Vinay Singh vs State of M.P.

U.C. Maheshwari, J.—On behalf of the appellant-accused this appeal is preferred u/s 374 of Cr. PC being aggrieved by the judgment dated 29-6-1996 passed by IInd Additional Sessions Judge, Bhopal, in Sessions Trial No. 281/1995, convicting him under Sections 304, Part II and 323 of IPC for RI seven years with fine of Rs. 1000/-, in default of depositing the same, further six months'' RI in the earlier count, while three months'' RI in later. The facts giving rise to this appeal in short are that, on dated 21-5-1995 at about 7 o''clock in the morning at Village Undarai, the acquitted co-accused Fateh Singh was abusing with filthy languages to the deceased Prithavi Singh asking him why he is spreading the rumour about him that he married his daughter after obtaining the money. On which, deceased-Prithavi Singh told him that he has not spread such rumour. By the time, the appellant Vinay Singh lashed with stick came there and gave a blow of such stick on the head of Prithavi Singh. Thereafter, said Fateh Singh and his other son Parasram also gave him the blows of stick on the person of Prithavi Singh. During such incident victim Prithavi Singh was also subjected to threat of his life. Due to aforesaid blows of sticks Prithavi Singh sustained the injuries and fell down, on the coming Parwat Singh (P.W. 1), to rescue him then, he was also subjected to blows of sticks by the abovementioned persons and co-accused Sarju Bai. Soon after the incident, said Parwat Singh (P.W. 1), went to the Police Station, Gunaga, and lodged the First Information Report (Exh. P-1), on which the offence of Sections 323 and 307 read with Section 34 of IPC was registered against the appellant and the co-accused Fateh Singh, Parasram and Sarju Bai. After lodging the report, the victims were sent to the hospital where on medical examination their MLC reports were prepared. Looking to the nature of the head injuries of Prithavi Singh, for further treatment he was admitted in the hospital, but in spite long treatment of 13 days, he could not survive and succumbed to such head injury. On carrying out the autopsy of his corpus, alleged head injury was found to be cause of his death and as per further opinion of the doctor, the same could have been caused by hard and blunt object. On completion of the investigation, the appellant and the co-accused named above were charge-sheeted for the offence of Sections 307, 323, 302/34 of IPC.

After committing the case to the Sessions Court on framing the charge against the appellant and other co-accused for the offence of Section 302 of IPC in alternate Section 302 read with Section 34 and Section 323 in alternate Section 323/34 of IPC, they abjured the guilt. On which the trial was held. After recording the evidence on appreciation by acquitting the other co-accused from all charges instead the aforesaid charge of Section 302 of IPC, the appellant was held guilty for the offence of Sections 304, Part II and 323 of IPC and was punished with the abovementioned punishment. The same is under challenge in this appeal.

Shri Imtaiz Hussain, learned appearing Counsel of the appellant after taking me through the record of the Trial Court along with the impugned judgment without challenging the findings of the Trial Court holding guilty to the appellant for the aforesaid offence of Sections 304 Part II and 323 of IPC, has made his limited submissions on two counts. Firstly, he said that keeping in view 19 years age of the appellant on the date of the alleged incident, the benefit of Mandatory provision of Section 6 of the Probation of Offenders Act, 1958 (hereinafter in short ''the Act''), be extended to him. In such background, he said that the appellant did not possess any criminal antecedents except the present matter and the alleged incident was happened without any premeditation in a sudden quarrel. He also said that the findings of the Trial Court on which the prayer for extending the benefit of probation has been refused to the appellant in view of law laid down by the Apex Court in the matter of Chand and Others Vs. State of U.P., , and of this Court in the matter of Mangilal Vs. State of M.P., reported in 1989 Vol. II MP. Weekly Notes, Note 9, is not sustainable. He further said that in case the Court does not found fit to extend such benefit of probation to the appellant then, by adopting the lenient view his awarded jail sentence be reduced upto the period for which he was already suffered in jail by enhancing some amount of fine under the discretion of the Court. According to him, after suffering the judicial custody during trial between 27-5-1995 till 16-10-1995, i.e., four months and 20 days, he was released on bail and he also suffered the awarded jail sentence from 29-6-1996, the date of impugned judgment till passing the order for suspension of his remaining jail sentence by this Court, vide order dated 14-10-1996, i.e., near about three and half months accordingly, he has suffered the jail of 8 months and 6 days out of the awarded jail sentence and prayed to allow the appeal accordingly.

