Allahabad High Court
ANTUversusSTATE
- Decided
- Bench
- TEJ PRATAP TIWARI
Holding
The conviction under Section 307 IPC is set aside and replaced with a conviction under Section 324 IPC, and the appellant is released on probation under Section 4 of the Probation of Offenders Act, 1958.
Summary
The appellant, a police officer, was convicted under Section 307 IPC and the Arms Act for shooting a Sub‑Inspector during a night patrol in 1981. He appealed, arguing that the prosecution failed to prove the requisite intent to murder, that the investigation was tainted by bias, and that he deserved the benefit of probation as a first‑time offender of advanced age. The High Court examined precedents on the elements of Section 307 and concluded that the evidence did not establish a specific intent to kill, noting the impulsive nature of the incident and the lack of planning. Consequently, the Court set aside the conviction under Section 307, substituted it with a conviction under Section 324 IPC (causing hurt by an unlawful act), and granted the appellant probation under Section 4 of the Probation of Offenders Act, 1958, with surety conditions. The appeal was therefore partly allowed, modifying the sentence while upholding the conviction for a lesser offence.
Issues considered
- The prosecution proved the act of shooting but not the specific intent required for conviction under Section 307 IPC.
- Whether the appellant is eligible for relief under the Probation of Offenders Act, 1958, given his age, health, and first‑offence status.
- Whether procedural irregularities in the investigation warrant setting aside the conviction.
Legislation cited
- Arms Act — s. 25, 28
- Code of Criminal Procedure, 1973 — s. 360
- Indian Penal Code — s. 307, 324
- Probation of Offenders Act, 1958 — s. 3, 4
Subjects
- attempt to murder
- IPC 307
- IPC 324
- Probation of Offenders Act
- sentencing discretion
- police shooting
- intent
- arms possession
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 2286 of 1988
Antu
…..Appellant(s)
Versus
State
…..Respondent(s)
Counsel for Appellant(s) : Ramjee Saxena, S.a. Sharma
Counsel for Respondent(s) : A.G.A.
Court No. - 79
HON'BLE TEJ PRATAP TIWARI, J.
1. Heard Sri Raghuvansh Chandra, learned counsel for the
appellant, learned A.G.A. for the State and perused the record.
2. The present criminal appeal has been preferred by the
appellant against the judgment and order dated 29.09.1988
passed by learned III Additional Sessions Judge, Meerut in S.T.
No.103 of 1981 and S.T. No. 104 of 1981 whereby the appellant
was convicted and sentenced under Section 307 I.P.C. for five
years rigorous imprisonment in S.T. No. 103 of 1981 and further
he was convicted and sentenced under Section 25/28 Arms Act
for two years rigorous imprisonment in S.T. No. 104 of 1981.
3. In short the prosecution story, is that, on 04.01.1981, when
the police party headed by Sri A.K. Chaudhary, Station Officer of
Police Station Partapur, District Meerut was on patrolling duty at
6:30 p.m. by a motorcycle. When they reached the police outpost
of Shastrinagar, Constable Ompal Singh was sent to the said S.O.
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CRLA No. - 2286 of 1988
to police outpost Pilokhri and the remaining police officers i.e. the
Station Officer as well as the Sub-Inspector, namely, Y.D. Sharma
left the motorcycle at the police outpost Shastrinagar and
proceeded further on foot. They started their patrolling on the road
of Avas Vikas which leads to Zaidi Farm. At the movement, when
they reached Neel Ki Kothi at around 7:15 p.m., they found that
four miscreants were coming from out from the side of Zaidi Farm.
The said S.O. and S.I. flashed their torches on the said
miscreants. In reply the miscreants also flashed their torches on
the policemen. When the miscreants saw in the light of their
torches that they had come across with the policemen, one of the
miscreants started shouting, ‘police police’ and then fired at the
police personnel with intention to kill them. The policemen i.e. the
said S.O. and S.I. challenged the miscreants and caused fire from
their service revolvers in their defence. Exchange of fires took
place between the policemen and the miscreants and in this
incident the accused-appellant fired a shot on Sub-Inspector Y.D.
