Rafiue and 3 Ors v. The State of U.P

Court No. - 16 Case :- CRIMINAL APPEAL No. - 371 of 2007 Appellant :- Rafiue And 3 Ors. Respondent :- The State Of U.P. Counsel for Appellant :- Raghvendra Pandey,Prabhu Sharan,Sanjay Kumar Singh Counsel for Respondent :- Govt.Advocate Hon'ble Mohd. Faiz Alam Khan,J.

¶1Heard learned counsel for the appellants as well as learned A.G.A. for the State and perused the record.

¶2This appeal has been preferred by the appellants namely Munjani, Chanda and Shera against the judgment and order dated 29.01.2007 passed by the Additional Sessions Judge/F.T.C. Court No.4, Hardoi in Sessions Trial No.724 of 2004 (State vs. Rafique and Others), arising out of Case Crime No.368 of 2001, under Sections 323, 307, 504, 506 I.P.C., Police Station Shahabad, District Hardoi, whereby the appellants were convicted for the offence under Sections 323/34, 324/34, 504, 506 I.P.C. and were sentenced to undergo imprisonment for six months each for committing offence under Section 323 and fine of Rs.200/- each, in default, 15 days extra imprisonment, three years rigorous imprisonment each for committing offence under Section 324 I.P.C. and fine of Rs.500/- each, in default, one month extra imprisonment, six months imprisonment each for committing offence under Section 504 I.P.C. and fine of Rs.100/- each, in default, 15 days extra imprisonment and one year imprisonment each for committing offence under Section 506 I.P.C. and fine of Rs.100/- each, in default, 15 days extra imprisonment. All the sentences were directed to run concurrently.

¶3Learned counsel for the appellants while referring to the judgement and order of the trial court vehemently submits that having regard to the mandatory provisions of Sections 360 and 361 Cr.P.C. as well as Sections 3, 4 and 5 of the Probation of Offenders Act, 1958, the trial court has not considered these mandatory provisions while sentencing the appellants. It is further submitted that it was the mandatory duty of the trial court at the time of sentencing to consider as to whether the convicts/appellants may be given the benefit of the provisions of the Probation of Offenders Act, 1958 as they were admittedly not previous convicts.

¶4It is also submitted that the appellants are not aggrieved by the order of their conviction, but so far as the sentencing part of the judgement is concerned, an opportunity of being heard has not provided to the appellants with regard to providing benefit of the provisions of the Probation of Offenders Act, 1958 and the appellants are challenging the judgement and order of the trial court with regard to the sentencing part only and therefore, the benefit of Section 4 of the Probation of Offenders Act, 1958 be provided to the appellants.

¶5Learned counsel for the appellants vehemently submits that it is a case where only one person namely Zubaida Begum is shown to have sustained injuries and the trial court has convicted the appellants with the help of Section 34 I.P.C. as it failed to assess as to who had made gunshot fire, which had resulted in the one fatal injury found to be on the person of the informant. It is also submitted that the trial court has not taken into consideration the fact that sustaining of injury of any firearm was itself doubtful and it is on this account the trial court has convicted the appellants amongst other under Section 324 I.P.C. only and it was the duty of the trial court to have considered release of the appellants on probation of good conduct and thus the trial court has committed manifest illegality in not extending the benefit of Probation of Offenders Act to the appellants.

¶6Learned A.G.A. would have no objection to the submissions made by learned counsel for the appellants as the trial court has admittedly not considered the applicability of the Probation of Offenders Act, 1958 so far as the appellants are concerned.

¶7Having heard learned counsel for the parties and having perused the record, it is reflected that though the conviction of the appellants as recorded by the trial court pertaining to Sections 323, 324 read with Section 34, 504 and 506 I.P.C. has not been challenged by learned counsel for the appellants and he has restricted his submissions only with regard to the release of the appellants on probation on good conduct under Section 4 of the Probation of Offenders Act, 1958, but in order to satisfy the judicial conscious of this Court, it appears necessary that the finding of the trial court in the background of the evidence produced before it must be considered in order to assess as to whether any illegality has been committed by the trial court in convicting the appellants in relevant penal sections.

