Thakur Prasad And Another vs State Of Uttarakhand

R.C. Khulbe, J

This criminal revision, preferred by the revisionist u/s 397/401 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is

directed against the judgment and order dated 07.10.2010 passed by learned Judicial Magistrate, U.S. Nagar (Rudrapur) in Criminal Case No.413 of

2008, State Vs. Thakur Prasad and others, whereby, the Trial Court has convicted the revisionist u/s 452 IPC and sentenced them to undergo six

months’ S.I. with fine of Rs.1,000/- each, and in default in making payment of fine, to undergo one months’ additional S.I.; and they were

further convicted u/s 323 IPC and each of them was sentenced to pay fine of Rs.1,000/-, and in case of default in payment of fine, to undergo 15

days’ additional S.I.; both the sentences were directed to run concurrently.

The appeal bearing CRLA No.153 of 2010, preferred by the revisionists, was dismissed by learned Additional Sessions Judge/ Third FTC, U.S.

Nagar (Rudrapur) vide judgment dated 5.4.2011, which is also under challenge in this revision.

Facts, to the limited extent necessary, are that an application under 156(3) Cr.P.C. was moved by one Gyanti Devi before the concerned Court,

which was allowed on 24.12.2002 and accordingly, the criminal case was registered on 07.01.2003 against the revisionists. It was alleged in the

applicant that on 07.11.2002 at about 5 PM, when her husband was returning from duty, Thakur Prasad, Khushal Prasad, Bhulia, Arif and some

unknown persons surrounded her husband on the way and committed Marpit with him. There were sharp weapons, lathis and dandas in their hands.

When her husband went to Pant Nagar Police Station to lodge the report, all the above accused, taking benefit of absence of her husband, entered her

house and assaulted her with legs, fists, Lathis and Dandas. Khushal and Thakur Prasad were saying that though her husband had gone to lodge

report but nothing would happen as they had good relations with police.

On the basis of this information, Chick FIR was lodged as Crime No.19/2003 under Sections 452, 323, 504 and 506 IPC. After investigation, charge

sheet no.80 of 2003 was submitted in the Court. Accordingly, the cognizance was taken; on 7.6.2005, charges were framed, which they denied and

claimed to be tried.

The prosecution examined as many as eight witnesses. PW1 Gyanti Devi, PW2 Panwari (husband of PW1), PW3 Hari Shanker, PW4 Gopal Singh

(I.O. of case), PW5 Prayag Ram, PW6 Dr. Prabhakar Singh, PW7 K.R. Arya (who recorded the FIR and made entry in G.D.) and PW8 is Anand

Shankar.

After recording the prosecution evidence, statement of accused under Section 313 Cr.PC was recorded. After hearing both the parties, the Trial

Court convicted and sentenced the revisionist, as mentioned in paragraph no.1 of this judgment. Aggrieved by it, the revisionists preferred the appeal

which was also dismissed as per the details given in paragraph no.2 of this judgment. Assailing both the judgments, the present revision has been

preferred by the revisionists.

I have gone through the entire record and perused the evidence produced before the Trial Court. From a perusal of the statements of witnesses,

namely, PW1 Gyanti Devi, PW2 Panwari, PW3 Hari Shanker, PW4 Gopal Singh, PW5 Prayag Ram, PW6 Dr. Prabhakar Singh, PW7 K.R. Arya,

and PW8 Anand Shankar, I have also come to the conclusion that the prosecution has successfully proved the charge against the revisionist beyond

reasonable doubt. There is no illegality in the impugned judgment, since material and substantial evidence is available on record against the revisionists.

The revisionists have rightly been convicted by the Trial Court u/s 452 and 323 IPC and the order of conviction and sentence has also rightly been

upheld by the Appellate Court.

As regards the sentence is concerned, learned Counsel appearing on behalf of the revisionists fairly submitted that the prosecution has successfully

proved the charge against the revisionists and he does not want to argue the revision on merits; the conviction recorded by the trial Court is based on

sound evidence; the revisionists were the Government servants; they have now been retired and getting the retiral benefits; they are old and infirm

persons, thus, and they may be given the benefit of first offenders Act.

Learned Counsel for the State fairly submitted that there is no information against the revisionists regarding the criminal history. Accordingly,

benefit of first offenders act can be given.

In this regard, the Hon’ble Apex Court in the case of ""Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjolâa€ reported in 2001

SCC (Cri.) 2, 897, in paragraph no.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.â€​

Section 4 of the Probation of Offenders Act, 1958 read as under:

“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 5 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. 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.â€​

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 careful reading of Section 4 of the Act would reveal that if the 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.

In the present case the revisionists are the first-time offenders. The incident seems to have taken place 18 years ago.

Therefore, considering the provisions of the Probation of Offenders Act, 1958, no useful purpose would be served to send the revisionists to jail to

serve out the remaining sentence. Rather, in the opinion of the Court, they should be released on probation in order to reform themselves.

The impugned judgments and orders passed by the trial court and the appellate Court below are hereby affirmed and the present revision, thus,

stands partly allowed. The conviction part of the revisionists â€" Thakur Prasad and Khushal Prasad, under Section 323 and 452 IPC, is left intact.

However, as far the sentence part is concerned, it is directed that the revisionists be released on probation for a period of six months on furnishing a

personal bond to the satisfaction of the concerned Trial Court with one surety. The fine, as imposed by the Trial Court, shall be deposited by the

revisionists within a period of one month, if not already deposited, from the date of receipt of this order, to the court concerned. The concerned

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/ revisionists fail to observe good conduct and behaviour during probation or are found violating any condition, to be imposed; the Court

concerned shall be at liberty to cancel the bonds calling the accused-revisionists to serve out the remaining sentence. The revisionists Thakur Prasad

and Khushal Prasad shall appear before the Trial Court on or before 30.09.2020 for compliance.

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