Sharma, who was injured and had lost his grip over the said
miscreants due to this the miscreants succeeded in getting
themselves escaped. The accused appellant was arrested on the
spot having in possession the country made pistol and five live
cartridges. The recovery memo of empty cartidges was prepared
and recovered articles were duly sealed by the policemen on the
spot. Thereafter, injured and the accused-appellant were taken to
the police station concerned along with recovered articles where
the F.I.R. (Ex.Ka-3) was lodged by the S.O. Sri A.K. Chaudhary.
The investigation of the case was assigned to Sub Inspector
Puran Giri (P.W.-3) and then the Sub-Inspector Y.D. Sharma.
After, the investigation was completed the necessary sanction
from the District Magistrate was obtained and subsequently the
charge sheet was submitted.
4. To prove its case, the prosecution has examined altogether
four witnesses. Details of the witnesses are given below.
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CRLA No. - 2286 of 1988
Prosecution Name of Paper proved Role
Witness witnesses
P.W.-1 A.K. Chaudhary Supported the Informant
F.I.R. version
P.W.-2 Yogendra Dutt Supported the Injured
Sharma prosecution
story
P.W.-3 S.I. Puran Giri Supported the Investigating
prosecution Officer
story
P.W.-4 Dr. Chandra Prepared Doctor
Gupta medical report
5. That after closing of the evidence, statement of accused/
appellant under Section 313 Cr.P.C. was recorded by the trial
court explaining the entire evidence and other circumstances, in
which the appellant denied the prosecution story and the entire
prosecution story was said to be wrong and concocted.
6. Thereafter, the learned trial court after hearing learned
counsel for both the parties and appreciating the entire evidence
oral as well as documentary, found the accused / appellant guilty
and sentenced the appellant as mentioned above.
7. Feeling aggrieved and dissatisfied with the impugned
judgment and order of conviction, the accused-appellant has
preferred the present appeal.
8. At the first place, learned counsel for the accused-appellant
has argued that though in the instant case, the recovery has not
been made as per the law and there is an enmity which is stated
by the prosecution witness P.W.-1 A.K. Chaudhary, S.O. In his
deposition the blood stained soil was also not taken and sent to
FSL for examination. The investigation made by the Sub-ordinate
of the complainant is highly doubtful as it is against the natural
justice that no body should be judge in his own cause. The
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CRLA No. - 2286 of 1988
investigation conducted by the police person based on the
complaint made by the police himself creates the doubt.
9. Apart from this, learned counsel for the accused-applicant
also emphasised that the incident is said to have been taken
place at around 6:30 to 7:15 p.m. which is not very odd time when
public witnesses are not available but no any attempt has been
made by the police in producing any public witness. Apart from
this, learned counsel for the appellant also raised doubt regarding
the place of occurrence at one point of time, it has been said that
the place where the incident took place was having cemented
flour but at the other place, it has been said to be a place of mud
and soil which also creates doubt.
10. Learned counsel for the appellant submitted that the State
of Uttar Pradesh has its own local law of probation i.e. Uttar
Pradesh First Offenders Probation Act, 1938. He further submitted
that the Probation of Offenders Act, 1958 (Central Act) is also
applicable in the State of Uttar Pradesh as held by Hon'ble the
Supreme Court in the case of Mohd. Hashim Vs. State of U.P.;
(2017) 2 SCC 198. Thus, learned counsel for the appellant
submitted that it is upon the discretion of the Court to grant
benefits in either of the Acts.
11. During the course of argument, learned counsel for the
appellant submitted that he does not want to press the appeal on
merits. He has submitted that the incident took place 45 years ago
and there is no further criminal antecedent against the appellant.
The appellant is approximately 73 years of age and is suffering
from old age related diseases. The delay in trial deprives the right
of the appellant of speedy trial and he may be given benefit of first
offender and appellant may be extended the benefit of Probation
of Offenders Act, 1958 (herein after referred as the Act of 1958).
