KADIR ALI AND ANOTHERversusSTATE OF U.P.

          HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2260 of 2020

Kadir Ali And Another
                                                             .....Appellant(s)
                                     Versus
State of U.P.
                                                           .....Respondent(s)

Counsel for Appellant(s)          : Ashutosh Kumar Mishra, Pankaj Kumar
                                    Yadav, Ravi Shanker Pathak, Smriti
                                    Shukla
Counsel for Respondent(s)         : G.A.

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.

1. Heard Sri Pankaj Kumar Yadav, learned counsel for appellants and Sri
Rahul Asthana, learned A.G.A. of the State.

2. This Criminal Appeal has been preferred against the judgment and order
dated 31.1.2020 passed by learned Additional District & Sessions
Judge/F.T.C.-II, Kushinagar in Sessions Trial No.350 of 2018 (State of U.P.
vs. Khusubuddin and others) arising out of Case Crime No.873 2017, under
Sections 304, 504, 506 I.P.C., Police Station Kasya, District Kushinagar,
whereby the appellants were convicted and sentenced as follows:-

Under Section 504 I.P.C. - to undergo six months rigorous imprisonment
alongwith fine of Rs.5,000/- and in case of default in payment of fine the
appellants shall undergo additional imprisonment of one month.

3. In brief, the prosecution story is as follows:

On 24.10.2017, the complainant Khairun Nisha given a written complaint to
the effect that the complainant's name is Khairun Nisha, wife of Afzal, and
she is resident of village Pataya, Police Station Kasya, District Kushinagar.
The incident occurred on 23.10.2017 at 8.00 A.M. The complainant's
husband and father-in-law, Khushbudin, were talking to my husband's
brothers, Qadir Ali and Mustafa, regarding the partition of family property,
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when my father-in-law attacked my husband with a stick, causing life-
threatening injuries. My husband fainted on the spot due to the serious
injury. Qadir Ali and Mustafa abused the complainant's husband and
threatened to kill him, and on their instigation, my husband was attacked
with a stick. A fatal attack was made by my father-in-law. After reporting
the incident on dial 100, my husband was brought to the Government
Hospital, Kasya for treatment. Considering the severity of the injury, he was
referred to the District Hospital and after being referred by the District
Hospital, he was brought to the Medical College, Gorakhpur for treatment.
Where my husband died during treatment on the night of 23/24.10.2017 at
2.00 A.M., whose post-mortem was conducted at the Medical College,
Gorakhpur. After that, I am giving written information to the Police Station,
Kasya, District Kushinagar.

4. In support of the prosecution case, eight witnesses were examined, which
are as under :-

P.W.-1 Khairun Nisha:- the complainant and wife of the deceased, stated
that the incident occurred during a property partition dispute and that
accused Khushbuddin struck her husband with a lathi on the head causing
him to fall unconscious. She further stated that Kadir Ali and Mustafa
threatened the deceased and instigated the assault. She proved the written
complaint marked as Exhibit Ka-1 and explained the delay in lodging the
FIR by stating that she remained occupied in arranging treatment for her
husband from Kasaya to Gorakhpur.

P.W.-2 Javed :- an independent witness, deposed that while passing through
the village he saw the quarrel and witnessed accused Khushbuddin hitting
Afzal on the head with a lathi, causing him to fall unconscious. He clarified
in cross-examination that he had no enmity or relationship with either party.

P.W.-3 Anil Kumar Bharti :- also supported the prosecution version and
stated that upon hearing commotion he reached the place of occurrence and
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saw the accused Khushbuddin strike Afzal on the head with a lathi during
the quarrel over land partition. He too denied any enmity with the accused
persons.

P.W.-4 Isarman :- partially supported the prosecution case by stating that
he saw a quarrel taking place at the door of Khushbuddin but left before the
actual assault; later he came to know that Khushbuddin's son had sustained
injuries.

P.W.-5 Noor Mohammad, brother of the deceased :- deposed that during
the quarrel over land partition accused Khushbuddin struck Afzal on the
head with a lathi and thereafter accompanied the injured to various hospitals
till his death. He also proved his participation in the Panchayatnama
proceedings.

P.W.-6 S.I. Ramlakshman Singh, the Investigating Officer :- proved the
documentary evidence including the site plan, chik FIR, general diary entries
and charge sheet marked as Exhibits Ka-2 to Ka-7. He stated that during
investigation no sufficient evidence was found against Kadir Ali and
Mustafa for the offence under Section 304 IPC and therefore charges under
Sections 504 and 506 IPC alone were submitted against them.

P.W.-7 Dr. R.D. Kushwaha :- who conducted the post-mortem examination
on 24.10.2017, found stitched injuries on the left parietal region of the head
and blood clot beneath the stitches. On internal examination, subdural
haemorrhage was detected. He opined that death was caused due to coma
resulting from ante-mortem head injuries caused by a hard and blunt object.
The post-mortem report was proved as Exhibit Ka-8.

