Kallu and Others vs State of U.P.

Vedpal, J.—This revision u/s 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 and ST Act, Barabanki in Criminal Appeal No. 28 of 1999 : Kallu and two Ors. v. 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 v. Kallu convicting and sentencing the appellants for the offence punishable u/s 323/34 to undergo simple imprisonment for a period of six months, for the offence punishable u/s 324/34 to undergo simple imprisonment for a period of six months, for the offence punishable u/s 504 I.P.C. to undergo simple imprisonment for a period of six months and for the offence punishable u/s 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 u/s 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 u/s 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 judgment 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.