Allahabad High CourtIshtiyaq And 3 Others. vs State Of U.P. on 18 August, 2022Bench: Ajai Kumar Srivastava-IHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH\n \n \n\nCourt No. - 15\n \n\n \nCase :- CRIMINAL APPEAL No. - 751 of 2002\n \n\n \nAppellant :- Ishtiyaq And 3 Others.\n \nRespondent :- State of U.P.\n \nCounsel for Appellant :- Basant Lal,Jagannath Prasad\n \nCounsel for Respondent :- Govt.Advocate\n \n\n \nHon'ble Ajai Kumar Srivastava-I,J.1.		Vakalatnama filed by Sri Shiv Pal Singh on behalf of the appellants is taken on record.2.		Heard Sri Shiv Pal Singh, learned counsel for the appellants and learned A.G.A. for the State as well as perused the entire record.3.		The present criminal appeal has been filed to assail the judgment and order dated 30.04.2002 passed by learned Additional District and Sessions Judge (Fast Track Court No.2), Sitapur in Sessions Trial No.1334 of 1997 (State Vs. Ishtiyaq and others), arising out of Case Crime No.11 of 1996, underSections 323/308/504I.P.C., Police Station Than Gaon, District Sitapur whereby the appellants have been convicted underSection 308I.P.C. and sentenced to undergo rigorous imprisonment for two years.4.		The prosecution case, in brief, is that on 12.02.1996 at about 02:00 P.M., a goat belonging to Mohd. Sharif, appellant no.3 grazed the field of the first informant, Mustafa, which was objected by him. Annoyed by this, the appellants armed with lathi and danda came to the spot and assaulted his nephew Habib and wife Nazima. On commotion, Ram Kumar and Pratap etc. also reached on the spot and somehow subsidized the matter. The appellants were also hurling abuses.5.		On the basis of aforesaid written report, Case Crime No.11 of 1996, underSections 323/308/504I.P.C. at Police Station Than Gaon, District Sitapur came to be lodged against the appellants.6.		The Investigating Officer recorded statements of witnesses underSection 161Cr.P.C. He visited the place of occurrence and prepared a site plan thereof as Ex. Ka-5. Upon conclusion of investigation, he submitted charge sheet, Ex. Ka-6 against the appellants under Section 323, 308, 504 I.P.C.7.		The appellants were charged underSections 323,308,504I.P.C., who denied the charges and claimed to be tried.8.		The prosecution, in order to prove its case, has examined P.W.-1, Mustafa, P.W.-2, Habib, P.W.-3, Nazima, P.W.-4, Constable Vishwapal Singh, P.W.-5, Narendra Singh Bhadauria, P.W.-6, Sub Inspector Ajai Kumar Singh, P.W.-7 and Dr. R.K. Srivastava, Radiologist.9.		In their statements recorded underSection 313Cr.P.C., the appellants have claimed innocence. They have also stated the prosecution story to be false and concocted. Their submission is that they came to be convicted against the weight of evidence which is not sustainable.10.		The appellants, by means of impugned judgment and order dated 30.04.2002 came to be convicted as aforesaid. Hence this appeal.11.		Foremost contention of learned counsel for the appellants is that the learned trial court has lost sight of the fact that the appellants are real brothers of the first informant. They live in the same village. The matter pertains to the year 1996. The appellants have already undergone traumatic fase of about 26 years while facing trial as well as pendency of this appeal. They are neither prior convicts nor do they have any criminal antecedents. Therefore, the learned trial court committed error in not granting them benefit of theProbation of Offenders Act, 1958. He has very fairly stated that in case the appellants, due to aforesaid reasons, are granted benefit of probation, in that case the learned counsel for the appellants would not dispute the finding of guild recorded against the appellants.12.		Per contra, learned A.G.A. for the State has opposed the prayer by submitting that the appellants were rightly convicted by the learned trial court by means of impugned judgment and order dated 30.04.2002. Learned trial court had held the appellants guilty after careful scrutiny of the testimonies of the prosecution witnesses. However, learned A.G.A. has fairly submitted that there is nothing on record to show that the appellants have any prior criminal antecedents. He has also not disputed the fact that the appellants and the first informant are real brothers and they reside in the same village.13.		Having regard to the submissions advanced by learned counsel for the appellants and learned A.G.A. for the State and upon a close scrutiny of the testimonies of the prosecution witnesses, this Court finds that the first informant, Mustafa was examined as P.W.-1, who in his testimony has not supported the prosecution case and was declared hostile. However, the injured Habib, P.W.-2 and injured Nazima, P.W.-3 in their testimonies have supported the prosecution case. They were examined by P.W.