He further submitted that appellant is first time offender and he is
not previously convicted in any case. He further submitted that
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CRLA No. - 2286 of 1988
this is the Court which may consider the benefit of Section 4 of the
Act of 1958 to the accused-appellant.
12. Learned A.G.A., on the other hand, opposed the appeal and
has submitted that there is no material irregularity or illegality
committed by court below and keeping in view the evidence on
record, accused-appellant has been rightly convicted.
13. Learned A.G.A. further states that the benefit of Section 4 of
the Act of 1958 could be extended to the accused-appellant on
certain stipulations as specified in Section 4 of the Act of 1958.
14. After considering the arguments advanced by the parties and
after perusal of the material available on record, this court finds
that there are some discrepancies in the prosecution case and
prosecution also failed to established the intention of the accused
which is one of the main ingredient of the section 307 of I.P.C. it
may be seen that the injured has sustained injury. The injury
sustained by the injured was not on vital part and the facts and
circumstances of the case do not indicate that the appellants had
intention to kill the injured. Here, the question arises for
consideration is whether the act of the accused-appellants would
fall within the ambit of Section 307 of IPC.
15. The provisions of Section 307 of IPC reads as under:
"307.Attempt to murder.--Whoever does any act with
such intention or knowledge, and under such
circumstances that, if he by that act caused death, he
would be guilty of murder, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and
if hurt is caused to any person by such act, the offender
shall be liable either to imprisonment for life, or to such
punishment as is hereinbefore mentioned.
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CRLA No. - 2286 of 1988
Attempts by life convicts.--When any person offending
under this section is under sentence of imprisonment for
life, he may, if hurt is caused, be punished with death."
16. The first part of Section 307 refers to "an act with such
intention or knowledge, and under such circumstances that, if he
by that act caused death, he would be guilty of murder". The
second part of Section 307, which carries a heavier punishment,
refers to 'hurt' caused in pursuance of such an 'act'. It may be
stated that proof of grievous or life-threatening hurt is not a sine
qua non for the offence under Section 307 of IPC. The intention of
the accused can be ascertained from the actual injury, if any, as
well as from surrounding circumstances. Among other things, the
nature of the weapon used and the severity of the blows inflicted
can be considered to infer intent.
17. For the conviction under this section more importance has
been given to mens rea or the intention than the actus reus or the
actual act itself. The attempt should arise out of a specific
intention or desire to murder the victim. The nature of the weapon
used, the manner in which it is used, motive for the crime, severity
of the blow, the part of the body where the injury is inflicted is all
taken into consideration to determine the intention.
18. In AIR 1982 SC 2013, Kundan Singh Vs. State of Punjab,
the Hon'ble Apex Court has observed as under:-
"We are of the view that having regard to the facts and
circumstances of the present case and particularly in
view of the fact that P.W. 6 and P.W. 7 were in the
courtyard of their house when the appellant fired gun
shots and he could not, therefore, have intended to
injure them, the conviction of the appellant under
Section 307, I.P.C. was not justified. We think that the
conviction of the appellant could be maintained only
under Section 324 of the I.P.C. since P.W. 6 and P.W. 7
received simple injuries. We accordingly allow the
appeal and alter the conviction of the appellant to one
under Section 324 of the I.P.C. for causing simple
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CRLA No. - 2286 of 1988
injuries to P.W. 6 and P.W. 7 and since the appellant has
already suffered imprisonment for about 16 months, we
direct that the sentence imposed on the appellant be
reduced to that already undergone by him and that he
may be set at liberty forthwith."
19. The Apex Court in AIR 1996 SC 3236, Merambhai
Punjabhai Khachar and others vs. State of Gujarat, wherein in
an attempt to commit murder by fire-arm, victim has suffered a
pallet injury, the Apex Court held that Section 307 I.P.C. cannot be
held to have been satisfied and the conviction was altered to
Section 324 of IPC.