¶8Perusal of the record would reveal that the incident in question is shown to have occurred on 01.11.2001 at 04:30pm when ducks of the elder brother of the informant namely Hameedullah had entered into the workshop of the accused persons and a quarrel had started on that issue and thereafter all the accused persons are shown to have assaulted the informant and his wife namely Zubaida Begum and pertaining to this a non cognizable report was lodged in the concerned police station and after 26 days of lodging of the non cognizable report i.e. on 27.11.2001, the injured Zubaida Begum has moved an application to the Superintendent of Police, Hardoi and enclosed therewith medical report of herself of

01.11.2001, wherein radio opaque shadow pertaining to one injury was found in the X-ray and the case was converted into a cognizable case under Sections 323, 324, 504 I.P.C. on 16.11.2001 and after investigation, charge sheet was filed under Sections 323, 307, 504, 506 I.P.C. During the course of trial, four prosecution witnesses namely P.W.-1 Zubaida Begum, P.W.-2 Hameedullah, P.W.-3 Jaheedullah and P.W.-4 Mastullah were produced along with other official witnesses. P.W.-1 Zubaida Begum is the injured witness and all other witnesses of fact are claiming themselves to be eye witness of the incident. P.W.-1 has supported the version of the prosecution and the same is corroborated by medical evidence as well as by other prosecution witnesses, who are eye witness of this crime. Admittedly the nature of injuries found on the person of the injured Zubaida Begum were found to be of simple in nature except one injury pertaining to the radio opaque shadow found in the X-ray.

¶9Trial court after discussing all the evidence produced by the prosecution came to the conclusion that the injury no.1 sustained by Zubaida Begum was neither life threatening nor was inflicted with the intention of causing her death and was of simple in nature and in this background has convicted the appellants for committing offence under Sections 323, 324 read with Section 34, 504, 506 I.P.C. Having considered all the evidence produced before the trial court and also the quality of evidence available before the trial court, in the considered opinion of this Court, no illegality or to say any irregularity has been committed by the trial court in convicting the appellants for the offence under Sections 323/34, 324/34, 504, 506 I.P.C. and thus the judgement and order of the trial court so far as it relates to the conviction of the appellants is not reflecting any illegality and therefore, is affirmed.

¶10Now coming to the next question as to whether the trial court has considered the mandatory provisions of the Probation of Offenders Act, 1958, sections 360, 361 Cr.P.C. and 3, 4, 5 of the Probation of Offenders Act, 1958, the record would reveal that while sentencing, subject to the provisions contained in Sections 3, 4 and 5 of the Probation of Offenders Act, 1958, the trial court has not considered the release of appellants on probation while it is the duty of the convicting court to consider as to whether the appellants/convicts may be released on probation more so when there is no evidence before the trial court of their previous conviction.

¶11Sections 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of considering the release of convicts for providing benefit of Probation of First Offenders Act and are reproduced as under :- "360. Order to release on probation of good conduct or after admonition.--(1) 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).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

¶361Special reasons to be recorded in certain cases.--Where in any case the Court could have dealt with,-- (a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958); or (b) a youthful offender under the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgment the special reasons for not having done so."

¶12For convenience relevant Sections 3, 4 and 5 of The Probation of First Offenders Act, 1958 are also extracted hereunder:- "3. Power of court to release certain offenders after admonition.-- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition. Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.

¶4Power 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.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. 2

(3) When an order under sub-section (1) is made, 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 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.

¶5Power of court to require released offenders to pay compensation and costs.—

(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay—

(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and

(b) such costs of the proceedings as the court thinks reasonable.

(2) The amount ordered to be paid under sub-section (1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.

(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages."

¶13A Division Bench of the Allahabad High Court in State of Uttar Pradesh v. Misri Lal and others, reported in 1982 SCCOnline All 1132 : 1982 CRI.L.J. 1420 held as under :- "25- ...................The application of Section 360 in U.P. was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the U.P. Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 of the Amending Act No. 16 of 1976 amended S.484 of the Code and inserted the following clause (e) after clause (d) :- "(e) .... the United Provinces First Offenders' Probation Act 1938......shall continue in force in the State of Uttar Pradesh .... and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State". 26-Section 361 lays down that where in any case the Court could have dealt with an accused person under S.360 or under the provisions of the Probation of Offenders Act, 1958, or a youthful offender under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgement the special reasons for not having done so. 27-It follows from this provision read with clause (e) of S.484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the U.P. First Offenders' Probation Act, 1938."

¶14Hon'ble Supreme Court in Ved Prakash Vs. State of Haryana, MANU/SC/0256/1980 : (1981) 1 SCC 447 : AIR 1981 SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with section 4 of Probation of Offenders Act,1958, has held as under:- "The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act."

¶15Thus provisions of Probation of First Offenders Act, 1958 shall be followed, in the geographical area where that has been made applicable and not Section 360 of the Cr.P.C. In this way enforcement of Probation of First Offenders Act in some particular area, thus excludes the applicability of the provisions of Section 360 of the Code in that particular area,however it will be the bounden duty of the Court concerned to assign special reasons for the cases which falls under Sections 3, 4 and 5 of the Probation of Offenders Act, 1958 as to why the court is not proceeding to grant the benefit of Probation of Offenders Act, as provided under Section 361 of the Cr.P.C.

