Harkesh Singh And Ors vs State Of Uttarakhand And Ors

R. C. Khulbe, J

This criminal appeal has been filed under Section 374(2) against the judgment and order dated 30.05.2005, passed by the learned Sessions Jude, Udham Singh Nagar in Session Trial No.24 of 2003, Case Crime No.2 of 2002, State Vs. Harkesh Singh & Ors., under Sections 379, 435, 427, 504, 506 IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, registered at P.S. Jaspur, District-Udham Singh Nagar, whereby the appellants were convicted and sentenced each one of them under Section 379 IPC by imposing a fine of 5,000/- (Rupees Five Thousand Only), under Section 435 IPC with rigorous imprisonment for a period of one year and a fine of Rs.500/- (Rupees Five Hundred Only), under Section 427 IPC with a fine of Rs.500/- (Rupees Five Hundred Only) and under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act with rigorous imprisonment for a period of six months and a fine of Rs.1000/- (Rupees One Thousand Only).

Brief facts of the case are that on 16.05.202 the informant-Phool Singh filed an application under Section 156(3) Cr.P.C. in the Court of Chief Judicial Magistrate, Udham Singh Nagar with the allegations that he belongs to Scheduled Caste community while the accused belong to upper caste. On 09.04.2002 at 10 p.m. while the informant was sleeping inside his hut, the accused came along with 40-50 men in two tractor-trolleys and insulted him by using filthy and abusive language and fired a gun shot but the informant escaped. Thereafter, the accused took away the harvested wheat in tractor-trolley and threatened to kill him.

On the basis of the information, an FIR was lodged on 18.05.2002 at 8:15 a.m. After investigation a charge sheet was filed against the accused persons under Sections 379, 435, 427, 504, 506 IPC and Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

On the basis of charge sheet submitted by the I.O., learned trial Court framed charges against the accused persons, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined as many as five witnesses, namely, PW1 Phool Singh, PW2 Hari Singh, PW3 Hardev Singh, PW4 Hari Singh S/o Gannu Singh and PW5 Khyali Ram Tamta.

In addition to the oral evidence, prosecution also brought on record seizure memo (Ex.Ka-1), application filed under Section 156 (3) Cr.P.C. (Ex.Ka-2), Spot Map (Ex.Ka-3), Chick FIR (Ex.Ka-4), Charge sheet (Ex.Ka-5), Copy of General Diary (Ex. Ka-6) which were admitted by the learned counsel for the accused.

After completion of evidence, statement of accused under Section 313 Cr.P.C. was recorded in which they claimed innocence and denied all the charges levelled against them. However, in defense, certified copy of order dated 08.03.2002 passed by Civil Judge(Jr. Divn.), Kashipur in Civil Suit No.180/2000, photocopy of agreement, power of attorney in original and certified copy of Case No.91/2001 has been produced.

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 appellants, 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. Lokendra Dobhal, learned Counsel appearing for the appellants argued that there is no clinching evidence against the appellants Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

From the perusal of the FIR, which was lodged on the basis of the application filed under Section 156(3) Cr.P.C. the only allegation is that the accused used abusive language about his caste but what type of language had been used by the accused on 09.04.2002 is not clearly mentioned in the FIR. Apart from that, as per the FIR the incident took place inside the hut of the informant at 10 p.m. and the hut was constructed in the field of the informant. While as per Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it is clear that intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe must be in any place within public view.

From the evidence on record, it is clear that the occurrence took place inside the hut of the informant-Phool Singh, which was in the field of informant. Apart from that the occurrence took place at 10 p.m. and there is no evidence on record that the place of occurrence was within public view. Since the place of occurrence does not come under the definition as prescribed in the Act, hence, the accused cannot be punished under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is also no evidence on record that the accused used abusive language about the caste of the informant-Phoool Singh. The FIR is silent about it.

In these circumstances, the accused are liable to be acquitted and accordingly acquitted for the offences punishable under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

As regards, to the offences punishable under Sections 379, 435, 427 IPC are concerned, Mr. Lokendra Dobhal, learned Counsel appearing for the appellants fairly submits that the conviction of the appellants, as recorded by the Court below punishable under Sections 379, 435 and 427 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 appellants may be extended the benefit of being the first-offender and they may be released on probation by giving them 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 appellants, and admitted that the appellants are first-time offenders.

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 appellants are the first-time offenders. The maximum sentence awarded to the appellants by the trial Court is for one year to each one of them. The incident seems to have taken place seventeen years ago. Moreover, not even a single injury was reported on the person of informant-Phool Singh and the appellants have already paid the fine imposed by the trial Court.

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

The present appeal, thus, stands disposed of. The conviction part of the appellants u/s 379, 435 and 427 IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellants shall be released on probation for a period of two years on furnishing a personal bond by each one of them 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/appellants fail to observe good conduct and behaviour during probation, or are found violating any condition, to be imposed, the Court concerned shall be at liberty to cancel the bond(s) after calling the accused-appellant(s) and to proceed in the matter in accordance with law. The appellants shall appear before the Trial Court on 27.08.2019 for compliance.

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