RADHEY SHYAM AND ANOTHERversusSTATE OF U.P.

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 879 of 2006

Radhey Shyam And Another
                                                              .....Appellant(s)
                                   Versus
State of U.P.
                                                            .....Respondent(s)

Counsel for Appellant(s)         : J.P. Mishra, S.N. Singh
Counsel for Respondent(s)        : Rakesh Yadav, Govt. Advocate, Shrawan
                                   Kumar Tripathi

Court No. - 93
            HON'BLE MRS. VANI RANJAN AGRAWAL, J.
1. Heard 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 15.2.2006 passed by Additional District and Sessions Judge/F.T.C.
No.1, Basti in Sessions Trial No.152 of 2002 (State vs. Radhey Shyam and
Another) whereby convicting the appellants under section 308 read with
Section 34 I.P.C. and sentencing them to undergo four years R.I. and to pay
a fine of Rs.1000/- each and in default in payment of fine the appellants shall
undergo one month Additional R.I.. Further convicting the appellants under
Section 323/34 I.P.C. for six months R.I. each.

3. Office report dated 9.2.2026 shows that as per report of learned Chief
Judicial Magistrate, Basti appellant No.1 namely Radhey Shyam has
surrendered and has been released on bail on furnishing bail bonds. While
appellant No.2 namely Agya Ram has died on 1.8.2024.

4. In view of the above office report dated 9.2.2026 this appeal stands
abated qua the appellant No.2 namely Agya Ram. Now the appeal
survives only against appellant No.1 namely Radhey Shyam.

5. In a nutshell, the prosecution story is that the complainant Laatu Yadav
R/o village Kadsari Mishra, P.S Lalganj, District- Basti had a land dispute
going on between him and Radheshyam, Hridayaram, Aagyaram and
Jayram. On December 25, 1999 approximately at 9:00 A.M. the accused
were driving stakes (khuta) on disputed land when the complainant along
with his son, grandson and daughter-in-law objected then the accused
persons started assaulting them with lathis, Danda, farsa and ballam (spear).
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On raising alarm, village witnesses namely Karamchand, Amarnath and
others came for rescue. Thereafter, the injured were medically treated in the
hospital. After treatment the complainant submitted a written report as
Exhibit Ka-1 at P.S Lalganj, based on which F.I.R marked as Exhibit Ka-6
was registered and a G.D. entry to this effect was also made and marked as
Exhibit Ka-7. In the said incident injured Ram Chandra, Harivansh and
Chandravati sustained injuries on their person and their medical examination
was done at District Hospital, Basti, which are Exhibits ka-3, Ka-5 and Ka-4
respectively.

The injured Ram Chandra (Son of complainant) sustained following injuries
on his person :

i. Incised wound 0.3 cm x 1 cm x bone deep left side of the head, 11 cm
above right ear.

ii. Bluish Contusion mark 12 cm x 10 cm behind the right eye on the right
side of the head.

iii. Incised wound 1 cm x 0.2 cm deep till muscle on the right side of the
forehead.

As per medical report the injuries sustained by injured Ram Chandra, the
pulse rate of said injured was found slow and was in serious condition and
admitted in the hospital. The injury nos.1 and 3 were caused by sharp edged
weapon and injury no.2 was caused by some blunt object and X-ray was also
conducted of the injured which showed that the paraital bone of the skull
was found broken as Exhibit Ka-2.

The injured Chandrawati (daughter-in-law) sustained the following injuries
:-

i. Abrasion with contusion mark 6 cm x 3 cm on the right side of the
forehead.

ii. Bluish Contusion mark 9 cm x 2 cm on the upper part of the right
shoulder.

iii. Bluish Contusion mark on the lower side of the neck 3 cm x 2 cm.

All the injuries stated were simple in nature and were caused by some blunt
object.

