Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2178 (ALL)

Radhey Shyma v. State of U. P.

2023-09-20

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the revisionist and learned A.G.A. for the State and perused the record. 2. Instant Criminal appeal has been preferred against judgment and order dated 03.06.2014 passed by learned Sessions Judge Court No. 8 Barabanki in Criminal Appeal No. 88/20213, whereby the judgment and order dated 23.08.2013 passed by learned trial court convicting the appellants from charge under Sections 323, 504 I.P.C. and releasing them on probation of good conduct has been affirmed. The revisionist has assailed the judgment and orders of both the courts below the Trial Court as well as the appellate court in present Criminal Revision. 3. The factual matrix of the case in brief of that the informant Abdul Majid lodged a non-cognizable report before Police Station Kotwali Nagar, District Barabanki by oral information to the effect that the accused persons Pratap Narayan, Tej Narayan, Radhey Shayam and Pawan Kumar asked to dig the platform (chabutra) of the informant, when he objected the accused persons assaulted him by sticks, his son Mohd. Siraj ran to save him on cries of his father but the accused assaulted him also. The co-villagers rushed to the spot on commotion and saved the informant and his son and they also saw the incident. The police investigated the case by orders of the other court dated 14.06.2002 passed under Section 155 sub-section 2 Cr.P.C. and submitted charge-sheet against named accused persons. The accused Pratap Narayan died during the pendency of the trial and the trial was abated against him. The prosecution examined PW. 1 Abdul Majid (injured), PW. 2 Rajendra and P.W. 3 Mohd. Siraj (injured) for the prosecution evidence to support NCR version in their testimony, and statements of the accused persons were recorded under Section 313 Cr.P.C. they denied the accusation made against them and stated that they were falsely implicated in the case due to enmity of litigation; accused Tej Narayan and Radhey Shyam stated that they are running a shop of cement the informant Abdul Mazid had borrowed cement for constructing his house and when the accused demanded their money the informant side lodged false and concocted case against the accused persons by creating false injuries. Accused Pawan Kumar stated that he has only been implicated in the present case due to reason of being brother of accused Radhey Shyam. 4. Accused Pawan Kumar stated that he has only been implicated in the present case due to reason of being brother of accused Radhey Shyam. 4. Learned Trial Court observed after perusal of evidence on record in the light of accusation made in NCR that incised wound was found on person of injured Abdul Majid, Mohd. Siraj. The allegations in the statements of the witnesses that the accused persons had assaulted the injured with sharp edged weapons is not found trustworthy, the injuries of these injured persons are in the nature of lacerated wound and contusion, which is normally caused by some hard and blunt object like lathi. The witnesses Abdul Majid and Mohd. Siraj have stated that accused Pratap Narayan and Radhey Shyam and Pawan has beaten lathi. It also appears that Pratap Narayan and his two sons had caused the incident and the name Tej Narayan is falsely added in prosecution version. 5. Learned trial court found the injuries of injured Abdul Majid, Mohd Siraj of simple in nature. As per the injury report but observed that the concerned medical officer has not been examined to prove the injury report, thus these injury reports are not admissible in evidence for want of requisite proof. However, even if, the injury reports are not admissible, the charge under Section 323 I.P.C is proved by evidence of PW-1 and PW-3, this is not in every case that injuries of the injured are to be proved by evidence of medical witness in a case under Section 323 I.P.C. which defines simple hurt and this offence can also be proved by evidence of eye witnesses. Learned trial court also observed that Section 504 I.P.C. is also made out against the said accused persons. The learned trial court acquitted the accused Tej Narayan of charge under Section 323, 504 I.P.C. but convicted the accused Radhey Shyam and Pawan Kumar for charge under Section 323,504 I.P.C. However, Trial Court while taking into consideration the nature of offence and fact that the accused persons have not had any criminal history directed to release them on probation of good conduct, instead of sentencing. The accused Radhey Shyam and Pawan Kumar were released on probation of good conduct for one year on personal bond and two surety of Rs. 15,000/-and they are directed to appear before D.P.O. once in three months, during period of probation one year. 6. The accused Radhey Shyam and Pawan Kumar were released on probation of good conduct for one year on personal bond and two surety of Rs. 15,000/-and they are directed to appear before D.P.O. once in three months, during period of probation one year. 6. The accused persons assailed the judgment and order of learned trial court before court of session and the appeal was decided by learned Additional Sessions Judge-12 Barabanki by judgment and order dated 03.06.2014. Learned appellate court observed that no medical examination of the injured was carried out but this fact will not adversely affect the prosecution case, even no adverse inference can be drawn due to fact that P.W. 2 has been declared hostile. 