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Allahabad High Court
Kallu And (2) Others. vs State Of U.P. on 9 August, 2010
      Reserved

                     Criminal Revision No.264 of 2000

Kallu and others.                       .......................Revisionists
                                 Vs.
State of U.P.                             ................   Opposite Party

Hon'ble Vedpal,J.

This revision under Section 397/401 Cr.P.C. is directed against
the judgment and order passed by Shri Sant Lal Ram, H.J.S., the then
Additional Sessions Judge/Special Judge, SC & ST Act, Barabanki in
Criminal Appeal No.28 of 1999 : Kallu and two others Vs. State of
U.P. whereby the appeal preferred against the judgment and order
dated 29.5.1999 passed by Shri S.C.Sharma, P.C.S.(J), A.C.J.M.,
Barabanki in Criminal Case No.917 of 1997 (Crime No.17 of 1997) :
State Vs. Kallu convicting and sentencing the appellants for the
offence punishable under Section 323/34 to undergo simple
imprisonment for a period of six months, for the offence punishable
under Section 324/34 to undergo simple imprisonment for a period of
six months, for the offence punishable under Section 504 I.P.C. to
undergo simple imprisonment for a period of six months and for the
offence punishable under Section 506 I.P.C. to undergo simple
imprisonment for a period of six months, was dismissed and the
above conviction and sentence were confirmed.

Prosecution version as is revealing from the record is that on
2.5.1997, at about 5.00 p.m., Pancham, brother of the first informant
Ramji, resident of Atrauli, which lies within the circle of police
station Zaidpur, District Barabanki had gone on the fields for grazing
the cattle. It is further stated that accused Kallu, Arju and Jagjeevan
(revisionists herein) reached there having lathi and banka with them
and started abusing Pancham. On an altercation, Laxmi Narain and
others reached there. The accused persons started beating Pancham
as a result of which he sustained injuries. This incident was also
witnessed by Ram Sewak and Badlu who rescued Pancham from the
accused persons. Thereafter, accused persons left the place of incident
abusing and intimidating Pancham. A report of the said incident was
lodged by Ramji, complainant at the police station and Pancham was
got medically examined. The investigation of the case was taken up
by Sub Inspector Shiv Sharan Singh Parihar who after investigation,
submitted the chargesheet against the accused persons for the offence
punishable under Section 323, 324, 504, 506 I.P.C. The accused were
charged for the said offences by the learned trial court who pleaded
not guilty to be charged and claimed to be tried.

The prosecution in order to prove its case, has examined seven
witnesses in all out of whom P.W.-1 Ram Ji is the first informant. He
is not an eye witness to the incident. P.W.-2 Pancham is the injured
witness itself. P.W.-3 Badlu, P.W.-4 Ram Sewak are the alleged
independent eye witness of the incident. P.W.-5 Constable Madan
Singh is a formal witness. P.W.-6 V.K. Sharma had medically
examined Pancham after the incident. He has deposed on the factum
of injury sustained by Pancham during the incident. P.W.-7 Sub
Inspector Shiv Sharan Singh Parihar is the investigating Officer who
after completing investigation, submitted chargesheet against the
accused persons and he has deposed on the factum of investigation.
No other witness was testified by the prosecution to prove its case.
The accused persons in their statement under Section 313 Cr.P.C.
denied the prosecution allegations and stated that they have been
falsely involved in the case. The learned Magistrate after going
through the evidence on record, reached to the conclusion that the
charge stand proved against accused persons and he accordingly
convicted the accused persons. Feeling aggrieved with the said
judgment, an appeal was preferred by the accused persons which was
also dismissed and judgment and order of conviction passed by the
learned court below was confirmed. Feeling aggrieved with the said
judgement and orders passed by the courts below, the accused have
preferred this revision.

I have heard the learned counsel for the revisionists as well as
learned A.G.A. for the State and perused the record of the case. The
revision is not being pressed on the legality of conviction by the
learned counsel for the revisionists. It has been rightly done.
Learned trial court had recorded the statements of seven witnesses in
all out of whom two witnesses were independent eye witnesses and
one was injured witness. The rest were formal witnesses. All the
witnesses have supported the prosecution version. There was nothing
in their testimony to disbelieve the prosecution version or to doubt
the veracity of the prosecution story. Learned appellate court also on
appraisal of the evidence, reached to the conclusion that appellants
had been rightly convicted and sentenced. Thus there is concurrent
finding that the accused appellants had committed the offence in
question and they were rightly convicted.

On the question of sentence, it has been submitted by the
learned counsel for the revisionists that the revisionists are not
previous convict. They are poor and simple person, resident of
village and the incident had occurred all of a sudden in the heat of
passion and revisionists had no shady antecedents and they are
running their livelihood by dent of their hard work in agriculture. It
was further submitted that it was mandatory for the court below to
deal with the accused persons under the provisions of Probation of
Offender Act as the offence for which the revisionists have been
convicted, is of petty nature, the injuries are simple and the maximum
sentence awarded to the revisionists is two years and in this
circumstance, they should have been dealt with under the provisions
of Probation of Offenders Act, 1958.

It reveals from the perusal of Section 361 Cr.P.C. that it is
mandatory for the court to record in its judgment the special reasons
for not releasing the offender on probation of good conduct. In the
present case, neither the trial court nor the lower appellate court has
recorded the reasons to deprive the revisionists from the benefit of
Probation of Offender Act, 1958. The accused are not habitual
criminals and they have no criminal antecedents. It will not be proper
to send them jail for the incident which had occurred 13 years back.

Having regard to the facts and circumstances of the case, the
the antecedents, the fact that the incident had taken place about 13
years before, and the offence are not of grave nature, I am of the
opinion that the revisionists should be given benefit of Section 4 of
the Probation of Offender Act.

In view of the above, the revision should be partly allowed by
maintaining the conviction but suspending the sentence awarded to
them and giving benefit of section 4 of the Probation of Offenders
Act to the revisionists.

The revision is therefore, allowed in part to the extent that the
conviction recorded by the court below against the revisionists are
maintained but the sentence awarded to them is suspended and it is
directed that the revisionists shall be released on probation of good
conduct for a period of two years under the provisions of Section 4 of
the Probation of Offender Act, 1958 from the date of their furnishing
a personal bond of Rs.15,000/- with one reliable sureties in the like
amount to the satisfaction of the trial court to the effect that the
revisionists shall appear to receive sentence within the said period of
two years as and when called upon by the court concerned and in the
meantime, to keep peace and be of good behaviour.

The above bonds shall be executed before the court below
within a period of one month from today. In case the revisionists fails
to comply the above direction, the revision shall stand dismissed and
the sentence shall restore.

9.8.2010.

Shukla.


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