Laxman Singh vs State Of Uttarakhand

R. C. Khulbe, J

This criminal appeal has been filed under Section 374 (2) against the judgment and order dated 30.09.2005 passed by the learned Additional Sessions Jude/ VIth Fast Track Court, Dehradun in Session Trial No.109 of 2004, State Vs. Laxman Singh whereby the appellant was convicted under Section 25 of Arms Act sentencing him to undergo rigorous imprisonment for the period of 1 ½ (one and half) years along with a fine of Rs.1,000/- (Rupees One Thousand Only).

Brief facts of the case are that on 02.02.2004 while Ishwar Singh PW-1 and his friend Sonu Jaiswal PW-3, were standing at Bhaniyawala Thanu T-Point at about 7 p.m. accused Montu @ Malender Singh, Laxman Singh, Vicky @ Vikas and Punna Chauhan came and started abusing and fired gun shots on Ishwar Singh and one of the bullet shots hit Sunil Saini and he sustained injuries due to gun shot. The accused ran away from the spot.

After completion of the investigation, charge sheet was filed against the accused persons under Sections 307 and Section 504 IPC read with Section 34 IPC. During the investigation English Pistol was recovered from the possession of accused Laxman Singh and a separate Case Crime No.18 of 2004 under Section 25 of Arms Act was registered against him and after completing the investigation a charge sheet under Section 25 of Arms Act was filed.

In order to prove its case the prosecution examined as many as nine witnesses. PW1 Ishwar Singh, PW2 Sunil Saini (injured), PW3 Sonu Jaiswal, PW4 H.C. Sunil Kumar, PW5 Dr.H.K. Johri, PW6 Constable Clerk Jaswant Singh, PW7 Constable Rambir Singh, PW8 S.I. Vijay Chand Gussain and PW9 S.I. Vedpal Tomar.

PW1 Ishwar Singh, PW2 Sunil Saini (injured) and PW3 Sonu Jaiswal did not support the prosecution story.

On the basis of evidence learned Additional Sessions Jude/ VIth Fast Track Court, Dehradun acquitted accused Montu @ Malender Singh, Laxman Singh, Vicky @ Vikas and Punna Chauhan under Sections 307 and 504 IPC read with Section 34 IPC but convicted accused Laxman Singh under Section 25 of Arms Act.

It is pertinent to note here that no appeal was filed against the acquittal order passed under Sections 307 and 504 IPC read with Section 34 IPC.

Learned senior counsel for the appellant has vehemently argued that appellant Laxman Singh is the first-time offender and was sentenced to undergo rigorous imprisonment for a period of one and half year, therefore, 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-Laxman Singh, and admitted that the appellant is a first-time offender.

As per the records, when the injured was standing nearby the place of alleged incident, accused Montu @ Malender Singh, Laxman Singh, Vicky @ Vikas and Punna Chauhan came and started abusing Ishwar Singh PW-1 and his friend Sonu Jaiswal PW-3 and fired gun shots on Ishwar Singh and one of the bullet shots hit Sunil Saini PW2 (injured) and he sustained injuries due to gun shot. Although, he turned hostile and did not support the prosecution story, however, the prosecution has been able to prove the recovery of the pistol from accused Laxman Singh beyond any reasonable doubt.

From the evidence, I am of the view that the prosecution has proved the case beyond any reasonable doubt. From the evidence it is clear that pistol was recovered from the accused which fall under the definition of Section 25 Arms Act. There is clinching evidence against the appellant, hence, no illegality or irregularity is found in the findings recorded by learned Additional Sessions Jude/ VIth Fast Track Court, Dehradun in Session Trial No.109 of 2004, State Vs. Laxman Singh whereby the appellant was convicted under Section 25 of Arms Act.

As far as the sentence part is concerned, the accused Laxman Singh was awarded sentence him to undergo rigorous imprisonment for the period of 1 ½ (one and half) years along with a fine of Rs.1,000/- (Rupees One Thousand Only).

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 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."

Sections 3, 4 and 5 of the Probation of Offenders Act, 1958 read as under:

"3. Power of court to release certain offenders after admonition - When any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code (45 of 1860), or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under Section 4 release him after due admonition.

Explanation - For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or Section 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 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.

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.

Power of court to require released offenders to pay compensation and costs.-

The court directing the release of an offender under Section 3 or Section 4, may, if it thinks fit, make at the same time a further order directing him to pay-

a. such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and

b. such costs of the proceedings as the court thinks reasonable.

The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of Sections 386 and 387 of the Code.

A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages."

A bare perusal of Section 3 would demonstrate that if a person is found guilty for the offence punishable under Sections 379 or 380 or 381 or 404 or 420 IPC or for any other offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and such person is found to be first time offender, the Court after due admonition, may direct release of such person on probation of good conduct under Section 4 of the Act. Explanation to Section 3 of the Act would demonstrate that previous release on probation shall be treated as previous conviction. Meaning thereby, if such a person has already been released on probation by giving benefit of probation of first offender Act, at any earlier point of time, he cannot seek release on probation for the subsequent offence in subsequent trial. In other words, benefit of the Probation of Offenders Act, 1958 can be extended to the accused once in a life time, if other conditions of Sections 3 and 4 are available.

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 combined reading of Sections 3 and 4 of the Act would reveal that if the offence is punishable for not more than 2 years then release on probation shall be after admonition. However, if 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.

Section 5 of the Act gives powers to the court to direct the offender to pay compensation / costs to the victim, as the court may deem fit.

As per mandate of Section 6 of the Act, if offender is under 21 years of age, he has to be released on probation, if all the conditions of Section 3 and 4 of the Act are found satisfied, unless the court records its satisfaction in writing that release on probation would not be desirable, considering the nature of the offence as well as character of the offender.

As per Section 11 of the Act, powers as provided under Sections 3, 4 and 5 of the Act may be exercised by the Appellate or Revisional Court as well.

In the present case the appellant Laxman Singh is a first-time offender. The incident seems to be taken place by chance, that too all of a sudden, and it also appears that the accused had not planned to assault Sunil Saini PW2 in advance and the matter is old one pertaining to the year 2004.

Moreover, injuries on the person of Sunil Saini were not held to be dangerous to life and later on he turned hostile and accordingly the accused persons were acquitted under Section 307 and 504 IPC read with Section 34 IPC and the present appellant/ accused was only convicted under Section 25 of Arms Act and sentenced to undergo rigorous imprisonment for the period of 1 ½ (one and half) years along with a fine of Rs.1,000/- (Rupees One Thousand Only) and a combined reading of Sections 3 and 4 of the Act would reveal that if the offence is punishable for not more than 2 years then release on probation shall be after admonition. Therefore, considering the provision of Probation of Offenders Act, 1958, no useful purpose would be served in keeping the appellant in jail to serve out the remaining sentence. Consequently, he should be released on probation in order to reform himself.

The present appeal, thus, stands disposed of with the direction that the appellant Laxman Singh shall be released on probation for a period of two years on furnishing his personal bond to the satisfaction of the concerned Trial Court with one surety. The Magistrate shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with the law. It goes without saying that if accused/ appellant fails to observe good conduct and behaviour during probation or is found violating any condition imposed by the learned Trial Court, the learned Trial Court shall be at liberty to cancel the bond calling the accused to serve out the remaining sentence. The appellant Laxman Singh shall appear before the Trial Court on 10.07.2019 for compliance.

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