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2023 DIGILAW 953 (ALL)

Ali Sher v. State of U. P.

2023-04-07

RENU AGARWAL

body2023
JUDGMENT : RENU AGARWAL, J. 1. The present Criminal Revision is moved by revisionist u/s 397, 401 Cr.P.C. against the judgment and order dated 11.06.2009 passed by Additional Sessions Judge Barabanki in Criminal Appeal No. 5 of 2007 (Ali Sher and Others vs. State of U.P.) u/s 326 IPC in Case Crime No. 89 of 1998, P.S. Deeh, District-Raebareli upholding the conviction of Section 326 IPC for 3 years and fine of Rs. 1000/- each and in default of payment of fine, imprisonment for one month passed by the learned First Judicial Magistrate, Court No. 17, Raebareli on 17.04.2007 in Case Crime No. 1820 of 2006 (State vs. Sher Ali and Others). 2. Wrapping the facts in brief, the victim was married to the revisionist Ali Sher son of Mohammad Zama 14 months ago. Ali Sher was jobless and was doing nothing for rearing his family, therefore, the victim complained his husband and father-in-law that she could not live with Ali Sher in such circumstances and expressed her desire to divorce her husband and remarry another person. When she expressed such desire, her husband and father-in-law came in the courtyard in the night where she was sleeping. Her father-in-law ride on her stomach and her husband amputated her nose. When she made hue and cry, her brother-in-law Mohd. Abbas came to the scene and saw the incident. 3. On the basis of written report, the case was registered on 26.07.1998 as Case Crime No. 89 of 1998 u/s 326 IPC and was investigated by Investigating Officer to record the statements of witnesses. He investigated the spot and prepared site plan and produced the victim/injured before the Medical Officer and got her medically examined. Thereafter, he submitted charge-sheet u/s 326 IPC. 4. Learned Trial Court framed and explained charges against the accused who abjured from the charges and claimed to be tried. 5. The prosecution in order to prove their case, adduced PW-1 Mustafa, PW-2 Abbas, PW-3 Zahida Bano and PW-4 Dr. R.P. Maurya, PW-5 Constable/Moharrir Subhash Chandra Tiwari. 6. After the conclusion of prosecution witnesses, statements of accused were recorded u/s 313 Cr.P.C. whereby they denied the allegation levelled against them and they refused to adduce any defence, however, the opportunity was awarded to them. 7. R.P. Maurya, PW-5 Constable/Moharrir Subhash Chandra Tiwari. 6. After the conclusion of prosecution witnesses, statements of accused were recorded u/s 313 Cr.P.C. whereby they denied the allegation levelled against them and they refused to adduce any defence, however, the opportunity was awarded to them. 7. Learned Trial Court, after the perusal of record and evidence adduced by the prosecution, reached to the conclusion that the medical report is proved by PW-4 Dr. R.P. Maurya and the face of victim was deformed due to deep cut on nose. The victim herself appeared as PW-1 and she corroborated the contents of the FIR, hence the learned Trial Court convicted both the accused u/s 326 IPC and sentenced them with simple imprisonment of 3 years and fine to the tune of Rs. 1000/- each and with additional simple imprisonment of one month each in default of payment of fine. 8. Aggrieved with the judgment and order dated 13.04.2017 passed by the Judicial Magistrate, Court No. 17, First Appeal was filed. 9. First Appellate Court perused the statements of PW-1 Mustafa, PW-2 Abbas who were declared hostile during trial. PW-1 Mohd. Mustafa admitted that he accompanied the injured to the police station. He is also close relative to Ali Sher and Mohammad Zama who is uncle and brother of the accused respectively, consequently, he did not corroborate the prosecution version. PW-2 Abbas is the real brother of accused/revisionist Ali Sher and son of accused/revisionist Mohammad Zama, who has not supported the prosecution version and were declared hostile. It is very natural that he did not corroborate the testimony of the injured as he is in the blood relation of the revisionist. 10. PW-4 Dr. R.P. Maurya proved injury report and found the following injuries: 11. (i) cut injury of 2.5 cm x 0.5 cm x muscle deep in the middle of right side of nose of the victim/injured the edges of which were averted. 12. (ii) cut wound of 2 cm x 0.5 cm x muscle deep in the middle of left side of nose the edges of which were sharp and averted. 13. (iii) cut wound of 5.5 cm long cutting left nostril, deep into nose and to the septum of nose. 14. PW-4 Dr. R.P. Maurya opined that some part of nose was severed from nose and was not found at the time of medical examination. 