Partly allowed

Shiv Poojan and Others v. State

Allahabad HC22 Feb 2018CRLA/795/1987

Case brief

AI extract

What is this about?

This appeal challenged the sentence imposed on a juvenile appellant. The court held that since the appellant was a juvenile at the time of the offence, the imprisonment and fine were unsustainable. The sentence was modified to a probation of good conduct for two years.

What did the court decide?

Sentence modified to two years probation of good conduct; imprisonment and fine quashed; conviction maintained.

Shiv Poojan and Others Vs State — Service and Employment | Allahabad HC (2018)

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 795 of 1987 AFR

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Appellant :- Shiv Pujan Singh and another Respondent :- State Counsel for Appellant :- K.S. Kushwaha Counsel for Respondent :- A.G.A.

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Hon'ble Arvind Kumar Mishra-I,J.

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By way of the instant appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 04.03.1987 passed by III-Additional Sessions Judge, Ghazipur, in Session Trial No.64 of 1985 State Vs. Shiv Pujan Singh and another, arising out of Case Crime No.120 of 1983 under Sections 325/34, 323/34 IPC, Police Station- Suhwal, District- Ghazipur, whereby appellants have been sentenced to six months simple imprisonment coupled with fine Rs.250/- under Section 325 read with Section 34 IPC and one month simple imprisonment under Section 323 read with Section 34 IPC. On realization of the amount of fine, Rs.400/- was directed to be paid to Shiv Mangal Singh. Both the sentences were ordered to concurrently.

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Relevant to mention that the appellant no.1 Shiv Pujan Singh died during pendency of the appeal. Therefore, the appeal qua appellant no.1 Shiv Pujan Singh stood abated vide order of this Court dated 15.02.2018.

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Heard Sri Ramesh Chandra Yadav, learned counsel for the sole appellant, Sri B.D. Nishad and Sri Sushil Kumar, learned AGAs for the State and perused the record.

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Since the order of conviction passed by the learned trial Judge has not been assailed and has been admitted to the appellant, therefore, it would not be in the fitness of things that a detailed

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narration of the incident is sketched as that would serve no worthy purpose. Though the entire facts and circumstances of the case have been taken into consideration and described in the impugned judgment but for the proper understanding of the case, it would be feasible in the interest of justice that a mention of the relevant facts is made.

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The prosecution story as unfolded from the record appears to be that the incident took place on 09.08.1983 at about 10:00 a.m. over the land of the forest department situated in the village of the informant when the appellant in company with another accused appeared on the scene and they started beating Shiv Mangal Singh and on alarm being raised, several persons arrived on the spot and they intervened and challenged the assailants, whereupon they secured their escape good after threatening the informant side. The report was lodged as non-cognizable report (NCR) at Police Station Suhwal, District Ghazipur on the aforesaid day at 5:00 p.m.

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Relevant to take note of fact that counter allegations were made by moving a complaint by the accused side also against the informant side wherein the allegations involving Sections 395 and 397 IPC were made and that Session Trial was numbered as 63 of 1985, whereas, this Session Trial was numbered as 64 of 1985. The judgments in both the aforesaid Session Trials were delivered by the same Presiding Officer, Sri O.P. Srivastava, on the very same day 04.03.1987.

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After medical examination of the injured and after disclosure of injury of fracture on the left forearm of Shiv Mangal Singh, Section 325 IPC was also added by the police.

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The investigation ensued and S.I. Devendra Singh PW-4, the Investigating Officer as the investigation progressed recorded statement of various prosecution witnesses including the informant and took note of the concerned check FIR and relevant entry made

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in general diary. He proceeded towards the place of occurrence and prepared site plan. After completing the entire investigation, charge sheet was filed by the Investigating Officer.

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Consequently, the case was committed to the court of Sessions from where it was transferred for conduction of trial and disposal to the aforesaid trial court i.e. Additional Sessions Judge, Ghazipur who after hearing the accused on point of charge and also after hearing the prosecution and perusing the record was satisfied with prima facie case against the accused and, accordingly, framed charges under Sections 323/34 and 325/34 IPC. Charges were read over and explained to the accused who abjured charges and opted for trial.

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Thereafter, the prosecution was required to adduce its testimony in support of the charges in order to establish guilt of the accused-appellant beyond reasonable doubt. In turn, the prosecution produced in all five witnesses, a casual reference of whom is given here in below:

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Shiv Mangal Singh PW-1 is the informant. Ram Bilas PW-2 and Bhanu Pratap Singh PW-3 are eyewitness of the incident. Devendra Singh PW-4 is the Investigating Officer who has filed charge sheet against the accused. Dr. P.C. Srivastava PW-5 has examined the fracture on the left forearm of the injured Shiv Mangal Singh.

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Except as above, no other testimony was adduced by the prosecution.

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Therefore, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein it was counter-claimed that the accused side sustained injury and was beaten by the informant side and a cross case was stated to have been lodged against the informant side. Insofar as fact of injury being caused on the informant side is concerned, it has been specifically stated by the accused that these

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injuries were caused on the informant side while the accused were acting in self-defence and the present case has been lodged against the accused in order to make false excuse and to save the informant side from the cross case.

