Charri vs State

@DELETEUPPERDATA

Ranjana Pandya, J.—This revision has been preferred against the Judgment and order dated 2.6.1988 passed by the Ist Additional Sessions Judge, Ghaziabad in Criminal Appeal No. 88 of 1987 affirming the conviction and sentence under Sections 452 and 323/ 34 I.P.C. reducing the sentence under Section 452 I.P.C. from 6 months to 3 months rigorous imprisonment coupled with fine of Rs. 500/- against the Judgment and order dated 10.6.1987 passed by the Munsif Magistrate, Hapur in Case No. 20 of 1987 whereby all the accused were convicted under Sections 452, 323/ 34 I.P.C. and the accused Khushiram was sentenced to undergo six months rigorous imprisonment under Section 452 I.P.C. and three months rigorous imprisonment under Section 323/ 34 I.P.C. while the other accused Charani, Rajpal and Rambhool were sentenced to undergo six months'' rigorous imprisonment under section 452 and six months'' rigorous imprisonment under section 323/ 34 I.P.C. coupled with fine of Rs. 500/- each with default stipulation.

Brief facts of the case are that in the night of 7.11.1981 in Village Sikhera, Police Station Pilakhuva, District Ghaziabad Khushiram and Rambhool had assaulted Lal Singh and Harswaroop regarding which a non-cognizable report was lodged at Police Station Pilakhuva on 7.11.1981 at 9.05 a.m. A cross report was lodged by Khushiram against Inder pal, Amar Singh, Pappu and Amrit Singh under Sections 323, 504, 506 I.P.C. on 7.11.1981 at 8.15 a.m.

Due to the aforesaid enmity, it is alleged when Lal Singh and Harswaroop had gone to the hospital in Ghaziabad for the medical examination of their injuries, the accused Charni, Khusiram, Rajpal and Rambhool committed criminal house trespass by entering into the house of Amrit Singh on 8.11.1981 at about 9 a.m. and assaulted Smt. Samaia, mother of Amrit Singh, and Smt. Shakuntala, sister-in-law of Amrit Singh with lathis. On hearing the alarm some persons of the village including Janu Ali Hasan, Imamuddin and Jumma arrived on the spot and saved the injured.

A report was lodged upon which investigation commenced and the Investigating Officer submitted charge sheet against the accused persons. Charges were framed against the accused persons under Sections 452, 323/ 34 I.P.C. The accused denied having committed the said offences and claimed trial.

The prosecution examined P.W. 1 Amrit Singh, P.W. 2 Smt. Samaia, P.W. 3 Shakuntala, P.W. 4 Dr. Anil Kumar and P.W. 5 S.I. Shivram Singh. In the statement under Section 313 Cr.P.C. the accused denied the offences having been committed and produced D.W. 1 Dr. V. Kumar in defence.

On perusal of the evidence of the parties, the learned trial court convicted all the accused under Sections 452, 323/ 34 I.P.C. Accused Khushiram was sentenced to undergo six months and three months rigorous imprisonment under Sections 452 and 323/ 34 I.P.C. respectively. Accused Charani, Rajpal and Rambhool were sentenced to undergo six-six months imprisonment under Sections 452 and 323/ 34 I.P.C. respectively as also each of them were directed to pay fine of Rs. 500/- with defaulting clause.

Feeling aggrieved Criminal Appeal No. 88 of 1987 was filed in which the conviction of the revisionist was maintained but the sentence awarded by the learned Magistrate under Section 452 I.P.C. was reduced from six months to three months and all the appellants were sentenced to pay a fine of Rs. 500/- under Section 323/ 34 I.P.C. with default stipulation against which order the present criminal revision has been preferred.

Revisionist no. 2 Rajpal and revisionist no. 3 Khushi Ram died during the pendency of the revision, hence, the revision is abated as against revisionist nos. 2 and 3.

In the year 1985, Charni was 42 years of age and Rambhool was 35 years of age. Thus, presently Charni is above 70 years of age and Rambhool is about 60 years of age and about 29 or 30 years have passed since the date of occurrence.

I have perused the evidence of the prosecution and find that the evidence of the prosecution witnesses is clearly cogent and there is no illegality in appraisal of the evidence by the courts below. But, there is nothing on record to show why the provision of Section 361 Cr.P.C. or the Probation of Offenders Act was not taken recourse to by the learned trial court as also the appellate court. Section 360 of the Cr.P.C. relates to order to release on probation of good conduct or after admonition, which reads as under:-

"(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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:

Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by subsection (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code punishable with not more than two years'' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law:

Provided that the High Court or Court of Session shall not under the sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehensions.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958, (20 of 1958) or the Children Act, 1960, (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders."

Section 361 Cr.P.C. provides that if the trial court chooses not to give the benefit of Probation of Offenders Act, it shall record reasons for not doing so. Section 361 of the Cr.P.C. reads as under:-

"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 provisions of the Probation of Offenders Act, 1958 (20 of 1958), or

(b) a youthful offender under the Children Act, 1960 (60 of 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."

Thus, the trial court and the appellant court both have erred in not taking recourse to the provision of Section 360 Cr.P.C. and not assigning any reason as has been specified in Section 361 Cr.P.C. There is also no reason why the learned trial court and the appellate court did not think of granting probation to the accused persons under the Probation of Offenders Act.

In the circumstances of the case, I do not think that any useful purpose will be served in sending both the accused, namely, Rambhool and Charni, who are now aged about 60 and above 70 years respectively, in jail. Since the period of 30 years have passed, therefore, in the given circumstances of the case, the conviction of the revisionists is liable to be confirmed but the sentence needs to be modified accordingly.

Accordingly, the revision is partly allowed. the sentence of the revisionists, namely, Charni and Rambhool is confirmed. The revisionists shall get the benefit of Section 4 of the Probation of Offenders Act, and in stead of sentencing them to suffer imprisonment as stated in the opening lines of the Judgment, they shall file two bonds to the tune of Rs. 20,000/- coupled with personal bonds stating that they shall keep peace and not commit any offence during the period of one year. If there is breach of any of the aforesaid conditions, they will be subjected to undergo sentence before the Magistrate on notice as per Rules. The aforesaid bonds be filed by the revisionists within two months from the date of Judgment.