SANTOSH KUMARversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2940 of 1985

Santosh Kumar
                                                              .....Appellant(s)
                                   Versus
State of U.P.
                                                            .....Respondent(s)

Counsel for Appellant(s)              :   A.N. Tiwari, Anshu Chaudhary
Counsel for Respondent(s)             :   A.G.A.

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

1. Heard Ms. Rajni Dubey, learned counsel holding brief of Sri Anshu
Chaudhary, learned counsel for appellant and Sri Rahul Asthana, learned
A.G.A. of the State.

2. This Criminal Appeal has been preferred against the judgment and order
dated 30.10.1985 passed by learned Additional Sessions judge (II), Etawah,
in Session Trial No.36 of 1985, convicting and sentencing the appellant to
undergo two years rigorous imprisonment under Section 324 I.P.C.

3. In brief, on April 6, 1984, at 12:00 P.M., PW1- Kishan Bihari went to the
well of the accused Santosh Kumar in Village Jaswantpur, Thana Ajitmal,
district Etawah, to take bath. The well is located near the house of the
accused. When the accused Santosh called him and he did not go, the former
pulled out a country made pistol (Tamancha) from his bag and fired at
Kishan Bihari. At the time of the incident Rambabu and Chakki were also
present. On the day of the incident, the victim's father was not at home, and
due to being alone and afraid, the victim did not go to file a report that day.
The following day, he wrote a written complaint (Ext. ka-1) and based on it,
FIR Ext. ka-6 was recorded. The necessary entry was made in G.D. (Ext.
ka-7). Kishan Bihari's injuries were dressed in Ajitmal and he was sent to
Etawah for a medical examination by Dr. H.N. Singh who prepared the
report as Ext. ka-2. Dr. H.N Singh was of the opinion that the injuries were
                                                          CRLA No. 2940 of 1985
                                 2

caused by firearm. The doctor gave his opinion after reviewing the X-ray
plate (Ext. ka-3) stating that metallic shadows of pellets were found in the
left hand.

4. S.I. Rajendranath Dubey (PW2) was the Investigating Officer of the case
who recorded the statements of the witnesses and supported the prosecution
version .He inspected the site and prepared site map as (Ext. ka-4) and after
the completion of the investigation submitted charge sheet (Ext. ka-5)
against the accused.

5. After closing the prosecution evidence, the statement of the accused
appellant was recorded under Section 313 Cr.P.C. wherein accused denied
the charges and stated that he has been falsely implicated due to village
factionalism and enmity.

6. 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.

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

8. 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.

9. 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.

10. 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
                                                                CRLA No. 2940 of 1985
                                   3

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."

11. 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
     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
                                                              CRLA No. 2940 of 1985
                                  4

     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)."

12. 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.

13. However, on the issue of sentence, it is evident that the appellant is first
time offender. The occurrence is of the year 1984. The appellant has faced
ordeal of trial and an appeal for a long period. The appellant is old and ailing
person, having no criminal history. No adverse material have been produced
regarding his 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 appellant to imprisonment.

14. In the light of the above, as far as it relates with the conviction of the
appellant 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 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 one year 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.
                                                                                           CRLA No. 2940 of 1985
                                                                   5

                                    15. 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.

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

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

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

                                    19. Trial court record shall also be sent back to the learned trial court
                                    concerned.
                                    February 6, 2026
                                    Dev
                                                                               (Mrs. Vani Ranjan Agrawal,J.)




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