Mukesh Gupta and Others vs State of Madhya Pradesh

Pritinker Diwaker, J.—The present appeal arises out of the judgment and order dated 2-8-1996 passed by the Special Sessions Judge, Jashpurnagar Raigarh in Special Case No. 9/96 convicting the accused/appellants for the offence punishable under sections 323/34 and 506 Part-II IPC and sentencing them till rising of the Court and fine of Rs. 1,000,, in default of fine to further undergo SI for three months on both counts. Brief facts of the case are that on 22-8-95, FIR (Ex.P/5) was lodged by Gyanendra (P.W. 7) alleging that on 21-8-95 at about 8.00 p.m. he was working as gardener in the Government Nursery, Duldula and was assigned the work of taking care of the said nursery during night along with Budhram-watchman (P.W. 1). He has alleged that on 21-8-95 at about 8.00 p.m. after locking the gate of the nursery they sat in the verandah and at that time four persons came there and asked for the whereabouts of one Sidar, Manager of the nursery to which they replied that he was not there. It is further alleged that thereafter they demanded the key of the office and when they refused to give the same, the accused persons assaulted them with hand, fists and clubs. It is also alleged that they threatened him for life and on account of the said maarpeeth, Gyanendra sustained injuries on his cheek and throat whereas Budhram on his back. After narrating the incident, the complainant had named the accused/appellants. Based on this FIR, offence under sections 294,353, 506 and 323 IPC and section 3(1)(v) of the SC/ST (Prevention of Atrocities) Act was registered against the accused/appellants. After investigation, challan was filed on 26-12-95 under sections 353, 323, 254, 506 and 34, IPC and 3(1)(x) of the SC/ST (Prevention of Atrocities) Act.

So as to hold the accused/appellants guilty, the prosecution has examined 10 witnesses. Statement of the accused/appellants were also recorded u/s 313 of the Cr.P.C. in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, one defence witness has also been examined.

After hearing counsel for the parties, the trial Judge has acquitted the accused/appellants u/s 3(1)(v) of the SC/ST (Prevention of Atrocities) Act and also under sections 353 and 294 of the Indian Penal Code but has convicted and sentenced them for the offence under sections 323 and 506-II IPC. Hence this appeal.

Contention of Shri Sharma, counsel for the appellants is that Budhram (P.W. 1) and Gyanendra (P.W. 7) have not made any specific allegation against the appellants and it is complainant Gyanendra (P.W. 7) who started quarrelling with the accused/appellants which has been supported by Budhram also. He further submits that there was no intention on the part of the accused/appellants to assault either Gyanendra or Budhram. He submits that the incident had taken place on the spur of moment as the sister of the accused/appellant Mukesh was being teased by Sidar and they were searching for him who had taken shelter in the said nursery. It has also been argued that the appellants No. 1, 2 and 4 are the reputed businessmen of their town whereas appellant No. 3 Rajeev Sharma is working as Panchayat Inspector and if this Court comes to the conclusion that the appellants are guilty of committing the offence under sections 323/34 and 506 Part-II IPC, the benefit of the Probation of Offenders Act, 1958 be given to them.

On the other hand, State counsel supports the impugned judgment and submits that the conviction of the accused/appellants is in accordance with law.

Heard counsel for the parties and perused the record.

Gyanendra (P.W. 7) lodger of the FIR, in his court statement has stated that on the date of incident, he was posted as gardener and Budhram (P.W. 1) was working as Chowkidar at Government Nursery Duldula. He has stated that after locking the main gate when he and Budhram were sitting in the verandah, accused/appellants came there and asked the whereabouts of Surajbhan Sidar and when they declined for that, they asked for the key of the office and on refusal thereof, they assaulted them with hands and clubs. It is further alleged that the appellants were repeatedly asking as to where he was hiding. The statement of Gyanendra has been duly supported by Budhram (P.W. 1) and Anantram (P.W. 2). Dr. S. Toppo (P.W. 4) is the witness who had medically examined the victim Gyanendra Singh (P.W. 7) vide Ex.P/1 has noticed following injuries on his body:

i) Diffused swelling, tenderness over right side of face, reddish in color size 3" x 2"

ii) Diffused swelling, tenderness over left side of face size 3" x 2" and reddish in color

iii) Diffused swelling, tenderness over left side of neck reddish in color size 2" x 1 1/2

This witness had also examined the victim Budhram (P.W. 1) vide Ex.P/1-A has noticed following injuries on his body:

i) Contusion, diffused swelling over left forearm on dorsal at side transversely size 2 1/2" x 1"

ii) Diffused swelling over left side of parietal region

iii) Diffused swelling, tenderness, abrasion over right side of face size of swelling 2" x 2" reddish colour and abrasion size 1/2" x 1" and superficial

iv) Diffused swelling, tenderness over left side of face size 2 1/2" x 2" reddish color

The statement of the complainant and injured Gyanendra Singh (P.W. 7) and Budhram (P.W. 1) has been duly supported by Dr. S. Toppo (P.W. 4), and proved by other witnesses including the investigating officer (P.W. 9). Niranjan Sai (D.W.-1) Sarpanch of gram panchayat Sirim Kela has stated that the appellants Mukesh and Dinesh Gupta had approached him by saying that the sister of the accused/appellant Mukesh was teased by one Sidar and he had also asked them to bring said Sidar so that action can be taken after his reply. Thus, this Court is of the considered view that the finding arrived at by the Court below is strictly in accordance with law and there is no reason to take a different view on the basis of material available on record and acquit the accused/appellants.

It has been argued by Shri Sharma that the accused/appellants be released on probation under the Probation of Offenders Act, 1958. He submits that the said request was made before the trial Judge also but the same was refused by the Court below considering the growing crime rate in the society.

Having regard to the circumstances of the case including the nature of offence, the reason for which the incident had taken place, the fact that they were the first offenders and also keeping in view the provision of section 4 of the Probation of Offenders Act, it is expedient to release them on probation by this Court. To have ready reference, section 4 of the Probation of Offenders Act, reads as under:

Section 4. Power of Court to release certain offenders on probation of good conduct --(1) 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.

The above section empowers the Court to release the convicted person on his entering into a bond with or without sureties on probation when he is found guilty of committing of any offence, not punishable with death or imprisonment for life. For exercising the power which is discretionary, the Court has to consider the circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the accused u/s 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers u/s 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers u/s 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage.

Considering the facts and circumstances of the case, it is apparent that the incident had occurred on the spur of moment as the accused/appellants were searching for one Surajbhan Sidar who had misbehaved and teased the sister of accused/appellant No. 1. It also emerges that the accused/appellants were under the impression that said Sidar was given shelter by the complainants. There is no material on record to indicate that the appellants have any previous conviction. In the absence of any such evidence, this Court treats the appellants as first offenders. Having regard to the aforesaid circumstances and taking into consideration the overall view of the matter, this Court is of the view that the accused/appellants are entitled for the benefit u/s 4 of the Probation of Offenders Act. The conviction of the accused/appellant under sections 323/34 and 506-II IPC is confirmed. It is directed that they be released on probation on their entering into a bond for Rs. 25,000 each within a period of five weeks from today before the District Judge, Jashpurnagar.