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The defence also got examined Constable Ganga Dayal Singh of Police Station Suhwal District Ghazipur as DW-1 and Shiv Pujan Singh as DW-2. Apart from that, the defence also filed some documentary evidence which is very much available on record.

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Thereafter, evidence for the defence was closed and the case was posted for arguments.

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Learned trial Judge after hearing the parties on merit recorded aforesaid finding of conviction against the accused-appellant and sentenced him to six months simple imprisonment coupled with fine Rs.250/- under Section 325 read with Section 34 IPC and one month simple imprisonment under Section 323 read with Section 34 IPC vide impugned judgment and order dated 04.03.1987.

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Hence, this appeal.

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At the very outset, learned counsel for the appellant has submitted that insofar as finding of conviction is concerned, the same is not objected and assailed for the time being and the claim so made against conviction is relinquished. However, he will extend argument on point of quantum of sentence awarded by the trial court.

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With that view in mind, learned counsel for the appellant has submitted that the impugned judgment and order of conviction dated 04.03.1987 passed by the trial court is not sustainable in the eye of law as it has not properly appreciated the testimony on record and has not scrutinized the same vis-a-vis facts and circumstances of the case. The accused side also lodged the report against the informant side involving Sections 395, 397 IPC and the proceeding

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was undertaken.

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The fact is that the appellant Kailash Singh was juvenile on the day of the occurrence which is 08.09.1983 and he had already appeared in J.J.R. Inter College Asawan Nagsar, Ghazipur for High School Examination in the year 1981, bearing Roll No.594961. Photocopy of the mark-sheet of High School Examination -1981 produced before this Court is taken on record, on the basis of which, it was claimed that the date of birth of the accused is 01.07.1967, counting from that date, the day of occurrence falls around 16 years, it means that the appellant is entitled to the claim of juvenility and he can not be imprisoned and the sentence so awarded is in derogation to the various provisions and mandate contained under the Juvenile Justice (Care and Protection of Children) Act, 2015. The appellant should, under aforesaid peculiar facts and circumstances of the case, be given benefit of Section 4 of the Uttar Pradesh First Offenders Probation Act, 1938.

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It has been further urged that the appellant deserves to be released on probation, for the reason that the instant appeal has been pending since 1987 and after elapse of more than thirty years, no adverse report or any instance of he being being involved in commission of any offence or action or criminal activity has not been reported by the police. The appellant neither carries any previous criminal history nor was ever involved in any case of conviction. Therefore, specific claim for modification of sentencing part of the impugned judgment is being made to the extent that the appellant may be released under the provisions of Section 4 of Uttar Pradesh First Offenders Probation Act, 1938.

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Per contra, learned AGA has supported the conviction and sentence so awarded by the trial court. However, he has not disputed fact that High School Mark Sheet -1981 bears name of the appellant Kailash Singh, date of birth of the appellant to be

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01.07.1967 and juvenility of the appellant which is slightly above 16 years of age on the day of the occurrence. He has also not disputed the claim that it being factual situation, the advantage of the provision of the Uttar Pradesh First Offenders Probation Act, 1938 may be given to the appellant.

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Considered the rival submissions and veracity of the claim so made. Obviously, it is established fact that in this case, the appellant Kailash Singh was juvenile in conflict with law on the date of occurrence, therefore, he can not be sentenced that way as done by the trial court. He can be released on probation of the good conduct and in view of the fact that more then thirty years have elapsed ever since the incident took place and the conviction recorded by the trial court vide impugned judgment and order dated 04.03.1987.

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Therefore, the sentence of imprisonment and fine imposed under Sections 325 read with Section 34 and 323 read with Section 34 is hereby modified to the extent that the appellant shall keep peace and be of good behaviour for a period of two years (to be counted from the date of delivery of judgment by the trial court i.e. 04.03.1987). A personal bond along with two solvent sureties each for Rs.20,000/- shall be furnished by him before the District Probation Officer concerned which shall be deemed to be a bond, in fact, retrospectively effective from the date of delivery of judgment 04.03.1987 up to 03.03.1989. It means that the period so prescribed had already elapsed but the procedure of law should be followed and completed in all respect and the appellant is bound to furnish a bond and in case the appellant fails to furnish a bond within one month from today, he shall be proceeded with by the trial court in accordance with law.

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Accordingly, sentencing part of the impugned judgment and order of conviction dated 04.03.1987 passed by III-Additional Sessions Judge, Ghazipur, in Session Trial No.64 of 1985 State Vs.

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Shiv Pujan Singh and another, arising out of Case Crime No.120 of 1983 under Sections 325/34, 323/34 IPC, Police Station- Suhwal, District- Ghazipur, is hereby modified to the aforesaid extent while conviction is maintained.

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The instant appeal is allowed, partly in aforesaid terms.

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In this case, the appellant is on bail. He need not surrender before the court below. However, the appellant shall ensure compliance of Section 437A Cr.P.C.

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Let a copy of this order/judgment be certified to the court below for necessary information and follow up action. Order Date :- 22.02.2018

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Shiv Poojan and Others v. State

Case brief

What is this about?

What did the court decide?

Shiv Poojan and Others v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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