Court No. - 5 Case :- CRIMINAL REVISION No. - 56 of 1998 Petitioner :- Mangal Prasad Respondent :- State Of U.P. Petitioner Counsel :- A.R.Siddiqui,K.M.Rakesh Respondent Counsel :- Govt. Advocate Hon'ble Vedpal,J.
This revision under Section 397/401 Cr.P.C. has been filed against the
judgment and order dated 2.3.1998, passed by Sri Mahendra Dayal, the
then X Additional Sessions Judge, Faizabad in Criminal Appeal No. 24
of 1995 State Vs. Mangal Prasad and others whereby the appeal
preferred by the revisionists against their conviction and sentence for
the offence punishable under Sections 323,324 and 506 of the Indian
Penal Code recorded by II Additional Civil Judge ( Senior
Division)/Additional Chief Judicial Magistrate, Faizabad in Criminal
Case No. 29 of 1995 State Vs.Mangal Prasad and others Police Station
Hanswar district Faizabad was dismissed.
Brief facts relevant for decision of this revision are that one Sri Ram
Shavad on 29.9.1987 at about 12.40 p.m. lodged the first information
report at Police Station Hanswar to the effect that on 29.9.1987 at about
10 a.m. when he reached at his field he saw that Mangal and
Triveni( Revisionists Nos. 1 and 2 herein) were ploughing their field
while Kashi Ram and Ram Charan( Revisionists no. 3 and 4) were
sitting there . The said accused persons demolished Mend of his field
and when it was objected upon by him they started beating him and
when his brother Komal came there to rescue him he was also beaten. It
is alleged that at that time Mangal had Ballam; Triveni had Kudal;
while Kashi Ram and Ram Charan had Lathi with them. The said
incident was witnessed by Ram Shanker and Gati Yadav, who rescued
complainant Ram Shavad and his brother Komal from the accused
persons. On the basis of the written report submitted at the Police
Station by Ram Shavad, a case for the offence punishable under
Sections 323,324,504 and 506 I.P.C. was registered against the accused
persons and after investigation of the case the Police submitted charge
sheet against all the accused persons. The learned trial court framed the
charge for the offence punishable under Sections 323/34 I.P.C., 324/34
I.P.C., 504 and 506 I.P.C. against accused persons, who pleaded not
guilty to the charge and claimed to be tried.
In order to prove its case the prosecution had examined six witnesses in
all before the trial Court, out of whom P.W.1 Ram Shavad is
complainant himself and it is alleged that he had received injuries in the
incident. P.W.2 Komal is also an injured witness of the incident .P.W.3
Gati Yadav is alleged to be an independent eye witness of the incident.
P.W.4 Ram Palat is the scribe of the written report. P.W.5 Shyam Lal is
the Investigating Officer while P.W.6 Dr. M.L. Srivastava had
medically examined Ram Shavad and Komal.
Accused persons in their statements under Section 313 Cr.P.C. denied
the prosecution allegation against them and stated that they have been
falsely implicated in the case. No evidence in defence was adduced by
them.
Learned Magistrate after going through the evidence on record and after
analysing the same reached the conclusion that charge for the offence
punishable under Section 324 I.P.C. is made out against Mangal Prasad
Tiwari only while charge for the offence punishable under Section 323
I.P.C. stands proved against Triveni Prasad, Kashi Ram and Ram
Charan and charge for the offence punishable under Section 506 I.P.C.
stands proved against all the accused persons. The charge for the
offence punishable under Section 504 I.P.C. was found not to have been
made out against any one and accordingly all the accused were
acquitted to the charge for the offence punishable under Section 504
I.P.C., the sentence of one year rigorous imprisonment was awarded for
the offence punishable under Section 324 I.P.C. to Mangal Prasad
Tiwari, six months rigorous imprisonment for the offence punishable
under Section 323 I.P.C. was awarded to Triveni Prasad, Kashi Ram
and Ram Charan while rigorous imprisonment for the period of one
year was awarded to each accused for the offence punishable under
Section 506 I.P.C.