20. In Ramesh vs. State of U.P., AIR 1992 SC 664 : (1992) 1
SCC 318, wherein the injury was found on the back of the injured.
Accused was tried along with two other was convicted under
Section 307/34 I.P.C. and sentenced to undergo rigorous
imprisonment for four years, while the two others were acquitted.
The Apex Court altered from section 307 of IPC into Section 324
of I.P.C. and sentence was reduced to the period already
undergone with fine of Rs. 3000/-, which was to be paid to the
complainant as compensation. The relevant portion of the report
on reproduction reads as under:-
"2. The incident took place at 10 p.m. on December 4,
1973. Enmity between appellant and complainant is
found established. Prosecution relied on evidence of the
injured, his father and a family friend Budh Singh
examined as PW 4. The trial Judge did not attach much
weight to the evidence of Bharat Singh, PW 3, father of
the injured. The conviction was, mainly, based on
testimony of Budh Singh, PW 4. The High Court while
appreciating the evidence of Budh Singh observed that
in cross-examination he admitted that the complainant
did not disclose any name, immediately. He even could
not disclose whether they were known persons or
outsiders. But later on he gave out the name of the
accused.
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CRLA No. - 2286 of 1988
3. The learned counsel for appellant has assailed the
finding recorded by the High Court and the trial Judge
and has urged that the appellant was implicated due to
enmity. He urged that even though the High Court held
that in the FIR the main part was specifically assigned to
the appellant and one Jagat Singh but in the evidence it
was confined to the appellant as the relations between
the two were strained. The learned counsel further urged
that the case of the prosecution was that the
complainant was bitten by Jagat Singh and there being
no injury of biting, the High Court committed an error in
maintaining the conviction. We are not impressed by the
argument. The learned counsel then urged that the High
Court committed an error in convicting the appellant
under Section 307, Penal Code, 1860. We do not
propose to decide it as a matter of law. But we agree
with the learned counsel for the appellant that in peculiar
circumstances of the case it being a case of single injury
in the back of neck the conviction can be altered to be
under Section 324, Penal Code, 1860.
21. After considering above mentioned pronouncements, in the
facts and evidence of the present case, it appears that the
ingredients of sections 307 of IPC are not satisfied. For the
reason(s) that this Court, after taking note of main cause of
incident (Patrolling), is of the view that: (i) the miscreants shouted
police-police and then fired at the police personnel (ii) element of
planning has not been proved by the prosecution, which also
indicates the possibility that the offence could have been
committed on impulse by the accused-appellants and (iii)
circumstances of the case do not indicate that the appellants had
intention to kill the injured(s). Thus, conviction of the accused-
appellants under Sections 307 of IPC cannot sustain and the
accused-appellants are liable to be convicted for the offence
punishable under Section 324 of IPC.
22. The benefit of probation can be taken in the case related with
section 324 of IPC. At the first instance, it is necessary to discuss
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CRLA No. - 2286 of 1988
the provisions of Section 3 and Section 4 of the Probation of
Offenders Act, 1958 are extracted hereunder:-
"3. Power of court to release certain offenders after
admonition.- "Where any person is found guilty of having
committed an offence punishable under Section 379 or
Section 380 or Section 381 or Section 404 or Section 420
of the Indian Penal Code, (45 of 1860) or any offence
punishable with imprisonment for not more than two years,
or with fine, or with both, under the Indian Penal code, or
any other law, and no previous conviction is proved
against him 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
so to do, then, notwithstanding anything contained in any
other law for the time being in force, the Court may,
instead of sentencing him to any punishment or releasing
him on probation of good conduct under section 4 release
him after due admonition.
Explanation.-For the purposes of this Section, previous
conviction against a person shall include any previous
order made against him under this Section or Section 4.
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
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CRLA No. - 2286 of 1988
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."