13. (iii) cut wound of 5.5 cm long cutting left nostril, deep into nose and to the septum of nose. 14. PW-4 Dr. R.P. Maurya opined that some part of nose was severed from nose and was not found at the time of medical examination. The face was deformed and all the injuries were caused by sharp edged weapon and are 12 hours old. First Appellate Court analyzed the statement of the victim/injured. 15. Injured Zahida Bano proved the incident beyond suspicion. First Appellate Court held that the incident occurred in the house of the accused, therefore, the burden of proof u/s 106 of Indian Evidence Act lies upon the accused to explain how Zahida Bano sustained such injuries. The motive is self-evident that victim wanted to divorce the revisionist Ali Sher and wanted to remarry another person, therefore, the accused deformed the face of victim/injured so that she may be refrained from remarriage. During cross-examination, Smt. Zahida Bano admitted that she knew before marriage that her husband was physically challenged by right leg and the family of both the bride and groom were agreed that both the bride and groom will get divorced if the bride is not agree to reside with her husband. Later on, she expressed her desire to divorce her husband after 14 month of marriage. 16. Aggrieved with the judgment and order dated 11.06.2009 passed by Judicial Magistrate and the order of First Appellate Court dated 13.04.2017, the present revision has been filed. 17. Heard learned counsel for the revisionist Sri Abdul Samad and learned AGA for the State and perused the record. 18. Learned counsel for the revisionist submitted that the Trial Court and the First Appellate Court did not look into the fact that PW-1 Mustafa and PW-2 Abbas turned hostile during the trial and injured Zahida Bano admitted in her cross-examination that she was sleeping inside the house and closed the main door from inside and revisionist no. 1 was sleeping outside at the time of occurrence, therefore, it is not possible that revisionist broke the door from outside and committed the alleged offence at 02:00 am in the night. 19. It is also submitted that occurrence had taken place at 02:00 am on 26.07.1998 which goes to show that Zahida Bano did not sustain grievous injuries. Revisionist no. 1 is physically handicapped and Zahida Bano married to revisionist no. 19. It is also submitted that occurrence had taken place at 02:00 am on 26.07.1998 which goes to show that Zahida Bano did not sustain grievous injuries. Revisionist no. 1 is physically handicapped and Zahida Bano married to revisionist no. 1 having full knowledge that revisionist no. 1 is handicapped before marriage. 20. It is also submitted that Dr. Arun Kumar Singh performed plastic surgery of the nose of Zahida Bano at Raj Nursing Home and she has solemnized second marriage after getting divorced from Ali Sher. It is also submitted that there is no opportunity awarded to revisionist to explain the circumstances appearing in evidence against them, therefore, it is prayed to set aside the judgment and order of conviction passed by learned First Judicial Magistrate, Court No. 17 on 17.07.2007 and the judgment passed by Additional Sessions Judge, Raebareli in Criminal Appeal No. 5 of 2007 on 11.06.2009 convicting the revisionist u/s 326. It is also contented that if learned Trial Court do not award benefit of Probation of Offenders Act, 1958 to accused, he must mention the reason of not awarding the benefit of Probation of Offenders Act, 1958. Learned counsel relied on Mohd. Monir Alam vs. State of Bihar, (2010) 12 SCC 26 , Hon’ble Apex Court held that: “...His conduct and attainments after his involvement in the matter justifies his release on probation...” 21. And Hon’ble Apex Court awarded the benefit of Section 4 of Probation of Offenders Act, 1958. 22. Learned Counsel for the revisionist relied upon State of Karnataka vs. Mudappa, wherein Hon’ble Supreme Court considered the question as to whether the benefit of Probation of Offenders Act, 1958 could be extended to offence u/s 304(2) of IPC and concluded that there is no statutory bar for the application of Probation of Offenders Act, 1958 to an offence u/s 304(2) where maximum punishment is neither death, nor imprisonment for life. 23. During the argument, learned counsel for the revisionist did not dispute the conviction of revisionist. Arguing on the point of sentence, learned counsel submitted that it was a family dispute and the incident happened in deep depression of accused/revisionist Ali Sher when his wife desired to divorce him and remarry another person. Learned Trial Court did not explain why the benefit of Section 4 of Probation of Offenders Act, 1958 must not be granted to present revisionist. Learned Trial Court did not explain why the benefit of Section 4 of Probation of Offenders Act, 1958 must not be granted to present revisionist. It is further submitted that revisionist is not previous convict and he has no criminal history apart from this case, therefore, in view of the above facts and circumstances, learned Trial Court ought to have invoked the provision of Probation of Offenders Act, 1958. 