The Allahabad High Court has observed that it becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing loses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons.
A Single Bench of Justice Surendra Singh-I heard a Criminal appeal filed by Raj Kumar and Another.
The criminal appeal has been filed against the order dated 14.03.1990 passed by Ist Additional Sessions Judge, Bulandshahr, in Sessions Trial arising out of Case under Sections 323 & 307 IPC, Police Station- Jahangirpur, DistrictBulandshahr.
By the impugned order, the trial court has convicted the appellants, Raj Kumar and Bhoora alias Omi u/s 324/34 and 323/34 IPC with a fine of Rs 2,000/- and Rs 1,000/- each respectively with default clause.
According to the prosecution case about 4-5 days prior to the occurrence in question i.e 17.02.1983 at about 10 a.m, the accused appellants, Raj Kumar and Bhoora were opening fire at their tubewell. Prasadi and his son, Mahavir, who were residents of village- Bhoot Garhi, P.S- Jahangirpur, District- Bulandshahr, were going to their own tubewell.
They objected to the accused whereupon the accused threatened them with dire consequences, if they disclosed the above incident of firing to anybody else. The informant and his son did not convey this information to any of the villagers but the accused suspected the informant and his son.
On 17.02.1983 at about 10 a.m, the accused, Bhoora and Raj Kumar with one other person were running with lathis and gandasa. On the main front of the house of Om Prakash. All the three assailants attacked Mahavir with lathi and gandasa with the intention to kill him. Accused Bhoora attacked Mahavir on his head with the gandasa as a result of which Mahavir fell down. The witnesses Bhoja, Vikram Singh and other villagers assembled on the spot to save Mahavir. The accused ran away towards village- Pahasu. The informant’s wife and other villagers took injured Mahavir to District Hospital, Khurja. Bhoja went to Jahangirpur and informed the informant, Pershadi about this incident. Pershadi then went to Khurja and saw his injured son who was admitted in the hospital. The injured went thereafter to P.S- Jahangirpur and lodged the written report.
On 21.07.1983, another S.I. Mojjam Singh submitted another chargesheet against accused Raj Kumar u/s 323, 307 IPC.
Both the accused were committed to the Court of Sessions by order dated 03.08.1986 passed by the Chief Judicial Magistrate, Bulandshahr.
On 18.01.1989, the court framed charge u/s 323/34 and 307/34 IPC against accused-appellants, Raj Kumar and Bhoora @ Omi. The appellants pleaded not guilty and claimed to be tried for the charge.
On 06.02.1990, the court recorded the statement of the accused-appellants, Raj Kumar and Bhoora u/s 313 Cr.P.C. They have denied the prosecution case and have stated that the prosecution witnesses have given false evidence against them due to enmity. They have also stated that the Investigating Officer has wrongly filed charge-sheets against them.
The accused-appellants have stated in their additional statement that on the date of incident, the informant Pershadi had done marpeet with his father and maternal uncle regarding which first information report was lodged against him. Therefore, he filed a wrong written report against the accused.
It has been argued on behalf of the appellants that FIR has been lodged after a gap of 8½ hours after much delay. It has been argued that informant Pershadi is not an eyewitness and he was not present at the place of occurrence.
It has also been stated that only one accused, Bhoora used sharp-edged weapon balkati (gandasa) for causing injury to Mahavir. The other accused was having a lathi in his hand. There is no evidence of common intention. Accused-appellant, Raj Kumar cannot be held guilty for offence u/s 324 r/w 34 IPC.
It has also been argued that on the date of occurrence of the alleged incident, the informant Pershadi has caused injury to the father of the maternal uncle of the accused and they had lodged a first information report regarding it.
Per contra, A.G.A has argued that on the basis of oral and documentary evidence, the prosecution has proved the charge against the accused-appellants beyond all reasonable doubts and they have been rightly convicted u/s 323/34 and 324/34 IPC and sentenced accordingly.
The Court noted that,
The injured Mahavir has stated in his evidence that one or two days before the incident, he and his father while returning from their kolhu, saw accused-appellants and one other person firing at their tubewell. Accused-appellant and the third person threatened them that they will not tell anyone about the incident. Although Mahavir and his father did not inform anyone about the incident, the accused-appellant had apprehension that they had informed others about the firing incident. Due to that enmity, on the date of occurrence when injured Mahavir and his father Pershadi were standing outside of their house, accused-appellants and one other person attacked. Accused-appellant Raj Kumar was having lathi in his hand and accused-appellant Bhoora was holding balkati (gandasa) with which both of them attacked. On their shouting, Vikram and Bhoja arrived there, seeing them at the place of occurrence. Mahavir has also stated in his evidence that his mother and brother carried him to District Hospital, Khurja, where he was medically examined and given medical treatment. Mahavir has deposed that on being informed, his father Pershadi reached the hospital. Thereafter, he prepared the written report and lodged the FIR in P.S- Jahangirpur, District- Bulandshahr.
From the appreciation of the evidence on record, the Court opined that the prosecution has proved the charge u/s 324/34 and 323/34 IPC against the appellants beyond all reasonable doubts.
Counsel for the appellants has argued that the occurrence took place on 17.02.1983 about 39 years before and on the date of occurrence, accused-appellants were in their teens. They may be granted benefit of the Probation of Offenders Act, 1958.
“These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing loses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentences having regard to the nature of the offence and the manner in which it was executed or committed.
In the light of above discussion, I find no illegality, irregularity or impropriety nor any jurisdictional error in the impugned judgment and order of the court below. The conviction recorded by the court below under Sections 324/34 and 323/34 IPC is upheld and is not required to be disturbed”, the Court observed.
“However, instead of sending the appellants to jail, they shall get the benefit of Section 4 of the Probation of Offenders Act, 1958. Consequently, the appellants shall file two sureties to the tune of Rs 25,000/- coupled with personal bonds and undertaking to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the court below. It is also desirable that accused-appellants may be directed to deposit Rs 4,000/- each as cost and compensation in this case within two months. From the aforesaid amount deposited by the accused appellant, Rs 5,000/- shall be paid to injured Mahavir or in case of his death to his legal representatives. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the judgment in the court concerned as per law and rules. In case surety bonds and compensation is not deposited, appellants shall be sentenced to simple imprisonment for one year”, the order reads.