Court No. - 5 Case :- CRIMINAL REVISION No. - 124 of 2000 Petitioner :- Ganga Bishun And (4) Others. Respondent :- The State Of U.P. Petitioner Counsel :- K.R.Singh Respondent Counsel :- Govt Advocate Hon'ble Vedpal,J.
Reserved
Criminal Revision No. 124 of 2000
Ganga Bishun and (4) Others …………………..Revisionists
Vs.
State of U.P. ……………. Opposite Party
Hon’ble Vedpal,J.
This revision under Section 397/401 Cr.P.C. has been filed by
the accused persons (revisionists herein) against the judgment
and order dated 7.3.2000 passed by Sri P. N. Rai, H.J.S. the
then Sessions Judge, Unnao in Criminal Appeal No.83 of
1999 : Ganga Bishnu and Others Vs. State of U.P whereby
the appeal preferred by accused persons against their
conviction and sentences under Sections 147, 148, 323/149,
325/149 and 506(2) I.P.C. was dismissed with the
modification of acquittal of all accused persons for the
offence under Section 148 I.P.C. except Pappu Singh and
reduction of sentence of imprisonment of three years to one
year for the offence punishable under Section 325/149 I.P.C.
During the pendency of this revision Ram Narain Tiwari
died, so proceeding against him was abated.
Brief facts as is revealing from the record which are relevant
for the decision of this revision, are that first informant Sri
Nath Tiwari had gone to see his grove on 5.7.1995 at about
6:00 p.m. Accused persons Ganga Bishun, Ram Narain
Tiwari, Surendra Singh, Man Singh and Pappu Singh also
reached there. Accused Pappu Singh at that time was armed
with a country-made pistol while other had lathi with them.
All the accused persons on account of the old enmity, started
assaulting Sri Nath Tiwari after abusing him. On the alarm
being raised by Sri Nath Tiwari, Vijay Kumar, Gaya Prasad
and certain other persons reached there who saw incident and
intervened. The accused persons left the place of incident,
threatened Sri Nath Tiwari to kill him. Sri Nath Tiwari in the
incident received several injuries. One Rajendra Prasad
Pandey scribe the written report at the dictation of Sri Nath
Tiwari, which was submitted at Police Station Makhi District-
Unnao. On the basis of the said written report, a case for the
offence punishable under Sections 147/148/323/149/325/
149/ 504/506(2) I.P.C. was registered against accused persons
and the investigation of the case was taken up by the police.
The injured Sri Nath Tiwari was sent by the police to district
hospital, Unnao with a constable where he was medically
examined by Dr. Alok Ranjan Mishra on the same day at
11:45 a.m. The following injuries were found on his person:-
1. A lacerated wound 1cm x 0.5cm
aponeurosis deep on right parietal region
of scalp, 13 cm away from right ear.
Blood is oozing from the wound on
cleaning
2. An abraded contusion reddish in colour 9
cm x 5 cm on left side of face.
3. A lacerated wound 1cm x 0.5cm x muscle
deep on outer aspect of right upper arm,
12cm away from right shoulder joint.
Blood is oozing from the wound on
cleaning.
4. A reddish contusion with diffuse swelling
15cm x 3cm on lower behalf of left upper
arm at its back.
5. A reddish contusion with diffuse swelling
12cm x 9cm on the back of left elbow joint.
6. A reddish contusion with diffuse swelling
15cm x 8 cm on the back of upper 2/3 rd of
left forearm.
7. A reddish contusion with diffuse swelling
10cm x 6 cm on the back of hand.
8. An abraded contusion reddish in colour
with diffuse swelling 10cm x 8 cm on left
shoulder joint and upper 1/3rd of left
upper arm.
9. A lacerated wound 1cm x 0.5 cm x muscle
deep in front of left leg, 15cm away from
left ankle joint.
10.A lacerated wound with diffuse swelling
18cm x 6cm in front of right knee joint and
upper 1/3rd of right leg.
11.A reddish contusion 20cm x 12cm on left
scapular region of back.
In the opinion of the doctor, all the injuries were found fresh
and caused by blunt object. Injuries nos.9, 10 and 11 were
simple while others were kept under observation and x-ray
was advised for them. Sri Nath Tiwari was X-rayed on the
next day whereupon fracture of 4th meta carpal bone of his
left arm was found. On the basis of X-ray report, an addition
of Section 325 IPC was made. The police after having
completed the formalities of the investigation submitted
charge sheet against accused persons for the offence
punishable under Sections
147/148/323/149/325/149/504/506(2) I.P.C. whereupon
accused persons were summoned and put on trial.
Learned trial court levelled a charge against accused persons
for the offence punishable under Sections
147/148/323/149/325/149/ 504/506 (2) I.P.C. to which
accused persons had pleaded not guilty and claimed to be
tried.
In order to prove the charge levelled against accused persons,
prosecution had examined six witnesses in all. PW-1 Gaya
Prasad is alleged to be an independent eye witness of the
incident. PW-2 Sri Nath Tiwari is injured himself. PW-3 Dr.
Satya Prakash had X-rayed injured Sri Nath Tiwari on
6.7.1995 and had found fracture of 4th meta carpal bone of
left arm of Sri Nath Tiwari. He has also proved X-ray
examination report. PW-4 Sub-Inspector Ram Singh is the
Investigating Officer of the present case who had recorded
the statement of witness and had preferred the site plan of the
place of incident after visiting the same and he had also
submitted charge sheet after completing the investigation. He
has deposed in support of the factum of investigation. PW-5
Om Prakash Mela is a formal witness who had prepared chik
report on the basis of written report of the incident and had
registered the case in the G.D. He has deposed on the said
factum. PW-6 Dr. Alok Ranjan Mishra had medically
examined Sri Nath Tiwari on 5.7.1995 at 11:15 a.m. who had
proved injured report, no other witness was examined by the
prosecution.