On the other hand, Shri Yogesh Dhande and Shri Rakesh Kesherwani, learned Counsel for the State by justifying the impugned conviction and sentence of the appellant said that the same being based on proper appreciation of the evidence, do not require any interference either for extending the acquittal to the appellant or for extending him the benefit of the Probation of Offenders Act even, there is no scope even to reduce the awarded jail sentence of the appellant by enhancing the amount of fine or by imposing the compensation. It was also argued that looking to the nature of the incident and the manner in which the alleged fatal injury on the head of deceased was caused by the appellant with sticks, the appellant does not deserve for adopting any lenient view in the matter and prayed for dismissal of this appeal.

Having heard, keeping in view their arguments advanced, I have carefully gone through the record of the Trial Court along with the impugned judgment.

Although, the case has not been argued by the appellant''s Counsel to extend the acquittal to the appellant, but in order to do the justice with him, I deem fit to examine the case to find out the probability of extending the acquittal to the appellant. In such premises, on examining the matter, I have not found any perversity, infirmity or anything contrary to the propriety of law in appreciation of the evidence by the Trial Court in giving the finding to hold guilty to the appellant in the aforesaid Sections. So, in such premises, there is no scope in the matter to extend the acquittal to the appellant. Hence, the findings of the Trial Court holding guilty to the appellant for the above-mentioned offence are hereby affirmed.

Coming to consider the prayer of the appellant''s Counsel for extending the benefit of the Probation of Offenders Act to the appellant is concerned, in view of aforesaid cited case of the Apex Court in the matter of Chand (supra), I have found some substance in such prayer. In the matter of Chand and others (supra), while dealing with the question for extending the benefit of the Probation in the matter of Section 304-II of IPC the Apex Court has held as under:--

The question before us is whether and what sentence should be awarded to each of the accused. In so far as the two adult appellant who are above 21 years are concerned, namely, Nanhoo, appellant No. 2, and Maqsood, appellant No. 3, we think that their acts are such as would justify the maximum sentence of 10 years'' rigorous imprisonment. With respect to the other appellants, namely, appellant Nos. 1, 4, 5, 6 and 7, they are all below 21 years and one of them as already noticed by the High Court appellant No. 5, Ashfaq is a mere lad of 12 years. What we have to consider is whether the benefits of Probation of Offenders Act should be given to them. It, however, appears that the Central Act has not been made applicable to the State of Uttar Pradesh. On behalf of the appellants, it is pointed out that there is a local Act applicable to that State, which is, the United Provinces First Offenders Probation Act, 1938. It is not denied that this Act was made applicable Rampur State after it became a part of Uttar Pradesh. Section 4 of the said Act is as follows:--

Power of Court to release certain offenders on probation of good conduct.-

(1) When any person is convicted of an offence not punishable with death or transportation for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct, 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 the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and regular occupation in the place for which the Court acts, or in which the offender is likely to live during the period named for the observance of the conditions:

Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the State Government, which is punishable with imprisonment not exceeding six months, the Court shall take action under this section unless, for special reason to be recorded in writing, it does not consider it proper to do so.

*** *** *** 7. Now that the offence with which the appellants are being convicted falls under the second part of Section 304, IPC, such of them as are under 21 would be entitled to the benefits of the above provision. We think this is a case, in which the appellants who it is admitted are the first offenders, should be released on probation. The learned Advocate for the State contends that it is not known whether any Probation Officers have been appointed for the District of Rampur and as such we should give him an opportunity to ascertain this fact and also that we should call for a report from that officer, if such a person is appointed for that District. We do not think there is any necessity to obtain this information because under the first proviso all that the Court has to be satisfied is that the offender or his surety has a fixed place of abode and regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of that condition. In this case, it would be sufficient if we direct the District Magistrate concerned to conform with the requirements of that provision.