7. The appellate court observed that the contradiction pointed out of by the defence in statements of P.W.1 P.W. 2 and P.W. 3 are of minor nature and no serious contradiction appears in their evidence. Although, the injuries of P.W. 1 and P.W. 3 are not proved by the evidence of medical reports but the injured persons have testified the manner and mode of receiving injuries for the proof of offence under Section 323 I.P.C. the injury report is not necessary; the statement of the accused under Section 313 I.P.C. are not in the nature of evidence and because the said statement is not given on oath. They could not adduce any oral or documentary evidence in their defence. Learned trial court has not committed any illegality while convicting and releasing the accused persons Radhey Shyam and Pawan Kumar on probation of good conduct. 8. Learned counsel appearing for the revisionist submitted that as many as four persons faced trial for the charge under Section 323, 504 I.P.C. and out of them two persons Radhey Shyam and Pawan Kumar were convicted of charge under Section 323, 504 I.P.C. However, aid of Section 34 I.P.C. has not been taken by learned trial court as well as learned appellate court while convicting and affirming the conviction of accused persons in absence of charge under section 34 I.P.C the role assigned to each of the accused person will be taken into consideration individually as the accused persons have not been convicted on the basis of Section 34 I.P.C. The revisionist Pawan Kumar has been assigned role of causing hurt to mother of P.W. 3 Mohd. Siraj by hitting her on her stomach but neither her medical examination was conducted nor she appeared as a witness before the Court. 9. P.W. 2 Rajendra has no supported prosecution version in his testimony before the Court and he had stated that he had not seen the accused persons assaulting the witnesses Abdul Majid and Mohd. Siraj. The injuries reports of P.W. 1 and P.W. 3 are not proved during the trial for want of production of medical evidence of the doctor who had prepared the reports. There are material contradictions in statements of witnesses which are taken into consideration by learned courts below. The conviction of the appellants are not sustainable under law under Section 34 I.P.C. committed by the revisionist. The revisionist have completed the period of probation as awarded long before and as directed by court below but even then they are suffering civil consequences and even the police authorities have not cleared the application moved by the revisionist of the presence of pass-port at their end. 10. He lastly submitted that as many as six persons are stated to have caused injuries to the witnesses however, only one lacerated wound is found on top of head and one contusion on right side of stapula mentioned in the injury report of Abdul Majid and one lacerated wound and one contusion is shown in injury report of Mohd. Siraj, however, these injuries reports are also not liable to be read in evidence due to non-examination of their (medical officer) who prepare these injuries reports. 11. Per contra, leaned A.G.A. appearing for the State submitted that there is no good ground to warrant the interference of this Court in concurrent findings to courts below regarding conviction and release of the revisionist on probation of good conduct. Learned courts below had rightly observed that in case under Section 323 I.P.C. the production and examination of medical witness is not mandatory and even in absence of injury report the conviction under Section 323 I.P.C. can be maintained. 12. PW. 1 Mohd. Siraj, the injured had stated in his evidence that Tej Narayan has assaulted him and his father on head. The accused persons has assaulted his mother and sister and Pawan Kumar hit his mother on her abdomen by club. 12. PW. 1 Mohd. Siraj, the injured had stated in his evidence that Tej Narayan has assaulted him and his father on head. The accused persons has assaulted his mother and sister and Pawan Kumar hit his mother on her abdomen by club. He has not named any persons of neighbourhood as witness, the report was lodged by his father first of all Ram Narayan hit the witnesses, he became unconscious due to injuries he received by banka on his head. 13. So far as the charge under Section 504 I.P.C. is concerned, Hon’ble Supreme Court in Fiona Shrikhande v. State of Maharashtra, AIR 2014 SC 957 held as under:- "However, Section 504 comprises of the following ingredients, viz (a) intentional insult, (b) the insult must be such as to give provocation to the person insulted, and (c) the accused must intent or know that such provocation would cause another to break the public peace or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break public peace or to commit any other offence, in such a situation the ingredients of section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under section 504." 