P.W.-8 S.I. Sunil Kumar Singh :- proved the Panchayatnama marked as
Exhibit Ka-9 and stated that the body was sent for post-mortem after the
inquest proceedings.

5. The documentary evidence adduced by the prosecution included the
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written complaint (Exhibit Ka-1), site plan (Exhibit Ka-2), FIR and GD
entries (Exhibits Ka-3 to Ka-6), charge sheet (Exhibit Ka-7), post-mortem
report (Exhibit Ka-8) and Panchayatnama (Exhibit Ka-9).

6. In the statements recorded under Section 313 Cr.P.C., the accused persons
denied the allegations and claimed false implication due to village faction
and land disputes. Appellant Khushbuddin stated that the actual quarrel had
taken place between Afzal and Noor Mohammad and that injuries were
caused by associates of Ismail s/o Sadir. Kadir Ali and Mustafa denied their
presence at the spot and pleaded false implication.

7. In defence, D.W.-1 Shabbo Khatoon, daughter of accused Khushbuddin
and sister of Kadir Ali and Mustafa, stated that the quarrel had actually taken
place between Noor Mohammad and Afzal regarding construction over land
and that Noor Mohammad caused injuries to Afzal by the blunt side of a
kudal. She further stated that the complainant Khairun Nisha was inside the
house at the relevant time and did not witness the occurrence.

8. After hearing learned counsel for both the parties, learned trial court after
appreciating the evidences both oral as well as documentary, found the
appellants guilty of offence as described in paragraph no.2 of this
judgement.

9. Feeling aggrieved with the impugned judgment and order of conviction,
appellants have preferred the present appeal.

10. At the time of hearing the argument of learned counsel for appellants
who has fairly stated that the conviction on merits is not being challenged
and the arguments are confined to the question of sentence seeking benefit of
Section 4 of Probation of Offenders Act, 1958.

11. Learned A.G.A. for the State supports the judgment of conviction but
submits that the present appellant have no criminal antecedents and the
incident is quite old.
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12. After considering the arguments and after perusal of the material
available on record, this Court finds that except the merits of the case, so far
as the prayer of learned counsel for the appellants for providing benefits of
Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal
position and law pronounced in this regard. Section 4 of the Probation of
Offenders Act, 1958, is extracted hereunder :-


     "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."


13. A similar provision finds place in the Code of Criminal Procedure, there,
Section 360 provides :-


     "Section 360- Order to release on probation of good conduct or after

     admonition :-

     When any person not under twenty-one years of age is convicted of an
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     offence punishable with fine only or with imprisonment for a term of

     seven years, or less, or when any person under twenty-one years of age or

     any woman is convicted of an offence not punishable with death or

     imprisonment 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 or antecedents 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 where any first offender is convicted by a Magistrate of the
     second class not specially empowered by the High Court, and the
     Magistrate is of opinion that the powers conferred by this section should

     be exercised, he shall record his opinion to that effect, and submit the

     proceedings to a Magistrate of the first class forwarding the accused to

     or taking bail for his appearance before, such Magistrate, who shall

     dispose of the case in the manner provided by Sub-Section (2)."


14. Upon considering the record of the case, the evidences available on
record, findings of the trial Court, I have satisfied that the conviction
recorded by trial court is based on cogent and reliable evidences and does
not call for interference, therefore, the conviction of the appellant is
affirmed.

15. However, on the issue of sentence, it is evident that the appellants is first
time offender having no criminal history. No adverse material have been
produced regarding their conduct. In these circumstances, this Court finds
appropriate to invoke the provisions of Section 4 of Probation of Offenders
Act, 1958, instead of sending the appellants to imprisonment.
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                                    16. In the light of the above, as far as it relates with the conviction of the
                                    appellants is maintained but the sentence is modified. Instead of sending the
                                    appellants namely Kadir Ali and Mustafa to jail, they are given benefit of
                                    Section 4 of The Probation of Offenders Act, 1958 and therefore is released
                                    on probation and is directed to file two sureties each to the tune of
                                    Rs.10,000/- each along with personal bonds before District Probation Officer
                                    concerned and also an undertaking to the effect that he shall maintain peace
                                    and good behavior during the period of two years from today. The said
                                    bonds are to be filed by the appellant within a period of three months from
                                    the date of receipt of certified copy of this judgment.

                                    17. In case of breach of any of the above conditions, the appellants shall be
                                    taken into custody and shall have to undergo sentence awarded to them.

                                    18. With the above modification, the instant criminal appeal is partly
                                    allowed.

                                    19. A certified copy of the order be also sent to the court concerned for
                                    compliance.

                                    20. Office is directed to communicate this order to the court concerned for
                                    necessary compliance.

                                    21. Trial court record shall also be sent back to the district court concerned.


                                    April 30, 2026
                                    Dev
                                                                                 (Mrs. Vani Ranjan Agrawal,J.)




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