Shiv Lal And Others vs State

Santosh Rai, J

Heard Sri Lalit Prakash, Sri Yashasvi Shukla, learned counsel for the appellants; Sri Purushottam Maurya, learned AGA for State and perused the materials on record including the trial court records.

Four accused appellants have filed the instant appeal in the year 1988 but when the matter is taken up for hearing today we are informed that one of them namely Mani @ Mayaram has already died, hence, the appeal has already been abated accordingly. The appeal now survives only at the instance of appellant nos.1,3 and 4. The appellants are aggrieved by the judgment and order dated 6.10.1988, passed by III Additional Sessions Judge, Moradabad in Sessions Trial No.781 of 1986 (State Vs. Shiv Lal & Ors.), arising out of Case Case No.138 of 1986, under Sections 308, 304, 323 IPC, Police Station Asmoli, District Moradabad; whereby they have been convicted and sentenced to one year rigorous imprisonment under Section 323/34 IPC.

In this case, the first informant is PW-1, Vijay Pal, who is the son of the deceased Kalua. He submitted a written report (Ex.Ka.1) scribed by Nandram, stating therein that on 12.8.1986, he alongwith his father Kalua (deceased) and daughter Kusum was watering his maize field. All the four accused persons came armed with lathis and asked the deceased Kalua that they would water their field first and when the deceased resisted, the accused persons attacked the deceased with lathis. During rescuing his deceased father, he also sustained injuries. On the basis of this written report, FIR was registered under Section 308, 323 IPC as Case Crime No.138 of 1986 at Police Station Asmoli, District Moradabad.

The investigation started, and statements of witnesses were recorded. After investigation, charge sheet was filed under Sections 304, 308, 323 IPC. The Magistrate took cognizance of the case and committed it to the Court of Sessions, where it was registered as Sessions Trial No.781 of 1986 (State of U.P. vs. Shiv Lal & Ors.), arising out of Case Crime No.138 of 1986, under Sections 308, 304, 323 IPC. Charges were framed against the accused persons. They denied the charges and demanded trial.

To prove its case, the prosecution produced the following documentary evidence:-

"1. Written Report dated 11.8.1988 (Ex.Ka.1)

Postmortem report dated 30.8.1988 (Ex.Ka.2)

Chik Report dated 8.9.1988 (Ex.Ka.3)

G.D. Entries dated 8.9.1988 (Ex.Ka.4,5)

Site Plan dated 8.9.1988 (Ex.Ka.6)

Charge-sheet dated 8.9.1988 (Ex.Ka.7)

Letter RI dated 8.9.1988 (Ex.Ka.8)

Letter SI for P.M. dated 8.9.1988 (Ex.Ka.9,10)

Sealed Sample dated 8.9.1988 (Ex.Ka.11)

Deadbody Photo dated 8.9.1988 (Ex.Ka.12)

Deadbody Challan dated 8.9.198 (Ex.Ka.13)

Panchayatnama dated 8.9.1988 (Ex. Ka-14)

Injury Report dated 8.9.1988 (Ex. Ka-15)"

Apart from the documentary evidence, the prosecution also submitted oral evidence. The witnesses examined, Vijay Pal (PW-1), Ganga Saran (PW-2), Nandram (PW-3), Dr. R.D. Gupta (PW-4), S.I. S.N. Sharma (PW-5), in support of the prosecution case.

P.W.-1 is the injured witness, who is the son of deceased Kalua. This witness stated in his statement before the court that all the accused persons were having sticks (lathi) in their hands and they caused injuries to him as well as his father.

P.W.-2 and P.W.-3 are Ganga Saran and Nandram (brother of deceased Kalua), who were present in their fields which were near the place of occurrence and on hearing commotion they reached at the spot and saw that four accused persons were assaulting the injured and deceased.

P.W.-4 is Dr. R.D. Gupta, who proved the ante-mortem injuries and postmortem report of the deceased. This witness stated that age of the deceased was 55 years and the deceased sustained two injuries on his body. This witness opined that injury no.2 may be caused due to falling down.

P.W.-5 is S.I. S.N. Sharma, who proved chik FIR and general diary entries as Exs.Ka.3,4,5 and also proved the site plan as Ex.Ka.6 and charge-sheet as Ex.Ka.7.

Learned counsel for the appellants without going into the merits of the case, argued only on the point of sentence. Submission is that in the event this Court arrives at a finding of guilt, it is prayed that the accused-appellants be extended the benefit of probation, considering their advance ages.

