KISHAN GIRI AND OTHERSversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 1105 of 1984

Kishan Giri And Others
                                                             .....Appellant(s)
                                   Versus
State of U.P.
                                                           .....Respondent(s)

Counsel for Appellant(s)           :   Brij Raj Singh, S.K. Kulshreshtha
Counsel for Respondent(s)          :   A.G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.
1. Heard Sri Brij Raj Singh, learned counsel for appellants and Sri Rahul
Asthana, learned Additional Government Advocate for the State respondent
and perused the record.

2. This criminal appeal under Section 374(2) Cr.P.C. has been preferred by
appellant challenging the judgment and order dated 30.03.1984 passed by
Additional Sessions Judge, Etah, in S.T. No. 853 of 1983, instead of
sentencing the accused persons Kishan Giri, Layak Giri, Shiv Puri and
Subhash Puri at once to any punishment, directed that they be released on
probation of good conduct on each of them entering into a personal bond of
Rs. 3,000 with two sureties each in the like amount to appear and receive
sentence when called upon during a period of 2 years as the court may direct
and in the meantime to keep the peace and be of good behavior U/s 452 and
307 R/w S. 34 I.P.C.

3. Vide order dated 23.07.2025 passed by coordinate Bench of this Court,
the appeal stands abated qua appellant no. 2 Layak Giri. Now the appeal
is surviving only with respect to appellant no.1 Kishan Giri and appellant
No.3 Shiv Puri.

4. In the nutshell, the prosecution story is that the accused persons on
22.11.1983 in village Gobra, P.S. Mirehchi, District- Etah committed lurking
house- trespass in night by entering into the house of the complainant with
the common intention of killing the complainant Ramesh Giri, Smt. Shitla
Devi and Km. Kashmira and in furthurence of common intention of all,
Layak Giri made a shot with katta at complainant and other two females.
The reason behind the scuffle is a partition wall dispute between the accused
persons and complainant wherein the accused were putting obstruction and
the incident took place when the mother of the complainant was serving food
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to him and Km. Kashmira came to give invitation for her sister's Sangeet.
Just then the accused Layak Giri armed with a country-made pistol, Shiv
Puri armed with pharsa, Kishan Giri and Subhash Giri armed with lathis
arrived from the eastern side jumping over the boundary wall. After the
incident, the complainant wrote himself the written report Exhibit Ka-2 and
went with the injured Smt. Shitla Devi and Km. Kashmira on a bullock-cart
and deposited the same at P.S. Mirehchi. On the basis of this written report,
Constable Kishori Raman prepared the chik FIR Exhibit Ka-5 and
registered a case in G.D as Exhibit ka-6.

5. The prosecution in support of its case examined P.W.1 Smt. Shitla Devi,
P.W. 2- Km. Kashmira and P.W.3- Ramesh Giri as eye witnesses and
P.W.4- Dr. B.R.G. Kamthan and P.W.5 S.I. Sri Chandresh Kumar I.O. who
deposed as under :-

P.W.1. Smt. Sushila Devi has fully supported the prosecution story and
stated that the accused were the residents of her own village whom she knew
beforehand. She also stated that the scuffle took place between her son
Ramesh Giri and accused persons on the construction of Gher.

P.W.2- Km Kashmira has also fully corroborated the previous witness
statement and stated that the incident was three months old and it took place
when she went to the house of Ramesh Giri for inviting them for musical
concert of her sister's marriage.

P.W.3 Ramesh Giri( Complainant) has also fully supported the
prosecution case and gave a similar statement as the injured witnesses.

P.W.4 Dr. B.R.G. Kamthan examined the injuries of Shitla Devi and Km.
Kashmira and stated that the injuries were caused by the discharge of
firearms like country made pistol and the injuries were simple as stated in
the reports Exhibit ka-3 and Exhibit ka-4.

P.W.5- S.I. Chandresh Kumar was the investigating officer who
immediately interrogated the complainant and injured witnesses, visited the
place of occurrence, collected some pellets as Exhibit Ka-4 and Dibbi as
Exhibit Ka-3; prepared the site plan as Exhibit ka-11; prepared the search
memo as Exhibit ka-12 and after completion of the investigation submitted
a charge-sheet as Exhibit ka-14.

6. All the accused fully refuted the allegations of the prosecution and they
alleged that they have been falsely implicated due to enmity.

7. The Learned Trial court after considering the submissions of both the
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counsels stated that where the medical evidence on record did not show that
the injuries received by the victim could prove fatal and in fact the medical
evidence did not show that the injuries received were very serious and were
dangerous to life, a case under Section 307 I.P.C. is not made out. Therefore,
necessary intention to kill despite of having deadly weapons is not proved
beyond reasonable doubt and a case U/s 324 I.P.C is made out.

8. Learned counsel for appellants have made no argument on the point of
conviction and submitted that appellants have been released on probation
under Section 4 of the Probation of Offenders Act, 1958. He submitted that
due to order of probation, future of appellants may not be affected. Hence
this appeal.

9. Learned AGA opposed the contention made by learned counsel for
appellant.

10. The P.W.-1, P.W.-2, P.W.-3 and P.W.4 have fully supported the
prosecution story in their statements given before the trial Court.

11. In this context Section 12 of The Probation of Offenders Act, 1958 is
reproduced:-

     "12. Removal of disqualification attaching to conviction.--
     Notwithstanding anything contained in any other law, a person found
     guilty of an offence and dealt with under the provisions of section 3 or
     section 4 shall not suffer disqualification, if any, attaching to a conviction
     of an offence under such law: Provided that nothing in this section shall
     apply to a person who, after his release under section 4 is subsequently
     sentenced for the original offence."

12. Interpretation of Section 12 of The Probation of Offenders Act, 1958 will
depend upon observation given by Hon'ble Supreme Court in the case of
The Divisional Personnel Officer, Southern Railway & another vs.
T.R.Challapan, AIR 1975 SC 2216 and by Delhi High Court in the case of
Iqbal Singh vs. Inspector General of Police and others, AIR 1970 Delhi,
240.

13. Appellants were convicted under Sections 452, 307 IPC read with
Section 34 I.P.C. by the learned trial Court concerned and maximum lenient
view was taken by the trial Court. Two years of probation have elapsed from
the date of judgment. No fruitful purpose would serve in keeping this appeal
pending. The view taken by the trial Court is plausible view. No interference
is called for. This appeal is liable to be dismissed, hence dismissed.
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                                    14. Office is directed to transmit copy of this order alongwith record of trial
                                    Court to the trial Court.

                                    March 10, 2026
                                    Dev
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
DEV PRAKASH
High Court of Judicature at Allahabad