23. Reliance be place on the judgment of the case Ratan Lal vs
State of Punjab AIR 1965 SC 444, while discussing the purpose
and object of Probation of Offenders Act, 1958, has observed in
para no. 4, as follows:-
"4. The Act is a milestone in the progress of the modern
liberal trend of reform in the field of penology. It is the
result of the recognition of the doctrine that the object of
criminal law is more to reform the individual offender than
to punish him. Broadly stated the Act distinguishes
offenders below 21 years of age and those above that
age, and offenders who are guilty of having committed an
offence punishable with death or imprisonment for life and
those who are guilty of a lesser offence. While in the case
of offenders who are above the age of 21 years, absolute
discretion is given to the court to release them after
admonition or on probation of good conduct, subject to the
condition laid down in the appropriate provision of the Act,
in the case of offenders below the age of 21 years an
injunction is issued to the court not to sentence them to
imprisonment unless it is satisfied that having regard to
the circumstances of the case, including the nature of the
offence and the character of the offenders, it is not
desirable to deal with them under Ss. 3 and 4 of the Act."
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CRLA No. - 2286 of 1988
24. Further the Hon'ble Supreme Court in the case of Ved
Prakash vs State of Haryana (1981) 1 SCC 447 : AIR 1981 SC
643 while discussing on the duty of Bench and Bar regarding
compliance of Section 360 Code of Criminal Procedure read with
Section 4 of Probation of Offenders Act, 1958 was pleased to
observe as under:
"The offence, for which conviction has been rendered, is
one which will be attracted by S. 360 or at any rate the
Probation of offenders Act, 1958. The materials before us
are imperfect because the Trial Court has been perfunctory
in discharging its sentencing functions. We must emphasise
that sentencing an accused person is a sensitive exercise
of discretion and not a routine or mechanical prescription
acting on hunch. The Trial Court should have collected
materials necessary to help award a just punishment in the
circumstances. The social background and the personal
factors of the crime-doer are very relevant although in
practice Criminal Courts have hardly paid attention to the
social milieu or the personal circumstances of the offender.
Even if S. 360 Cr.P.C. is not attracted, it is the duty of the
sentencing Court to be activist enough to collect such facts
as have a bearing on punishment with a rehabilitating slant.
The absence of such materials in the present case has left
us with little assistance even from the counsel. Indeed
members of the bar also do not pay sufficient attention to
these legislative provisions which relate to dealing with an
offender in such manner that he becomes a non-offender.
We emphasise this because the legislation which relate to
amelioration in punishment have been regarded as "Minor
Act" and, therefore, of little consequence. This is a totally
wrong approach and even if the Bar does not help, the
Bench must fulfill the humanising mission of sentencing
implicit in such enactments as the Probation of offenders
Act."
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CRLA No. - 2286 of 1988
25. That it is also noteworthy that this Hon'ble Court in the case
of Subhash Chand vs State of U.P. 2015 Law Suit (All) 1343,
has emphatically laid down the need to apply the law of probation
and give benefit of the beneficial legislation to accused persons in
appropriate cases. This court issued following directions to all trial
courts and appellate courts:
"It appears that the aforesaid beneficial legislation has been
lost sight of and even the Judges have practically forgotten
this provision of law. Thus, before parting with the case, this
Court feels that I will be failing in discharge of my duties, if a
word of caution is not written for the trial courts and the
appellate courts. The Registrar General of this Court is
directed to circulate copy of this Judgment to all the District
Judges of U.P., who shall in turn ensure circulation of the
copy of this order amongst all the judicial officers working
under him and shall ensure strict compliance of this
Judgment. The District Judges in the State are also directed
to call for reports every months from all the courts, i.e. trial
courts and appellate courts dealing with such matters and
to state as to in how many cases the benefit of the
aforesaid provisions have been granted to the accused. The
District Judges are also directed to monitor such cases
personally in each monthly meeting. The District Judges
concerned shall send monthly statement to the Registrar
General as to in how many cases the trial court/appellate
court has granted the benefit of the aforesaid beneficial
legislation to the accused. A copy of this order be placed
before the Registrar General for immediate compliance.”