Feeling aggrieved against the said judgment and order, passed by
learned Additional Chief Judicial Magistrate an appeal was preferred
which was dismissed as stated above and conviction and sentence were
maintained . Feeling aggrieved with the said judgment and order, passed
by the court below the accused persons have preferred this revision.
I have heard learned counsel for the revisionists as well as learned
A.G.A. for the State and perused the record of the case along with the
impugned judgment and order carefully.
Learned counsel for the revisionists has not questioned the legality and
propriety of the conviction recorded by the trial court against the
revisionists. He confined his arguments only to the extent of legality
and the severity of the sentence passed against the revisionists by the
courts below. It was submitted by learned counsel for the revisionists
that the incident had occurred all of a sudden and there was no
premeditation to commit this offence by the accused persons He further
contended that accused were not previous convicts and have no criminal
history. They are simple villagers and have no criminal antecedents and
by keeping them in jail no useful purpose will be served out. While
converse to it there is possibility that they will come into the contacts
with hardened criminals in the jail. It was further submitted that object
of the punishment should be reformative and keeping all these facts in
view, it was necessary for the courts below to give benefits of
provisions of the Probation of Offenders Act but the learned court
below has neither given benefits of the Probation of Offenders Act to
the revisionists nor recorded any reason for not having done so. Thus,
judgment and order, passed by the learned courts below on this count
suffer from illegality and the revisionists should be given benefit of the
Probation of Offenders Act.
Learned AGA submitted that the revisionists before the courts below
had not demanded the benefit of the provisions of the Probation of
Offenders Act and as such if this benefit was not accorded to them, it
cannot be said any infirmity in the judgment and order passed by the
courts below and the revision as such is liable to be dismissed.
I have carefully considered the respective submissions made by the
parties.
It reveals from the perusal of the record that the revisionists are not
previous convicts . They have no criminal history or antecedent. The
incident had occurred all of a sudden. The maximum sentence awarded
to the revisionists is one year R.I. Thus, short term imprisonment was
awarded to the revisionists. If for this short term period, the revisionists
are sent to jail now after 23 years from the date of incident, there is
every possibility that they will associate with criminals in jail. The
revisionists had been under constant mental tension of this litigation
since the last 23 years. Section 361 of the Code of Criminal Procedure
provides that where in any case the Court could have dealt with an
accused person under the provisions of the Probation of Offenders
Act,1958 but has not done so, he shall record in his judgment the
special reasons for not having done so. It has been admitted by both the
parties that the Probation of Offenders Act, 1958 is applicable in U.P.
Section 4 of the Probation of Offenders Act provides that 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 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,
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 behavior.
A perusal of the impugned order makes it clear that neither the trial
court nor the appellate court has recorded special reasons in their
judgments for not giving benefit of the Probation of Offenders Act to
accused persons in compliance of the provisions of Section 361 Cr.P.C.
Section 11 of the Probation of Offenders Act states that revisional court
is also competent to accord benefit of the Probation of the Offenders
Act to an accused in the revision.
In view of the above, having regard to the facts and circumstances of
the case,antecedent of the revisionists and the provisions of the Code of
Criminal Procedure and the Probation of the Offenders Act,1958, it
appears expedient that benefit of Section 4 of the Probation of the
Offenders Act be accorded to the revisionists and as such the judgments
and orders of the courts below are liable to be modified to this extent.
The revision, therefore, should be allowed .
The revision is, therefore, allowed accordingly. The order of sentence,
passed against the revisionists is hereby suspended and it is directed that
the revisionists shall be released on probation of good conduct for a
period of one year from today under the provisions of Section 4 of the
Probation of the Offenders Act, on their entering into a bond with one
surety in the amount of rs.10,000/- to the effect that they will appear
and receive sentence when called upon by the trial court during the said
period of one year and they shall keep peace and be of good behaviour
during the said period. The bonds shall be furnished by the revisionists
before the trial court within a period of one month from today.
If the revisionists fail to comply the above direction, the revision shall
dismissed and they shall be liable to undergo sentences awarded to
them.
Order Date :- 28.7.2010
Tripathi