Per contra, learned AGA submits that the trial court has rightly held the accused appellants guilty and awarded rigorous sentence of one year in the present case on the basis of reliable evidence available on record.

In this case, four accused persons are said to be involved against whom charge under Sections 304, 323/34 were framed. P.W.-1 and P.W.-2 are witnesses of fact. P.W.-1 is the injured witness, who is the son of deceased Kalua. This witness stated in his statement before the court that all the accused persons were having sticks (lathi) in their hands and they caused injuries to him as well as his father (deceased). P.W.-2 Ganga Saran, who was present in his field which was near the place of occurrence and on hearing commotion, reached at the spot and saw that four accused persons were assaulting the injured and deceased.

The trial court opined that statement of PW-1 is reliable and there are no material contradictions in his statement and on the basis of statement of PW-1 and medical evidence convicted the accused persons under Section 323/34 IPC but P.W.-2, who reached on the spot after hearing commotion and saw the accused persons assaulting the injured and deceased with sticks which indicates that the statement of P.W.-2 comes within the category of 'res gestae'. If the testimony of P.W.-2 Ganga Saran is accepted to the extent that he saw the accused persons assaulting P.W.-1 and the deceased at the place of occurrence with sticks, then the chain of circumstances clearly points towards the involvement of the accused persons in the commission of the offence. Such conduct is relevant under Section 8 of the Evidence Act, and the contemporaneous utterance of P.W.-2 forms part of the same transaction and is admissible under Section 6 of the Evidence Act as 'res gestae'. Section 6 of Indian Evidence Act, 1872 is extracted hereinafter:-

"This section incorporates the principle of res gestae, which is a kind of an exception to the rule against hearsay as illustrated in Illustration (a) to this section. The word "hearsay" is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else. There are four illustrations to the section. In the first illustration, A is accused of the murder of B, by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

Even a hearsay statement is relevant if it forms a part of the same transaction as the fact-in-issue (occurrence). Unless any fact or statement forms a part of the same transaction, it will not be admissible in evidence. For example, utterances just before, during or immediately after the commission of a crime, spontaneous outbursts of bystander or of accused or victim forming part of the same transaction are admissible."

Thus, this Court finds that the statement of PW-2 Ganga Saran is admissible in light of principle of res gestae and admissible under Section 6 of the Evidence Act, but the trial court has raised doubt on the testimony of PW-2, which is not correct, as per law. Thus, this Court finds no material contractions in the statement of PW-2 also.

The trial court opined that no specific role has been assigned regarding the fact that who specially caused injury to the deceased Kalua due to which he died. Four accused persons are said to be involved in this incident and their presence and involvement is not doubted by the trial court on the basis of statement of PW-1. Since specific involvement of accused appellants is specified in terms of Section 34 IPC, the accused appellants should also be held guilty under Section 304 IPC on the basis of very same evidence/material.

The principle as enshrined under Section 34 IPC is extracted below:-

"The underlying principle is a well-recognized canon of criminal jurisprudence that the courts cannot distinguish between co-conspirators, nor can they inquire as to the part taken by each in the crime. Where parties go with a common purpose to execute a common object, each and everyone becomes responsible for the acts of each and every other in execution and furtherance of their common purpose; as the purpose is common so must be the responsibility. Section 34 provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The common intention can be formed at the spur of the moment (eo instanti) The pre-arranged plan need not be elaborate nor is a long interval of time required. It can arise and be formed suddenly in other words there is no rule that common intention pre-supposes prior-consert it can be formed previously or in the course of occurrence and on the spur of the moment. The plan may develop on the spot during the course of commissioning of offence but the plan must preceed that constitute the offence. Common intention is question of fact although it is subjective it may be inferred from the facts and circumstances. For the purpose of common intention it is required 'to participate' meaning thereby to take part and part in an act may be taken by doing something which advances or hold the common cause or achievement. Beside pre-planning what is required is an element of physical presence at the scene of occurrence coupled with the actual participation which can be a passive character."

Furthermore, the principle as enshrined under Section 134 of the Evidence Act is, no particular number of witnesses shall in any case be required for the proof of any fact. How may witnesses are necessary for the proof is wholly left to the court. As a general rule a court can act may act on the testimony of a single witness, though in-corroborated. One credible witness outweighs the number of other witnesses of indifferent character. Admittedly the public are generally reluctant to come forward to depose before the court it is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence has not been examined nor is it proper to reject the case for want of corroboration by independent witness. The Apex Court has in number of cases sustained conviction on the basis of testimony of sole witness.