The accused persons in their statement under Section 313
Cr.P.C. denied the prosecution allegations against them. They
in their defence filed copy of charge sheet relating to Case
Crime No. 784/98 Sri Nath Tiwari Vs. State of U.P. under
Sections 323, 504, 506 IPC P.S. Makhi but no witness was
examined by the accused persons in their defence. After
going through the evidence on record and after hearing the
parties, the learned trial court came to the conclusion that
charge levelled against accused persons is made out beyond
reasonable doubt and accordingly he convicted the accused
persons for the offence punishable under Sections
147/148/323/149/325/149 and 506 IPC. Each of the accused
was sentenced to undergo imprisonment for a period of six
months for the offence punishable under Section 147 I.P.C.,
one year rigorous imprisonment for the offence punishable
under section 148 I.P.C., six months rigorous imprisonment
for the offence punishable under Section 323/149 I.P.C., three
years rigorous imprisonment for the offence punishable under
Section 325/149 I.P.C. and to pay a fine of Rs.500/- and one
year rigorous imprisonment for the offence punishable under
Section 506(2) I.P.C. It was further directed that the accused
who commits default in the payment of the fine, he shall
further undergo imprisonment for one month.
Feeling aggrieved with the said judgment, the appeal was
filed by accused persons, which was disposed of as stated
above. Being dissatisfied with this judgment and order passed
by appellate court this revision has been filed.
I have heard the learned counsel for the revisionists as well as
learned AGA for the State and perused the record of the case
along with the judgment and order, carefully.
Learned counsel for the revisionists has not challenged the
legality and propriety of the conviction recorded by the
appellate court against the revisionists. Learned counsel for
the revisionists confined his arguments only to the legality
and severity of the sentence passed against the revisionists by
the court below. It was submitted that the accused persons
were not previous convict and had no criminal history. They
are simple villagers and have no criminal antecedents and
therefore by keeping them in jail for short term of one year,
no useful purpose will be served and by sending them to jail,
there is possibility that they will come in contact with the
hard criminal there and as such the accused persons ought to
have been dealt with under the provisions of Probation of
Offender Act but the learned court below did not do so and
pass short term sentence as against the revisionists.
Learned AGA submitted that a prayer for releasing them on
Probation of Offender Act was made by the accused persons
before the learned Magistrate but the same was refused and
benefit of Probation of Offender Act was not sought for by
accused persons before the appellate court and as such they
should not be given the benefit of Probation of Offender Act
and as such there is not infirmity or irregularity in the
judgment and order passed by the court below and the
revision is liable to be dismissed in toto.
I carefully considered the respective submissions made by the
parties.
It reveals from the perusal of the record that the revisionists
and the injured of the present case are resident of the same
village. The revisionists are not previous convict, they have
no criminal history or criminal antecedents. The maximum
sentence which was awarded to the revisionists is one year
rigorous imprisonment. The incident has occurred on
5.7.1995 about more than 15 years back. They had been
under constant pressure of the litigation since then. There is
every possibility that if they are sent to jail for the offence
which was committed by them 15 years before, they will
come in the contact of hard core criminals in jail.
It reveals from the perusal of the record that though the
accused persons had made prayer before the learned Trial
Court that benefit of Probation of Offender Act be given to
them but the learned court below refused to give benefit to
them only on the ground that they have been held guilty for
the offence punishable under Sections 147, 148, 323, 325
read with section 149 and 506 IPC and they do not deserve
this benefit, but the reasons thereof for not giving benefit
were not given. Section 361 Cr.P.C. is very relevant on this
point. It provides as under
” Section 361-Special reasons to be recorded in certain
cases- Where in any case the court could have dealt with–
(a).an accused person under Section 360 or under the
provision of the Probation of Offender Act, 1958.
(b).a youthful offender under the Children Act, 1960, or any
other law for the time being in force for the treatment,
training or rehabilitation of youthful offenders.
But has not done so, it shall record in its judgment the
special reasons for not having done so.
A perusal of the above provision would make it clear that
where, in any case the court could have dealt with accused
persons under the provisions of Probation of Offender Act,
1958 but the court has not done so, he shall record in his
judgment the special reasons for not having done so. The
offence for which the accused persons have been held guilty
is not punishable life imprisonment of death sentence. All the
offenses are triable by the court of the Magistrate and the
maximum punishment awarded to them is one year
imprisonment. No special reason for not having given benefit
of the Probation of Offender Act has been assigned by the
learned trial court in its judgment. I find no substantial
ground to refuse this benefit to the accused persons.
In view of the above having regard to the facts and
circumstances of the case, antecedents of the revisionists and
the provisions of the Code of Criminal Procedure and
Probation of Offender Act, 1958, it appears expedient that
benefit of Section 4 of the Probation of Offender Act be
extended to the revisionists and as such the judgment and
order of the court below is liable to be modified to this extent.
The revision therefore, should be allowed in part.
The revision is, therefore, allowed in part. The conviction
recorded by the court below against revisionists are
maintained but the sentence awarded to them is suspended
and it is directed that the revisionists shall be released under
the provisions of Section 4 of the Probation of Offender Act
on probation of good conduct for a period of one year from
today on their furnishing a personal bond in the amount of Rs
10,000 with one surety to the effect that they shall keep peace
and be of good behaviour during the said period of one year
and shall appear to receive sentence when called upon by the
trial court. The bond shall be furnished by the revisionists
before the trial court within a period of one month from
today.
In case the revisionists failed to comply the above direction,
the revision shall stand dismissed and sentence awarded to
them shall be restored.
Order Date :- 28.7.2010
Mahesh