence, statement of the accused under Section 313 Cr.P.C. was recorded by the trail court explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story in toto and the entire prosecution story was said to be wrong and concocted. In answer to the question no.6, he stated that PW-1 Smt. Saiyra Bano was his wife and the female child alleged to have been kidnapped by him was born to Smt. Saiyra Bano with his union. After birth of this baby, Smt. Bano started to live with her former husband and thereafter, there was a dispute between her and him over this baby. He further stated that the female child was living with him and subsequently she died. 7. In his defence, four defence witnesses who were also examined on behalf of the accused-appellant as DW-1 Mohd. Jaleel, DW-2 Munna, DW-3 Idris and DW-4 Shakeel Ahmad. 8. He further stated that the female child was living with him and subsequently she died. 7. In his defence, four defence witnesses who were also examined on behalf of the accused-appellant as DW-1 Mohd. Jaleel, DW-2 Munna, DW-3 Idris and DW-4 Shakeel Ahmad. 8. The trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary found the accused-appellant guilty and convicted and sentenced him as aforesaid. 9. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellant has preferred the present appeal. 10. I have heard learned counsel for both the parties and perused the material available on record. 11. Learned counsel for the accused-appellant assailing the verdict of conviction against the accused-appellant submits that PW-1 Smt. Bano solemnized marriage with the accused-appellant on the date of occurrence and she is legally wedded wife of the accused-appellant but she was wedding with Mohd. Khalil and the daughter was born with the union of the appellant. Learned counsel further submits that learned trial court on the basis of evidence, acquitted the appellant from charge under Sections 364, 506 IPC and as such, the trial court has committed error in holding that the committed hostage and assault on PW-1 Bano to outrage her modesty. 12. During the course of argument, learned AGA states that it is the Court who may consider the benefit of Section 4 of the Probation of Offenders Act, 1958 to the accused-appellant and further submits that this is the first case against the accused-appellant. Previously, he is not convicted for any offence. Learned AGA further states that the benefit of Section 4 of the Probation of Offenders Act, 1958 could be extended to the accused-appellant on certain stipulations as specified in Section 4 of the Probation of Offenders Act, 1958. 13. The relevant provisions of the Probation of Offenders Act, 1958, viz. Section 3 and 4 are extracted hereunder:- 3. Learned AGA further states that the benefit of Section 4 of the Probation of Offenders Act, 1958 could be extended to the accused-appellant on certain stipulations as specified in Section 4 of the Probation of Offenders Act, 1958. 13. The relevant provisions of the Probation of Offenders Act, 1958, viz. Section 3 and 4 are extracted hereunder:- 3. Power of court to release certain offenders after admonition.-"Where 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. 4. 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. 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." 15. Section 4 of the Probation of Offenders Act, 1958 is applicable where a person is found guilty of committing an offence where punishment is neither life sentence nor death. The Court may release such an accused on probation of good conduct on his furnishing a bond as mentioned in the Section. The Court in applying the provisions of this Section is also required to consider the circumstances of the case, character of the offender and nature of the offence before exercising its discretion. 16. A perusal of the aforesaid provisions of the Probation of Offenders Act, 1958 thus clearly indicate that Section 4 of the 1958 Act does not create any distinction between the category of offenders and the provision of the said Section can be made applicable in any case where the offender is found guilty for committing an offence which is not punishable with death or imprisonment for life. Incidentally certain exceptions have been indicated by the Hon'ble Supreme Court as in the case of Smt. Devki Versus State of Harayana reported in 1979, (3) SCC 760 where the Hon'ble Supreme Court has held that benefit of Section 4 of 1958 Act could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Similarly in the case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das Soni the Hon'ble Supreme Court declined to extend the benefit of the Probation of Offenders Act, 1958 to an accused found guilty of gold smuggling. 17. Considering the above submissions advanced on behalf of the appellant, the instant case was registered against the appellant about 28 years back and conviction was awarded on 21.01.2000. The conviction against the appellant neither involved life sentence nor punishable more than seven years imprisonment and it is also submitted that out of 3 months awarded sentence he remain in detention of jail about 12 days. It is also stated that this is the first offence against the appellant. Further submission is that there are several contradictions and exaggeration made in the statement of the witnesses examined before the trial court. It is also submitted that there is no minimum sentence under Section 452, 354 IPC. So in the opinion of this Court, it would be appropriate to grant the benefit of Section 4 of the Probation of Offenders Act, 1958 to the accused-appellant. 18. Consequently, the instant appeal is partly allowed only on point of sentence instead sending him in jail. The accused-appellant shall get the benefit of Section 4 of the Probation of Offenders Act, 1958. 19. The accused-appellant is hereby directed to file a bond to the tune of Rs.20,000/-to the effect that he shall not commit any offence and shall maintain good behaviour and peace. If there is breach of any of the condition, he will undergo sentence as indicated by the trial court. The bond aforesaid be filed by the accused appellant within one month from the date of judgment. Since the appellant is on bail, so he need not surrender. Thus, the appeal is dismissed on point of conviction but partly allowed on point of sentence as aforesaid. 20. The bond aforesaid be filed by the accused appellant within one month from the date of judgment. Since the appellant is on bail, so he need not surrender. Thus, the appeal is dismissed on point of conviction but partly allowed on point of sentence as aforesaid. 20. Office is directed to communicate this order to the learned trial court for necessary compliance. 21. Lower court record, if any, shall also be sent back to the district court concerned.