The court has erroneously held the accused appellants are guilty of offence under Section 323/34 IPC only, which indicates that the trial court has ignored material evidence and established legal principles of joint liability. The trial court also opined that no enmity was found between the accused appellant and the informant and no chance of false implication. Four injuries are said to be sustained to the injured and the deceased. The deceased died due to one of the grievous injury sustained on his vital part (head). Thus, it appears that the reasons given by the trial court regarding acquittal of accused appellants under Section 304/34 IPC is not legally just and proper on the basis of the facts and circumstances of this case and evidence available on record.

The trial court has not doubted the testimony of PW-1 who stated that all the accused persons were involved in offence of culpable homicide of his father Kalua and causing injuries to him and his father also. The presence of all the accused persons at the place of occurrence has not been doubted. The medical evidence also supports the prosecution version regarding injuries sustained by the deceased and injured witness. It also further transpires from the evidence on record that all the accused persons acted conjointly and assaulted the deceased and injured with lathis/stick. Therefore, their liability has been rightly considerd with aid of Section 34 IPC, but trial court has committed gross illegality by way of acquitting the accused persons under Section 304/34 IPC. Thus, the trial court has committed material illegality and has overlooked the evidence and established legal principle.

Learned AGA informs that no any criminal appeal/revision etc is pending against impugned order to enhance the punishment or acquittal order passed by the trial court under Section 304/34 IPC.

Sections 4 and 5 of the Probation of Offenders Act, 1958 are reproduced below for ready reference:-

"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:

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.

(2) 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.

(3) 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.

(4) 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.

Power of court to require released offenders to pay compensation and costs.-(1) 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.

(2) 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.

(3) 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."

In Sitaram Paswan and Another vs. State of Bihar, (2005) 13 SCC 110, the Apex Court has held as under:

"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 under Section 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 under Section 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 under Section 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 the 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 and also by this Court while hearing the appeal under Article 136 of the Constitution."

In Lakhanlal alias Lakhan Singh vs. State of Madhya Pradesh, (2021) 6 SCC 100, the Apex Court held as under:

"10. A three-Judge Bench of this Court in Rattan Lal v. State of Punjab, AIR 1965 SC 444, while examining the provisions of the 1958 Act held that in case the offenders are below 21 years, an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, it is not desirable to deal with them under Sections 3 and 4 of the 1958 Act but in respect of offenders who were above age of 21 years, the Court has absolute discretion to release such offenders either after admonition or on probation of good conduct. The Court held as under:

"4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

This Court in Jugal Kishore Prasad v. State of Bihar, (1972) 2 SCC 633 explained the rationale of the provision as to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The Court held as under:

"6. The Probation of Offenders Act was enacted in 1958 with a view to provide for the release of offenders of certain categories on probation or after due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that youthful offenders should not be sent to jail, except in certain circumstances. Before, however, the benefit of the Act can be invoked, it has to be shown that the convicted person even though less than 21 years of age, is not guilty of an offenec punishable with imprisonment for life. This is clear from the language of Section 6 of the Act."

In Mohd. Hashim vs. State of Uttar Pradesh and Others, (2017) 2 SCC 198, the Apex reiterated the exercise of discretionary power of the court under Probation of Offenders Act as under:-

"21. In this regard, it is also seemly to refer to other authorities to highlight how the discretion vested in a court under the PO Act is to be exercised. In Ram Parkash v. State of H.P., (1972) 4 SCC 46, while dealing with Section 4 of the PO Act in the context of the Prevention of Food Adulteration Act, 1954, the Court opined that the word "may" used in Section 4 of the PO Act does not mean "must". On the contrary, as has been held in the said authority, it has been made clear in categorical terms that the provisions of the PO Act distinguish offenders below 21 years of age and those above that age and offenders who are guilty of committing an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. Thereafter, the Court has proceeded to observe:

"7.... While in the case of offenders who are above the age of 21 years. absolute discretion is given to the court to release them after admonition or on probation of good conduct in the case of offenders below the age of 21 years an injunction is issued to the Court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act. (Rattan Lal v. State of Punjab, AIR 1965 SC 444 and Ramji Missar v. State of Bihar, AIR 1963 SC 1088.)"

Be it noted, in the said case, keeping in view the offence under the Prevention of Food Adulteration Act, 1954, the Court declined to confer the benefit under Section 4 of the PO Act.

