Sukhdeen Lodhi vs State Of Madhya Pradesh

This Criminal Revision Under Section 397/401 of Cr.P.C. has been preferred by the petitioner being aggrieved by the judgment dated 02.05.2019 i n Criminal Appeal No.159/2018 passed by learned IInd A.S.J. District-Tikamgarh whereby the Court partly allowed the appeal by affirming the conviction and modifying the sentence up till the rising of the Court in place of 01 year of Simple imprisonment. The Appellate Court enhanced the fine amount as Rs.2000/- in place of Rs.1000/-.

As per prosecution case, on 28.03.2012, complainant-Kashibai lodged the FIR stating therein that at about 06:30 pm, petitioner/accused along with other co-accused came to her house and abused her. Thereafter, when she was going to house of Deshraj (brother-in-law of complainant), on the way the petitioner/accused and other co-accused assaulted the complainant. The petitioner/accused armed with axe and assaulted the complainant on her head whereas co-accused Rambaksh and Dayal Lodhi assaulted her with wooden sticks which caused injuries to her right eye and back respectively. Thereafter, the police has registered the FIR and filed the charge-sheet before the concerning Court. The accused persons abjured their guilt and thus the trial Court proceeded to take evidence. The trial Court found the accused persons guilty for the offence punishable under Section 324/ 34 of the IPC and sentenced them to undergo S.I. for 1 year with fine of Rs.1000/- to each. Being aggrieved, all the accused persons preferred an appeal before IInd ASJ Tikamgarh in which the appellate Court affirmed the conviction but modified the sentence enhancing the fine amount as mentioned above. The present appeal has been preferred by applicant/accused-Sukhdeen Lodhi.

Learned counsel for the petitioner precised his argument to the extent o f benefit of Section 12 of Probation of Offenders Act, 1958 (hereinafter referred as Act, 1958) submitting that petitioner is government teacher and awarded sentence will adversely affect his career. He further submits that during pendency of appeal, petitioner and complainant had arrived at compromise but the Appellate Court has rejected the same for the purpose of recording acquittal. However, the Appellate Court considered the same while imposing sentence. Petitioner is a first offender having no criminal past, in such circumstances, the appellate Court ought to have been given the benefit of Section 12 of Act 1958 but the Appellate Court did not do so. In support of his contention, he relied on the order passed by Hon'ble Supreme Court in the case of Rajbir Vs. State of Haryana report in 1985 (Supp) SCC 272.

On the other hand, learned P.L. for the respondent-state opposes the same.

On perusal of record, it is apparent that the learned trial Court found the petitioner guilty for the offence punishable under Section 324 read with Section 34 of the IPC and sentenced him to undergo S.I. for 01 year with fine of Rs. 1000/-. The Appellate Court i.e. IInd ASJ Tikamgarh has affirmed the conviction but modified the sentence enhancing the fine amount as mentioned in above paras. During pendency of appeal, the petitioner and complainant had entered into compromise but vide order dated 02.05.2019, the Appellate Court has rejected the same, however, while passing the final judgement in appeal, the Court has considered the effect thereof in imposing the sentence lesser side. Since the learned counsel for the petitioner precised his argument only to the extent of benefit of Section 12 of Act 1958, hence, I do not find a n y reason to interfere in the finding of conviction passed by learned Appellate Court. Accordingly, the finding of Appellate Court regarding conviction to the petitioner is hereby affirmed.

So far as, sentence part is concerned, the learned counsel for the petitioner prays to apply the provisions of Act 1958. Section 4 of Act 1958 prescribes provision to release of Offenders on probation of good conduct. Section 4 of Act 1958 is also reproduced hereinunder:-

"(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."

In the case of Rajbir (supra), passed by Hon'ble Supreme Court and Santosh Vs. State of M.P., 2010 (3) MPHT 55 and also Hanumant Singh Vs. State of M.P., 2016 (2) MPLJ 652 passed by this High Court, the view has been taken by the Court that offender be released on probation of good conduct under Section 4 of Act 1958 having regard to the circumstances of the case, nature of offence and character of the accused.

Here in the case, it is found that the parties had resolved their dispute amicably however, the Appellate Court did not allow their compromise petition. The petitioner is government teacher having no criminal past and he is a first offender. Learned counsel for the petitioner submits that the petitioner will maintain peace and good behaviour for future. The sentence awarded by the trial Court shall affect the career of petitioner if probation of Section 12 of Act 1958 is not granted.

Considering the circumstances of the case including the nature of the offence and character of the offender, I am inclined to give the benefit of Section 4 of Act 1958 to release him on probation of good conduct instead of sentencing him subject to execution of personal bond for maintaining peace and good behaviour for a period of 01 year. Accordingly, the sentence passed by the Appellate Court is hereby set -aside.

T h e petitioner be released  on probation subject to  furnishing a personal bond in sum of Rs.5000/ within a period  of 3 months from today for maintaining peace and good behaviour for a period of 01 year. He shall also refrain himself to getting into undesirable activity by the law in future.

The whole deposited fine amount shall be given to victim of the case as compensation.

Conviction passed by learned Appellate Court shall not affect service career of the petitioner in view of Section 12 of the Probation of Offenders Act, 1958.

Accordingly, this petition is disposed off.