24. Per contra, learned AGA submitted that there is concurrent finding of both the Courts that revisionist with the help of his father, chipped off the nose of victim/injured deforming her face, however, it was agreed between the parents of both the sides that the party shall divorce if the bride is not agree to reside with her husband after marriage and when she expressed her willingness to divorce her husband, present revisionist chipped off her nose so as to deform her face. 25. Nothing is on record to show that the revisionists are falsely implicated in the case, therefore, from the perusal of the judgment of both the Courts, it transpires that the concurrent finding is given by both the Courts and the revisionists were held guilty u/s 326 IPC. Court agreed with the aforesaid finding of the learned Sessions Judge especially in the opinion of PW-4 Dr. R.P. Maurya. 26. From the perusal of the judgment, it transpires that learned Trial Court while dealing with the sentence recorded, did not discuss why the benefit of Section 4 of Probation of Offenders Act, 1958 cannot be given to the accused. 27. It transpires from the finding of Court that learned Trial Court neither invoked Probation of Offenders Act, 1958, nor the provision u/s 360 Cr.P.C. while sentencing the accused revisionist, Trial Court has not given a specific reason why the present accused should not be given to benefit of above mentioned provisions. Therefore, the judgment and order passed by learned Trial Court suffers from serious illegality as the order of learned Trial Court is violative of provisions under Section 361 Cr.P.C. therefore, the impugned judgment is liable to be set aside. Section 361 Cr.P.C. is read as under: “361. Special reasons to be recorded in certain cases Where in any case the Court should have dealt with: (a) an accused person u/s 307 or under the Probation of Offenders Act, 1958 (20 of 1958). Section 361 Cr.P.C. is read as under: “361. Special reasons to be recorded in certain cases Where in any case the Court should have dealt with: (a) an accused person u/s 307 or under the Probation of Offenders Act, 1958 (20 of 1958). (b) A youthful offender under the Children’s Act, 1960 (60 of 1960), or another like for the time being in force for the treatment, training of Rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so.” 28. It is apparent that the accused is not previously convicted, no other case apart from this case, is registered against him. The offence committed in the desperate state of mind when his wife desired to divorce him and remarry another person and to the fact that respondent Zahida Bano had already remarried another person, the benefit of Probation of Offenders Act, 1958 can be extended to the present revisionist also. 29. In view of the above facts and circumstances and considering the scope of Section 4 of Probation of Offenders Act, 1958 and the time which is already lapsed from the date of occurrence, the revision is accordingly dismissed by upholding the conviction of accused/revisionist, however, he is granted the benefit of Section 4 of Probation of Offenders Act, 1958. 30. Revisionist is directed to appear before the Court concerned and Chief Judicial Magistrate concerned is directed to extend the benefit of Section 4 of Probation of Offenders Act, 1958 to the accused/revisionist and released him on probation on the execution of personal bond and sureties to the tune of Rs.20,000/- along with the undertaking to keep peace and tranquility in society and not to commit any offence in future during the period of one year. 31. Accused/revisionist shall appear before the CJM within the period one one month from today for compliance of the present order. As provided u/s 5 of Probation of Offenders Act, 1958, revisionist shall pay a compensation of Rs.10,000/- which shall be deposited in District Legal Services Authority, within one month from today. 32. In case of breach of any said conditions, the accused/revisionist shall subject himself to undergo the sentence. 33. Let the copy of this judgment as well as Lower Court record be transmitted to the concerned Trial Court forthwith for necessary compliance.