Hari Krishna vs State Of Uttarakhand

R. C. Khulbe, J

This criminal appeal has been filed under Section 374 against the judgment and order dated 24.01.2015 passed by the learned 1st Additional District & Sessions Jude, Haridwar in Session Trial No.29 of 2011, Crime No.265 of 2010, State Vs. Hari Krishna, registered at P.S. Kotwali Haridwar, whereby the appellant was convicted and sentenced under Section 332 of IPC to undergo simple imprisonment for a period of six months along with a fine of Rs.500/- (Rupees Five Hundred Only) and under Section 353 of IPC to undergo simple imprisonment for a period of six months along with a fine of Rs.500/- (Rupees Five Hundred Only).

Brief facts of the case are that on 23.05.2010 Dr. J.S. Chufal, Orthopaedist lodged a written complaint at P.S. Kotwali Haridwar with the allegation that on 23.05.2010 when he went to emergency room in hospital at about 9 a.m. where Dr. H.S. Budhiyal was looking patients and Dr. Himanshu Mishra was on morning duty, a person introduced himself as policeman entered in an unauthorized way into Doctor's rest room. When objection was raised, he assaulted the complainant and Dr. H.S. Budhiyal with stick on hands and heads and used criminal force to deter them from discharging of their duty and also voluntarily caused hurt. Both of them got injured. S.P. Chaumoli, Pharmacist and G.S. Butola, Pharmacist rescued them from the assailant.

On the basis of the information, on 23.05.2010 at 9:35 a.m. Case Crime No.265/2010, under Sections 332, 353 IPC was registered.

During the course of investigation, statements of witnesses were recorded, spot map was prepared and injured were medically examined. After completion of the investigation, charge sheet was filed against the accused person under Sections 333 and 353 IPC.

After taking cognizance on 26.01.2010, learned Chief Judicial Magistrate, Haridwar committed the case to Court of Sessions after complying with the provisions of Section 207 Cr.P.C. and thereafter transferred to the 1st Additional District & Sessions Jude, Haridwar.

On 18.02.2011 charges were framed against the accused under Sections 333 and 353 IPC to which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined as many as seven witnesses, namely, PW1 Dr. J.S. Chufal, PW2 Dr. H.S. Budiyal, PW3 S.P. Chamoli, PW4 Dr. Rajesh Gupta, PW5 G.S. Butola, PW6 Dr. Himanshu Mishra and PW7 SI Rajendra Singh Ashwal.

In addition to the oral evidence, prosecution also produced documentary evidence, information (Ex.Ka-1), X-ray report, supplementary report and X-ray report (Ex.Ka-2, Ex.Ka8), Spot Map (Ex.Ka-9) and permission letter (Ex.Ka-10), Arrest Memo (Ex.Ka-11 and Ka-12), memo of information (Ex.Ka-13), charge sheet(Ka-14), Chick FIR (Ex.Ka-15), photocopy of G.D. (Ex.Ka-16) etc.

After completion of evidence, statement of accused under Section 313 Cr.P.C. was recorded in which he pleaded innocent and denied all the charges levelled against him, however, stated that he never visited to the hospital. He along with his wife had come for holy bath in Ganga and at 11:30 a.m. when they got down at bus stand some persons treated his wife in inappropriate manner. On opposing this, he was beaten. When he went to lodge a complaint, it was not registered instead they were implicated in the present crime.

In defense, the accused produced Radhakrishan and Smt. Sweta wife of Harikrishan as PW1 and PW2. During trial the prosecution could not prove the charge under Section 333 IPC beyond reasonable doubt and the learned trial court later converted the charge into Section 332 IPC.

After considering the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed.

Heard learned Counsel for the parties and perused the entire evidence available on the record.

Mr. Mohd. Safdar, learned Counsel appearing for the appellant-Hari Krishna fairly submits that the conviction of the appellant, as recorded by the Court below under Section 332 and 353 IPC is perfectly justified as per the evidence recorded before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellant may be extended the benefit of being the first-offender and he may be released on probation by giving him the benefit of the Probation of Offenders Act, 1958.

Mr. A.K. Sah, learned A.G.A for the State, admitted that he has not received any report about the criminal antecedents of the appellant-Hari Krishna, and admitted that the appellant is a first-time offender.

In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

"7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."

Section 4 of the Probation of Offenders Act, 1958 read as under:

"4. Power of court to release certain offenders on probation of good conduct

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 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 behaviour: "Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if 5 any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.

The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. 5. The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.

A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.

In the present case the appellant is the first-time offender. The total sentence awarded to the appellant by the trial Court is for six months. The incident seems to have taken place nine years ago. Moreover, injuries on the person of PW1 and PW2 were simple in nature and were not held to be dangerous to life.

Therefore, considering the provisions of the Probation of Offenders Act, 1958, in the opinion of the Court, the appellant should be released on probation in order to reform himself.

The present appeal, thus, stands disposed of. The conviction part of the appellant Hari Krishna u/s 332 and 353 IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellant Hari Krishna shall be released on probation for a period of two years on furnishing a personal bond to the satisfaction of the concerned Trial Court. The Judge concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with law. It goes without saying that if accused/appellant fails to observe good conduct and behaviour during probation, or is found violating any condition, to be imposed, the Court concerned shall be at liberty to cancel the bond after calling the accused-appellant and to proceed in the matter in accordance with law. The appellant Hari Krishna shall appear before the Trial Court on 25.08.2019 for compliance.

Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.