¶16Coming to the point of desirability of extending the benefit of Probation Act to the Accused/appellants, in Sitaram Paswan and Anr v. State of Bihar, reported in (2005) 13 SCC 110 : AIR 2005 SC 3534 Hon'ble Supreme Court held as under:- "For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."

¶17In Mohd. Hashim v. State of U.P and Others; AIR 2017 SC 660 :

(2017) 2 SCC 198, Hon'ble Supreme Court opined as under:- "20-.........In Rattan Lal v. State of Punjab, AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:- "The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."

¶18It is to be recalled that the sentencing part of the judgment of the criminal court is independent of the conviction part of the judgement and various relevant factors are required to be considered by the trial court for inflicting appropriate and proportionate punishment and vide Sections 360 and 361 of the Cr.P.C. it is mandatory for the trial court to have seen as to whether the benefit of Probation of Offenders Act, 1958 may be extended to the accused persons having regard to the manner in which the offence has been committed and the evidence which is available against the accused persons/convicts. In the instant case, it appears to be an admitted case that grievous injury has not been found on the person of the injured Zubaida Begum. The trial court has convicted the accused persons under Sections 323, 324, 504, 506 I.P.C. and the informant or State or any victim appears to be not aggrieved by the conviction of the accused persons/appellants in the aforesaid sections. It is also evident that the trial court has failed to assess by whose gunshot fire, fatal injury has been sustained by the injured Zubaida Begum, thus conviction of the appellants under Sections 323, 324 I.P.C. is with the help of Section 34 I.P.C.

¶19It is also evident that the incident in question had occurred in a spur of moment suddenly in a sudden quarrel followed by a sudden fight, thus it is not a case where the incident has been committed by planning the incident and the same has occurred in the heat of moment. Only one injury has been found on the person of injured Zubaida Begum, which is found related to the firearm, however, there are material contradictions with regard to nature of this injury. The appellants/accused persons were admittedly not having any criminal history and they were also not convicted earlier, thus, in the considered opinion of this Court, it was a case where benefit of Probation of Offenders Act, 1958 should have been granted to the appellants/convicts. It is also to be recalled that even after conviction of the appellants in the year 2007, they were released on bail and nothing has been brought before this Court, which may suggest that the appellants in these years have not maintained peace and harmony while about 17 years has passed away since then.

¶20Thus having regard to all the facts and circumstances of the case and for the reasons mentioned herein-before so far as the conviction of the accused appellants is concerned, I find no illegality, irregularity or impropriety in the impugned judgment of the trial court and no interference is required to be made therein, thus conviction of the appellants for the offence under Sections 323, 324 read with Section 34, 504, 506 I.P.C. is hereby affirmed, however, for the reasons mentioned herein before, the sentence inflicted on the appellants/convicts requires interference/modification and for the aforesaid reasons, appellants are entitled to be given the benefit of Probation of Offenders Act, 1958.

¶21Resultantly, the appeal is partly allowed with following modifications:

¶22The conviction of the appellants by the court below under Sections 323/34, 324/34, 504, 506 I.P.C. is upheld. The sentencing of the convicts as imposed by the trial court so far as it relates to the appellants - Munjani, Chanda and Shera is concerned is modified to the tune that they are provided the benefit of Section 4 of Probation of First Offenders Act and they are released on probation on the condition that they will keep peace and good conduct for two years from today and shall file two sureties to the tune of Rs.50,000/- along with their personal bond before the court below and also an undertaking to the effect that they shall maintain peace and good behavior during the period of two years from today. In case any breach of any of the condition mentioned above, is proved, they will be subjected to undergo the sentence as directed by the trial court. The bonds aforesaid will be filed by the accused-appellants within two months from today, before the court below.

¶23As provided under Section 5 of the Act, appellants nos.2 to 4 namely Munjani, Chanda and Shera shall also deposit compensation of Rs.17,000/- (Rupees Seventeen Thousand only) each (Total Rs.51,000/-) in the trial court within two months from today, which the trial court shall, on due identification, shall pay to the victim namely Smt. Zubaida Begum, if she is alive or to her legal heirs as the case may be.

¶24If the amount of Rs.51,000/- (Rs.17,000/- by each of the appellants) is not deposited by the appellants, the trial court shall treat the same as breach of condition of personal bond and shall issue coercive process e.g. warrant of arrest against the defaulting appellants to serve out the punishment as imposed by the trial court.

¶25Let a copy of this judgment as well as the trial court record be transmitted to the concerned trial court forthwith for necessary compliance. Order Date :- 23.04.2024 Anupam S/- High Court of Judicature at Allahabad, Lucknow Bench