We have referred to the aforesaid authority to stress the point that the court before exercising the power under Section 4 of the PO Act has to keep in view the nature of offence and the conditions incorporated under Section 4 of the PO Act. Be it stated in Dalbir Singh v. State of Haryana, (2000) 5 SCC 82, it has been held that Parliament has made it clear that only if the Court forms the opinion that it is expedient to release the convict on probation for the good conduct regard being had to the circumstances of the case and one of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". The Court has further opined that though the discretion has been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. Explaining the word "expedient", the Court held thus:

"9. ... The word "expedient" had been thoughtfully employed by Parliament in the section so as to mean it as "apt and suitable to the end in view". In Black's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabril, (1975) 1 SCC 138, a two-Judge Bench of this Court has considered the word "expedient". The learned Judges have observed in para 21 thus:

21.... Again, the word "expedient" used in this provision, has several shades of meaning. In one dictionary sense, "expedient" (adj.) means "apt and suitable to the end in view", "practical and efficient": "politic"; "profitable"; "advisable", "fit, proper and suitable to the circumstances of the case". In another shade, it means a device "characterised by mere utility rather than principle, conducive to special advantage rather than to what is universally right" (see Webster's New International Dictionary)'.

It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the PO Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence...". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct."

In Chellammal and Another vs. State represented by the Inspector of Police, 2025 LiveLaw (SC) 461, where the Sessions Judge has acquitted the appellants (mother¬in-law and husband) of the charge under Section 304-B IPC but convicted them under Section 498-A, the Apex Court has held as under:-

"Summing up the legal position, it can be said that while an offender cannot seek an order for grant of probation as a matter of right but having noticed the object that the statutory provisions seek to achieve by grant of probation and the several decisions of this Court on the point of applicability of Section 4 of the Probation Act, we hold that, unless applicability is excluded, in a case where the circumstances stated in subsection (1) of Section 4 of the Probation Act are attracted, the court has no discretion to omit from its consideration release of the offender on probation; on the contrary, a mandatory duty is cast upon the court to consider whether the case before it warrants releasing the offender upon fulfilment of the stated circumstances. The question of grant of probation could be decided either way. In the event, the court in its discretion decides to extend the benefit of probation, it may upon considering the report of the probation officer impose such conditions as deemed just and proper. However, if the answer be in the negative, it would only be just and proper for the court to record ord the reasons therefore."

At present, the accused-appellants are elderly persons, aged more than 60 years. The appeal has remained pending before this Court since the year 1988. No reliable material has been brought this Court to indicate that they are habitual offenders or they have any criminal antecedents. There is nothing on record to show the misuse of liberty during pendency of this appeal. The possibility of reformation cannot be rule out. Furthermore, learned counsel for the appellants has not assailed the conviction on merits but has confined his argument particularly to the question of sentence and prayed for extending the benefit of probation as provided under Section 4 of the Probation of Offenders Act.

Having considered the submissions advanced by the parties and material evidence available on record, this Court is of the considered opinion that the benefit of probation deserves to be extended to the accused-appellants under Section 4 of the Probation of Offenders Act, 1958.

Thus, in view of the above specific facts and circumstances, it would be just and proper to release the accused-appellants on probation. The appeal is, thus, partly allowed with modification in sentence. The conviction of the appellants under Section 323/34 IPC is hereby affirmed. However, the sentence of one year rigorous imprisonment is set aside.

In view of the modification of sentence and release of the appellants on probation, the bail bonds and sureties furnished earlier during trial/appeal shall stand discharged.

Let the accused-appellants Shiv Lal, Omkar and Ratibhan be released on probation under Section 4 of the Probation of Offenders Act, 1958, subject to the following conditions:

(i) The accused-appellants shall execute a 'fresh' personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand) with one surety of the like amount to the satisfaction of the court concerned for a period of one year with an undertaking that they shall maintain peace and good behaviour and will not involve in any criminal activity.

(ii) Invoking Section 5 of the Probation of Offenders Act, each appellant (Shiv Lal, Omkar and Ratibhan) shall pay compensation of Rs.20,000/- (Rupees Twenty Thousand) to the informant/victim within a period of one month from today. In case of death of injured/victim, the appellants shall pay the same to their legal representatives.

(iii) In the event of breach of any of the aforesaid conditions, the accused-appellants shall be liable to undergo the sentence as awarded by the trial court to serve the original sentence.

Trial court shall ensure compliance and seek report from the Probation Officer for supervision.

The appellants are directed to appear before the trial court forthwith to furnish the requisite bonds. In case of default, the trial court shall be at liberty to proceed in accordance with law, including issuance of coercive process.

Let a copy of this judgment be transmitted forthwith to the trial court concerned along with trial court record for compliance.

The trial court is directed to submit its compliance report to this Court within two months of the receipt of this order. Furthermore, the registry is also directed to place the compliance report on record.