14. In the present case a non-cognizable report lodged at the instance of P.W. 1 Abdul Majid on the basis of the oral statement has stated therein the accused persons assaulted him and his son Mohd. Siraj while abusing them four persons named in NCR and two witnesses Prem and Rajendra are mentioned therein. No specific allegation in the NCR as well as in the statements of witnesses aid to which of the accused abused which witness are injured at the time of the incident, there are general allegation against the accused persons that they had abused the injured persons while assaulting them. No specific allegation in the NCR as well as in the statements of witnesses aid to which of the accused abused which witness are injured at the time of the incident, there are general allegation against the accused persons that they had abused the injured persons while assaulting them. There is nothing in NCR as well as in evidence of witnesses that the accused persons had insulted the witnesses with intent to provoke them to commit breach of peace or to commit any offence, as stated by Hon'ble Apex Court In Fiona Shrikhande v. State of Maharashtra (supra). Therefore, in the absence of specific acquisition and evidence his charge under Section 504 I.P.C. the same is not found to be proved on the basis of evidence laid by prosecution during trial. Therefore, charge under Section 504 I.P.C. is not proved beyond reasonable doubt in the present case in the accused person released to be acquitted charge under Section 504 I.P.C. So far as under Section 323 I.P.C. is concerned although the accused reasons are not convicted with assistance of Section 34 I.P.C. but from on the basis of acquisition in NCR and evidence abused by the witnesses P.W. 1 and P.W. 3 during trial the fact that convicted accused persons voluntarily caused herein on P.W. 1 and P.W. 3 the informant and his son respectively. 15. The leaned courts below have rightly observed in impugned judgments that in every case, to prove the charge under Section 323 I.P.C. the existence of injury report or its proof by medical officer concerned is not necessary. 16. The medical evidence is essentially an opinion evidence and even in absence of medical evidence the charge under Section 323 I.P.C. may be proved on the basis of oral testimony of the witnesses as in the present case, the injury reports of P.W. 1 and P.W. 3 are placed on record but the same was not proved during trial by any medical evidence Thus, in the light of foregoing discussion, the learned courts below has committed no illegality and said charge is proved beyond the reasonable doubt against the convict persons. 17. The revisionists have been extended benefit of Section 4 probation of good conduct by the trial court and instant sentence at once. 17. The revisionists have been extended benefit of Section 4 probation of good conduct by the trial court and instant sentence at once. They were directed to be released on the probation of good conduct for proved offences and were directed to be placed under supervision of District Probation Officer. This is admitted that the period of probation has already expired and the revisionists had filed probation bonds pursuant direction of the trial court which has been affirmed by orders of appellate court. 18. Section 4 Probation of Offenders Act 1958 provides for power of these certain offenders on probation of good conduct when any person found guilty of offence committed, and offence did not punishable and the court by which are found guilty of the 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 when notwithstanding anything contained in any other law for the time being the court may, instead of sentencing him at once, many punishment direct that to release on interim bail with or without sureties to appear and face sentence when called upon during such not exceeding three years, as the court may direct, and in the meantime to keep the peace and good behavior for specified period altogether. 19. In the present case the conviction of appellant of the charge under Section 323 I.P.C. is maintained and their conviction under Section 504 I.P.C. has been quashed in this judgment the charge under Section 323 I.P.C. under Section 323 I.P.C. is not an offence of morale turpitude. Section 12 of probation of Offenders Act 1958 is very relevant which provides as under:- “12. Section 12 of probation of Offenders Act 1958 is very relevant which provides as under:- “12. Removal of disqualification attaching to conviction.— Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.” "In view of S. 12, Probation of Offenders Act, an offender who has been released on probation shall not suffer disqualification attaching to a conviction of the offence for which he has been convicted notwithstanding anything contained in any other law, instead of dismissing him from service he should have been removed from service so that the order of punishment did not operate as a bar and disqualification for future employment with Government. Under the circumstances, the impugned order of dismissal is converted into an order of removal from service. Subject to this modification the appeal fails and is dismissed: Trikha Ram v. V.K. Seth AIR 1988 SC 285 : 1987 (Supp) SCC 39." Similarly, where a person is convicted under S. 408, I.P. Code but has been released on probation under S. 4 (1) of the Probation of Offenders Act, S. 12 does not debar the authority to take into account the said conviction of the said Government employee for dismissing him from service: Harichand v. Director of School Education (1998) 2 S.C.C. 383 ." 20. Offence under Section 323 IPC is not an offence of moral turpitude, therefore in the light of Hon'ble Apex Court it appears that a person released on probation of good conduct will not incur any disqualification due to conviction recorded by trial court as provided under Section 12 of Probation of Offenders Act, 1958. 21. In the light of the foregoing discussion and observations the revision is partly allowed in the manner as stated above.