KAMTA SINGHversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2514 of 1984

Kamta Singh
                                                              .....Appellant(s)
                                   Versus
State of U.P.
                                                            .....Respondent(s)

Counsel for Appellant(s)         : G.S.Chaturvedi, Virendra Singh Parmar
Counsel for Respondent(s)        : A.G.A.

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

1. This appeal has been filed by the appellant against the judgment and order
dated 03.09.1984 passed Additional Sessions Judge, Kanpur Dehat, in
Sessions Trial No.395 of 1981, under Section 308 I.P.C., police station-
Sajaiti, District- Kanpur Dehat, whereby the appellant has been convicted
and sentenced for four years rigorous imprisonment.
2. Heard Sri Surendra Kumar Chaubey, Advocate holding brief of Sri
Virendra Singh Parmar, learned counsel for the appellant and Sri Rahul
Asthana, learned A.G.A. for the State.
3. The prosecution case, in brief, is that on 05.02.1981 at about 12.00 p.m. in
village Kohra, police station- Sajaiti, District Kanpur Dehat, the accused
Kamta Singh assaulted Sukhdev Singh, the father of the complainant, with
lathi causing multiple injuries under such circumstances that had death
ensued, the act could have amounted to culpable homicide not amounting to
murder.
4. FIR has been registered on the basis of written report of complainant and
G.D. entries were made. The injured Sukhdev Singh was medically
examined at the primary health center, Ghatampur by Dr. Gopal Singh
Dhanik. Four injuries were found on the body of the injured which are in the
nature of lacerated wound. One injury was found on the head and three
injuries was caused on legs.
5. During course of investigation, the Investigating Officer prepared site plan
of place of occurrence, recorded the statements of witnesses and after
completion of investigation, submitted charge-sheet for offence under
Section 308 I.P.C.
6. Charges were framed and read over to the accused. He pleaded not guilty
and claimed the trial.
7. In order to prove its case, the prosecution has examined P.W.-1 Dr. Gopal
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Singh Dhanik, P.W.-2 Rajendra Singh, P.W.-3 Chheda Singh, P.W.-4 Sub
Inspector Rama Shanker Shukla. Documentary evidences, written report,
FIR, carbon copy of G.D., site plan and charge-sheet, Ext. Ka-1 to Ext. Ka-6
are available on record which are duly proved by the prosecution witness.
8. In his statement recorded under Section 313 Cr.P.C., the accused denied
the allegations and claimed false implication on account of enmity,
contending that he had not assaulted the injured. The injured was beaten by
some unknown person due to prior enmity, he was falsely implicated. The
learned trial court after considering oral and documentary evidence on
record returned the finding of guilt and convicted the accused Kamta Singh
for offence under Section 308 I.P.C. and sentenced him to undergo rigorous
imprisonment for four years.
9. Aggrieved with the judgment of conviction and sentence, the appeal has
been preferred.
10. It is contended that the conviction and sentence of the appellant are
against the weight of evidence on record and bad in law. The sentence
imposed on him is too severe. Therefore, it is prayed that the appeal be
allowed and the impugned judgment of conviction and sentence be set aside
and the accused be acquitted of all charges.
11. Learned A.G.A. for the State supported the judgment of conviction and
sentence.
12. At the time of argument, learned counsel for the appellant has not
challenged the conviction on merit and has confined his submissions only to
the question of sentence.
13. Even otherwise, upon independent scrutiny of the record, this Court finds
:-
(i) The injured Sukhdev Singh could not be examined as he subsequently
died after about 19 months of the incident and it is not the prosecution case
that his death was the result of the injury sustained in the incident.
(ii) The testimony of eye-witnesses P.W.-2 Rajendra Singh and P.W.-3
Chheda Singh is consistent and reliable.
(iii) The medical evidence and the statement of P.W.-1 Dr. Gopal Singh
Dhanik corroborated the ocular version of eye-witnesses.
14. The nature of injury and the manner of assault also justifies the finding
that the act was committed with such knowledge and under such
circumstances as would attract Section 308 I.P.C.
15. Accordingly, the conviction recorded by the learned trial court under
Section 308 I.P.C. cause for no interference and is hereby affirmed.
16. The only issue that survives for consideration is whether the sentence
imposed by the trial court requires modification. The following mitigating
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                                 3

circumstances emerged:-
(i) The incident is of the year 1981. The appeal has remained pending for
more than 40 years.
(ii) The appellant has undergone the ordeal of protracted criminal
proceedings for decades.
(iii) There is no material indicating criminal antecedent of the appellant.
(iv) The maximum punishment provided for offence under Section 308
I.P.C. is 7 years.
17. So far as the question of extending benefit of Section 4 of Probation of
Offenders Act to the appellant is concerned, it is essential to discuss the legal
position and law pronounced. In this regard, Section 4 of the Probation of
the Offenders Act, 1958 is extracted hereinunder :-

     "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. "

18. A similar provision finds place in Section 360 of Cr.P.C. reads as under
:-


     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
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                                4


     of an 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).

19. Section 4 of Probation of Offenders Act, 1958 empowers the Court to
release an offender on probation of good conduct, instead of sentencing him
to imprisonment. Having regard to the nature of offence, the character of the
offender and the circumstances of the case.
20. The Hon'ble Apex Court has repeatedly emphasized that benefit of
offender should be reliable extended in appropriate cases particularly where
the offence is old, sentencing must be proper and reformative in appropriate
cases. The object of probation is to reform the offender and prevent
repetition of the crime.
21. Considering the totality of the circumstances, sending the appellant again
in jail would serve no useful purpose. This Court is of the opinion that ends
of justice would be adequately met by upholding the conviction and
modifying the sentence by extending the benefit of Section 4 of Probation of
Offenders Act, 1948.

22. Accordingly, instant criminal appeal is partly allowed. The conviction
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                                                                    5


                                    recorded by the learned trial court under Section 308 I.P.C. is hereby
                                    affirmed, but the order of substantive sentence of imprisonment is set aside.

                                    23. The appellant Kamta Singh is directed to be released on probation on
                                    good conduct for a period of one year on his furnishing personal bond of Rs.
                                    10000/- and one surety in the like some before District Probation Officer
                                    concerned and also an undertaking to the effect that he shall maintain peace
                                    and good behaviour during the period of one year from today.

                                    24. The said bonds are to be filed by the appellant within a period of two
                                    months from the date of receipt of certified copy of this judgment.

                                    25. In case of breach of any of the conditions, the appellant shall be taken
                                    into custody and shall have undergo sentence awarded to him.

                                    26. A certified copy of the order be also sent to the concerned Court for
                                    compliance. Trial Court record shall also be sent back to the District Court
                                    concerned.

                                    April 24, 2026
                                    P. Pandey
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




Digitally signed by :-
PUSHPENDRA PANDEY
High Court of Judicature at Allahabad