The injured Haribansh (grandson of complainant) sustained the following
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injuries:

i. Abrasion mark 3 cm x 1 cm on the neck 8 cm below the left ear.

ii. Bluish contusion mark 12 cm x 5 cm , 3 cm below the shoulders ; right
side of the back.

iii. Bluish contusion mark 13 cm x 3 cm right side of the back.

iv. Scratch mark 2 cm x 1 cm behind the left elbow.

v. Bluish Contusion mark 8 cm x 3 cm below injury no 2 on the right side of
the back.

vi. Lacerated wound 2.5 cm x 1.5 cm; 10 cm above the right elbow.

As per medical report the injury nos.2, 3, 5 and 6 were caused by some blunt
object and injuries sustained by this injured were found four days stale.

6. The investigation was conducted by Sub-Inspector, Nityanand Singh, who
recorded witnesses statements and prepared the site plan (Ext. Ka-8). A
chargesheet Ext Ka-9 was then submitted against the accused.

7. The prosecution has examined a total of seven witnesses namely Laatu
Yadav (P.W.1), Ram Chandra (P.W.2), Chandrawati (P.W.3), Dr. Vinod
Sachan (P.W.4), Dr. R.D. Khare (P.W.5), Constable Sitaram (P.W 6) and
P.W.7- S.I Nityanand Singh.

P.W 1- Has supported the prosecution version stating that the accused
persons started abusing on the disputed land and cause injuries to his sons,
grandsons and daughter-in-law by affirming his written complaint.

P.W.2-Testified that he was sowing wheat at the time when the incident took
place and stated that the accused persons under common intention started
beating his wife, son and his father (complainant).

P.W.3- Has also supported the prosecution version and has stated that the
accused persons had threatened them for life and assaulted them with
weapons.

P.W 4- Stated that he was posted as a Radiologist in the District Hospital
Basti and had conducted the X-ray of Ram Chandra; affirming the report.

P.W 5- He was posted as Medical officer in District Hopsital Basti and has
affirmed the medical examination reports of the injured witnesses
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Chandrawati, Haribansh and Ram Chandra.

P.W. 6- Approved that he had prepared Chik F.I.R on the basis of written
complaint and has made G.D entries.

P.W.7- He was the investigating officer of the case and has recorded the
statements of the witnesses, prepared site plan and submitted chargesheet
against the accused persons.

8. The statements of the accused persons were taken U/s 313 of Cr.P.C. and
they stated that they have been falsely implicated due to the dispute over the
land. In support of their version, the defence had examined two witnesses as
follows:

D.W.1- Sushil Kumar Srivastava (Pharmacist): He was posted at the
Primary Health Centre, Bankati and has testified the Medical examination
report of the accused Radheyshyam.

D.W.2- Manikant (Record keeper): Stated that during his statement on
25.12.1999 he was there alongwith the G.D in which Rapat No. 19 is
mentioned.

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

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

11. 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.

12. 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.

13. 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
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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."

14. 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
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     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)."

15. Upon considering the record of the case, the evidences available on
record, findings of the 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.

16. However, on the issue of sentence, it is evident that the appellant No.1
Radhey Shyam is first time offender. The occurrence is of the year 1999.
The appellant has faced ordeal of trial and an appeal for a long period. The
appellant is old 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.

17. While upholding the conviction, the sentence imposed by the trial court
is set aside. The appellant No.1 Radhey Shyam is directed to be released on
probation of good conduct for a period of one year and is directed to file two
sureties, each to the tune of Rs.20,000/- along with personal bonds 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. He will not commit any offence during this period and will
not involve in any criminal activities. In case of breach of any of the
conditions, the benefit of probation shall stand cancelled and the appellant
will be required to undergo the original sentence as awarded by the trial
court.

18. The said bonds are to be filed by the appellant within a period of three
months from the date of this judgment.

19. A certified copy of the order be also sent to the court concerned for
compliance.
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                                    20. Trial Court record shall also be sent back to the district court concerned.

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

                                    February 10, 2026
                                    Dev
                                                                                 (Mrs. Vani Ranjan Agrawal,J.)




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