RAM KISHANversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 581 of 1997

Ram Kishan
                                                              .....Appellant(s)
                                   Versus
State of U.P.
                                                            .....Respondent(s)

Counsel for Appellant(s)              :   Mukti Nath Dwivedi, S.Singh
Counsel for Respondent(s)             :   Govt. Advocate

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

1. This criminal appeal has been filed against the judgment and order dated
16.02.1997 passed by the III Additional District and Sessions Judge,
Shahjahanpur, in Sessions Trial No. 351 of 1990 under Section 308 I.P.C.,
whereby the appellant was convicted and sentenced to three years' rigorous
imprisonment along with a fine of Rs. 2,000/-.
2. Heard Sri Mukti Nath Dwivedi, learned counsel for the appellant and Sri
Rahul Asthana, learned A.G.A. for the State.
3. According to the prosecution case, the informant Mahendra Singh was
informed by his uncle Tej Singh that his cousin, Vinod Singh, was lying
injured in an orchard situated in village Meervanshpur. Upon receiving
information, the informant, Mahendra Singh, along with Naresh Pal Singh,
Braj Singh and other relatives went to the orchard and brought Vinod Singh
back. Thereafter, the informant lodged a written report of the incident at
Police Station Cantt. at about 8.30 p.m. On the basis of the written report, a
case under Section 324 and 308 I.P.C. was registered against unknown
persons and investigation commenced.
4. The injured, Vinod Singh, was medically examined on 26.04.1990 at
about 10.00 a.m., at the District Hospital, where he was admitted for
treatment. During investigation, the Investigating Officer inspected the place
of occurrence, prepared the site plan and recorded the statement of
witnesses.
5. The injured, Vinod Singh, stated that a few days prior to the incident,
accused Ram Kishan had uprooted gram plants from his agricultural field,
regarding which his mother has complained to Ram Kishan, he fell offended
by the complaint and started bearing enmity towards them. Vinod Singh
further stated that on 25.04.1990, after attending a feast at the house of
Naurang Singh in his village, he returned home at about 09.00 p.m. On
                                                           CRLA No. 581 of 1997
                                2

reaching home, he saw accused Ram Kishan abusing his mother in filthy
language due to which his mother started crying. Enraged by this conduct, he
assaulted Ram Kishan with two stick blows and drove him away from his
house.
6. Thereafter, he went to the engine of Natthu and after some time returned
home. He informed his mother that he was going to the agricultural field to
guard the wheat crop. Although his mother advised him not to go during the
night, he nevertheless proceeded towards the field. When he reached, the
southern corner of the orchard at about 11.15 p.m,, accused Ram Kishan
suddenly emerged from behind a ground tree and started abusing him in
filthy language and assaulted him with a sharp edged weapon causing him to
fall down. Co-accused Angreja Devi, mother of Ram Kishan was also
present on spot and assaulted him. The accused persons exhorted that he
should be killed. Thereafter, Rajendra assaulted him with a stick and thrust it
into his mouth, causing a tear injury to his left cheek. Ram Kishan also
struck him on the face with the handle of a lathi. Thereafter, he became
unconscious and the accused persons continued assaulting him. He regained
consciousness only at the hospital.
7. On the basis of the statement of injured, the names of the accused persons
came to light. After completion of investigation and collection of other
evidences and materials charge-sheet was submitted against accused Ram
Kishan and Angreja Devi for offence under Section 324 and 308 read with
Section 34 I.P.C.
8. Charges were framed. Accused persons pleaded not guilty and claimed
trial.
9. The prosecution has examined P.W.-1 the complainant Mahesh Singh,
P.W.-2 Tej Singh, P.W.-3 Vinod Singh, P.W.-4 Dr. K.K. Saxena, P.W.-5 Dr.
Anil Sood, P.W.-6 Sub-Inspector Surajbhan, and P.W.-7 Constable Revti
Prasad Sharma.
10. The accused persons in their statements recorded under Section 313
Cr.P.C., denied the prosecution allegations and stated that the witnesses has
falsely deposed against them. It was specifically pleaded that Vinod Singh
had falsely implicated them due to previous enmity. The defence version
was that the orchard belonging to Vinod Singh was jointly recorded in the
revenue records along with the accused persons and that Vinod Singh had
got a Shisham Tree cut without seeking permission from them. When
objected to, he became annoyed and on account of such enmity, lodged the
false case against the accused persons.
11. After hearing the arguments advanced by both the parties and upon
appraisal of the oral and documentary evidence available on record, the trial
                                                                CRLA No. 581 of 1997
                                   3

court came to the conclusion that the prosecution had successfully proved its
case against the accused persons under Section 308 of the Indian Penal
Code. Consequently, accused Ram Kishan was convicted and sentenced to
three years rigorous imprisonment along with a fine of Rs.2000/- out of the
amount of the fine imposed a sum of Rs.1000/- was directed to be paid to the
injured Vinod Singh as compensation.
12. Aggrieved by the judgment and order of conviction, the accused
appellant preferred the present criminal appeal on the ground that the
conviction of the appellant is against the weight of evidence on record and
bad in the eyes on law, the sentence imposed is too severe and excessive.
13. At the time of hearing of arguments, learned counsel for the appellant
submitted that the appellant did not wish to challenge the finding of
conviction recorded by the learned trial court on merits. It was, however,
contended that the criminal case had remain pending for nearly 30 years and
during the said period, the appellant had suffered the agony of prolonged
criminal proceedings.
14. It was further submitted that the appellant had no criminal antecedents.
He is poor person earning his livelihood through agriculture and labour work
and there was no evidence of any previous conviction against him. He is
having no other criminal history. On the aforesaid grounds, prayer was made
that the appellant be extended the benefit of probation.
15. Having considered the submissions advanced by learned counsel for the
appellant and upon perusal of the entire evidence available on record, this
Court finds that the injured witness himself has specifically attributed the
role of assault to the appellant. His testimony stands fully corroborated by
the medical evidence, documentary evidence and the statements of doctor. In
such circumstances, there is no reason to believe that some other persons
caused injuries to the injured and the appellant has been falsely implicated.
16. The finding of the conviction recorded by the trial court, therefore, does
not warrant any interference and is liable to be affirmed.
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
                                                                  CRLA No. 581 of 1997
                                   4

     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 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. However, considering the facts and circumstances of the case,
particularly, the long lapse of time, the absence of any criminal history, the
socio-economic condition of the appellant and the fact that he has faced
                                                                                                CRLA No. 581 of 1997
                                                                    5

                                    criminal proceedings for about three decades, this Court is of the view that
                                    the appellant deserves to be extended the benefit of Section 4 of Probation of
                                    Offenders Act.
                                    20. Accordingly, while affirming the conviction of the appellant under
                                    Section 308 I.P.C., the sentence awarded by the trial court is set aside. The
                                    appellant is directed to be released on probation of good conduct for a period
                                    of one year on furnishing personal bonds and sureties to the satisfaction of
                                    the court concerned, subject to the condition that he shall maintain peace and
                                    good behaviour during the said period.
                                    21. The appeal is partly allowed with above modification.
                                    22. The said bonds are to be filed by the appellant within a period of one
                                    months from the date of receipt of certified copy of this judgment.
                                    23. In case of breach of any of the conditions, the appellant shall be taken
                                    into custody and shall have undergo sentence awarded to him.
                                    24. 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.
                                    May 8, 2026
                                    P. Pandey
                                                                                (Mrs. Vani Ranjan Agrawal,J.)




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