Apart the above, on arising the occasion, this Court has also answered such question in the matter of Mangilal (supra), in which it was held as under:--

The result is that the appeal partly succeeds and is allowed. The conviction of the accused/appellant No. 1 Mangilal u/s 304 (Pt. II)/34 of IPC and sentence of 5 years RI is set aside. His conviction u/s 323/34, IPC is maintained, but the period of sentence of imprisonment is reduced to the period already undergone. He is on bail. He need not surrender. His bail bonds are discharged. The conviction of accused/appellant No. 2 Shambhoo u/s 304 (Pt. II)/34 and Section 323/34, IPC is set aside as also the sentences of 5 years and 4 months RI. Instead, he is held guilty of offence punishable under Sections 304 (Pt. II)/34 and 323, IPC. His sentences of imprisonment of 5 years and 4 months and also set aside. It is ordered that accused/appellant Shambhoo shall surrender to his bail bonds and appear before the Trial Court on or before 1-12-1988 and execute a person bond in an amount of Rs. 3,000/- with one solvent surety in the like amount to the satisfaction of the Trial Court to the effect that he shall keep peace and be of good behaviour for a period of 3 years and shall appear and receive the sentence whenever called upon to do so by the Trial Court. 1988 (I) MPWN 134, 1979 (II) MPWN 232 and 1965 JLJ SN 83 relied on. Appeal partly allowed.

In view of the aforesaid principles, on examining the case at hand, it is undisputed fact on record that the appellant was 19 years of the age on the date of alleged incident as stated in his arrest memo dated 27-5-1995 (Exh. P-20). The Trial Court while recording his accused-statement u/s 313 of Cr. PC on 4-6-1996 also stated his age 21 years. In such premises in the available factual matrix of the case, the appellant is held to be entitled to extend the benefit of the mandatory provision of Section 6 of the Probation of Offenders Act. In view of the law laid down in the aforesaid cited case, the findings of the Trial Court in Para 28 of the impugned judgment refusing to extend such benefit is not sustainable hence, the same is hereby set aside and subject to following directions, the benefit of mandatory provision of Section 6 of the Probation of Offenders Act is extended to the appellant and pursuant to it, his awarded sentence under the aforesaid sections on all count are set aside.

It is settled proposition of law that even after holding guilty to the appellant for the alleged offence and extending him the benefit of the probation under the abovementioned Act, appellant could be directed to pay the compensation to the victims under Sections 357 of Cr. PC. So, there is no bar under the aforesaid act for imposition of the sum regarding compensation with a direction to pay the same to the victims or his natural heirs and legal representatives and the same could be recovered as arrears of fine. So, in such premises, while extending the benefit of probation, I direct the appellant to pay the compensation of Rs. 25,000/- (Rupees Twenty five thousand) to the natural heirs and legal representatives of the deceased Prithavi Singh the same is to be deposited by the appellant with the Trial Court within three months from today. On depositing the same, the entire sum be given to the natural heirs and legal representatives of deceased Prithavi Singh in equal proportion by calling them in the Trial Court through summons. At this juncture, I am apprised by the appellant''s Counsel that after the death of Prithavi Singh, his wife has also been passed away and now, they are surviving with two sons namely, Sarjan Singh (PW. 4) and Gudda. The Trial Court shall be at liberty to enquire this aspect.

Subject to aforesaid compliance and also on furnishing the personal bond of Rs. 10,000/- (Rupees Ten thousand) along with one surety of the like amount to the satisfaction of the Trial Court as per prescribed procedure under the aforesaid Act, within three months along with an undertaking that he will maintain the peace and good behaviour for three years and shall not involve himself in any criminal activities, then the appellant is directed to be released on Probation.

On violating any of the aforesaid term by the appellant, the Trial Court shall be at liberty to take appropriate steps against him in accordance with the prescribed procedure under the provisions of the Probation of Offenders Act.

In view of the aforesaid discussions, by affirming the conviction of the appellant under Sections 323 and 304, Part II of IPC, this appeal is allowed in part and by extending the benefit of Probation of Offenders Act subject to abovementioned terms and conditions, the awarded sentence of the appellant is hereby set aside. Till this extent the impugned judgment is modified while the other findings of the same are hereby affirmed. The bail bond of the appellant is hereby discharged.

In order to secure the recovery of the compensation, it is made clear that if the aforesaid imposed compensation is not deposited by the appellant within the prescribed period, then by deeming the amount of compensation as imposed fine amount for the offence of Section 304-II of IPC, the appellant has to suffer further two years'' RI. The Trial Court shall be at liberty to take steps in this regard if the occasion arises. Appeal is allowed in part as indicated above.