26. Further the Hon'ble Apex Court in State of Maharashtra vs
Jagmohan Singh Kuldip Singh Anand (2004) 7 SCC 659 has
extended the benefit of The Probation of Offenders Act, 1958 to
the appellants, and observed as under:
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CRLA No. - 2286 of 1988
"The learned counsel appearing for the accused submitted
that the accident is of the year 1990. The parties are
educated and neighbors. The learned counsel, therefore,
prayed that benefit of the Probation of Offenders Act, 1958
may be granted to the accused. The prayer made on
behalf of the accused seems to be reasonable. The
accident is more than ten years old. The dispute was
between the neighbors over a trivial issue of claiming of
drainage. The accident took place in a fit of anger. All the
parties educated and also distantly related. The accident
is not such as to direct the accused to undergo sentence
of imprisonment. In our opinion, it is a fit case in which the
accused should be released on probation by directing
them to execute a bond of one year for good behaviour."
27. That coming to the point of desirability of extending the
benefit of Probation Act to the accused/ appellant in Sitaram
Paswan and another v/s State of Bihar AIR 2005 SC 3534
Supreme Court held as under:-
"For exercising the power which is discretionary, the Court
has to consider circumstances of the case, the nature of
the offence and the character of the offender. While
considering the nature of the offence, the Court must take
a realistic view of the gravity of the offence, the impact
which the offence had on the victim. The benefit available
to the accused under Section 4 of the Probation of
Offenders Act is subject to the limitation embodied in the
provisions and the word "may" clearly indicates that the
discretion vests with the Court whether to release the
offender in exercise of the powers under Section 3 or 4 of
the Probation of Offenders Act, having regard to the nature
of the offence and the character of the offender and overall
circumstances of the case. The powers under Section 4 of
the Probation of Offenders Act vest with the Court when
any person is found guilty of the offence committed, not
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CRLA No. - 2286 of 1988
punishable with death or imprisonment for life. This power
can be exercised by the Courts while finding the person
guilty and if the Court thinks that having regard to the
circumstances of the case, including the nature of the
offence and the character of the offender, benefit should be
extended to the accused, the power can be exercised by
the Court even at the appellate or revisional stage and also
by this Court while hearing appeal under Article 136 of the
Constitution of India."
28. That Section 4 of the Act of 1958 is applicable where a
person is found guilty of committing an offence where punishment
is neither life sentence nor death. The Court may release such an
accused on probation of good conduct on his furnishing a bond as
mentioned in the Section. The Court in applying the provisions of
this section is also required to consider the circumstances of the
case, character of the offender and nature of the offence before
exercising its discretion.
29. That it is noteworthy that the incident took place way back in
the year 1981. The accused-appellant has suffered in matter for
past 45 years.
30. Considering the fact and circumstances of the case, I am of
the view that the benefit of provision of the Act of 1958 should be
provided to the accused/appellant.
31. In the light of the above discussion, as far as it relates with
the conviction of the appellant in aforesaid case is maintained but
the sentence is modified. Instead of sending the appellant to jail
he is given benefit of Section 4 of The Probation of Offenders Act,
1958 and he is directed to file two sureties each of Rs 20,000/-
along with his personal bond before District Probation Officer
concerned as also an undertaking to the effect that he shall
maintain peace and good behaviour during the period of two
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CRLA No. - 2286 of 1988
years from today. The said bonds are to be filed by the appellant
within a period of two months from the date of this judgment.
32 In case of breach of any of the above conditions, the
appellant shall be taken into custody and shall have to undergo
sentence awarded to him.
33. With the above modification, the instant criminal appeal is
partly allowed.
34. A certified copy of the order be also sent to the court
concerned for compliance.
35. Office is directed to communicate this order to the court
concerned for necessary compliance.
36. Lower court record, if any, shall also be sent back to the
district court concerned.
(Tej Pratap Tiwari,J.)
March 18, 2026
Manoj
Digitally signed by :-
MANOJ KUMAR YADAV
High Court of Judicature at Allahabad
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