-5, Dr. Narendra Singh Bhadauria who has prepared their injury report as Ex. Ka-3 and Ex. Ka-4 respectively. The duration of injuries are reported to be fresh and their nature is admittedly simple. This fact corresponds to the time and manner of occurrence as stated by the prosecution.14.		Thus, in view of the aforesaid, no fault with the finding of guilt of appellants underSection 308I.P.C. can be found, which is accordingly affirmed.15.		It would be just and proper to quoteSection 4of Probation of Offenders Act, 1958:-"4. (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.(2) Before making any order under sub-section (1) is made, the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.(3) When an order under sub-section (1), the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order or impose such conditions as it deems necessary for the due supervision of the offender.(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."16.		It is also relevant to quoteSection 11of Probation of Offenders Act, 1958, which reads as under:-"11. Courts competent to make order under the Act, appeal and revision and powers of courts in appeal and revision.--"(1) Notwithstanding anything contained inthe Codeor any other law, an order under this Act, may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.(2) Notwithstanding anything contained inthe Code, where an order undersection 3orsection 4is made by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of the former court.(3) In any case where any person under twenty-one years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him undersection 3orsection 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, notwithstanding anything contained inthe Codeor any other law, the court to which appeals ordinarily lie from the sentences of the former court may, either of its own motion or on an application made to it by the convicted person or the probation officer, call for and examine the record of the case and pass such order thereon as it thinks fit.(4) When an order has been made undersection 3orsection 4in respect of an offender, the Appellate Court or the High Court in the exercise of its power of revision may set aside such order and in lieu thereof pass sentence on such offender according to law: Provided that the Appellate Court or the High Court in revision shall not inflict a greater punishment than might have been inflicted by the court by which the offender was found guilty."17.		This Court in the case ofSubhash Chand & others vs. State of U.P.1, 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:-30. "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 appellante courts. The Registrar General of this Court is directed to circulate copy of this Judgement 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 Judgement. 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."18.		The Hon'ble Apex Court inState of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand& others2 has extended the benefit ofProbation of Offenders Act, 1958 to the appellants, and observed as under:-"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 theProbation 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."19.		Similarly, inJagat Pal Singh & others vs. State of Haryana3, the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons underSections 323,452,506IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.20.		Thus, having regard to the age and relationship and also keeping in view that the P.W.-1, Mustafa, the first informant did not support the prosecution case and was declared hostile, they are real brothers and live in the same village, the sentence is modified to the extent that instead of sentencing the  appellants, to the jail, they shall get the benefit ofSection 4of the Probation of Offenders Act, 1958. Further, the appellants shall file two sureties each to the satisfaction of the court concerned coupled with personal bonds to the effect that they shall not commit any offence and shall be of good behaviour and shall maintain peace during the period of two years. The bonds aforesaid be filed by the appellants within eight weeks.21.		In case of breach of any of the above conditions, the appellants shall be taken into custody and shall have to undergo sentence awarded to them.22.		With the above modification, the instant criminal appeal is partly allowed.23.		The appellants are directed to file a personal bond and two sureties in the like amount each to the satisfaction of the court concerned in compliance ofsection 437-ACr.P.C. within six weeks from today.24.		A copy of this order be communicated to the trial Court concerned for necessary information and compliance through e-mail/fax.(Ajai Kumar Srivastava-I, J.)\n \n\n \nOrder Date :- 18.8.2022\n \nSaurabh