Partly allowed

Banshu @ Bansraj v. State of U.P.

Allahabad HC2 Nov 2022CRLA/1548/1995

Case brief

AI extract

What is this about?

In a criminal appeal arising from conviction for voluntary causing hurt and criminal intimidation, the High Court emphasized the application of the Probation of Offenders Act, 1958, allowing the appellant beneficiaries to be released on probation with a personal bond and compensation to the victims instead of immediate imprisonment.

What did the court decide?

Appellants released on probation under Section 4, Probation of Offenders Act, 1958, executing a bond of Rs. 20,000 each with two sureties for one year, to maintain peace and abstain from intoxicants;

Banshu @ Bansraj Vs State of U.P. — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 93

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Case :- CRIMINAL APPEAL No. - 1548 of 1995 Appellant :- Banshu @ Bansraj and two others Respondent :- State of U.P. Counsel for Appellant :- Vivek Misra,Narendra Kumar Shukla,Rajeev Patel Counsel for Respondent :- G.A.

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Hon'ble Surendra Singh-I,J.

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Heard Sri Narendra Kumar Shukla, learned counsel for the appellant and Sri Sunil Kumar Tripathi, learned AGA appearing for the State.

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2. This criminal appeal has been filed against the judgment and order dated 31.08.1995 passed by Special/Additional Sessions Judge, Jaunpur in S.T. No. 52 of 1993 (State vs. Banshu alias Banshraj and three others) arising out of Case Crime No.42 of 1992 under Sections 436, 336, 323, 504 and 506 IPC, P.S. Barsatti, District Jaunpur.

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3. The trial court has convicted accused appellants Banshu alias Banshraj and Nanku sons of Sumer Pasi, Mahant and Nanku sons of Shiv Ram Pasi under Sections 323/34.IPC and sentenced them to undergo one month rigorous imprisonment. The trial court has acquitted all accused of all the charges levelled against them under Section 436/34, 336/34, 504 and 506 IPC.

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4. During pendency of the criminal appeal, the appellant no. 2 Nanku son of Sumer Pasi has died and criminal appeal qua Nanku has abated. Thus, the criminal appeal filed by the appellants Banshu alias Banshraj son of Sumer Pasi and Mahanth and Nanku sons of Shiv Ram Pasi is to be decided by this Court.

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5. According to prosecution storey, on 24.3.1992 at 10.00 am, when the informant Nand Lal son of Raja Ram, resident of village Sarsara, was having his meal near a thatched adjacent to pig farm, the accused Banshu alias Banshraj and Nanku sons of Sumer Pasi and Mahanth and Nanku sons of Shiv Ram Pasi came there and started demolition of his thatched hut. The informant forbid them from doing so, they started beating him as well as his wife Dharma Devi and daughter Sarita with lathi and danda and burnt his thatched hut. The incident was witnessed by Ramdhani and Mehilal Bind, resident of same village. The accused appellants have abused the informant and his family members and threatened to kill them. The informant lodged an FIR in concerned police station. The informant Nand Lal, his wife Dharma Devi and daughter Sarita was medically examined. The simple injury was found on their person. After investigation, the Investigating Officer submitted charge-sheet against the accused persons.

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6. On 05.2.1993, the trial court framed charges under Sections 436 read with Section 34, 336 read with Section 34 and 323 read with Section 34, 504 and 506 against the accused appellants. The accused denied the charge and claimed trial.

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7. In support of the charge, the prosecution has examined informant PW 1 Nand Lal, PW 2 Smt. Dharma Devi, PW 3 Dr. R.P.Tiwari, PW 4 Ramdhani, PW 5 Investigating Officer, Bhoolan Singh and PW 6 Head Constable Phool Chand.

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8. The informant PW 1 Nand Lal has proved by his evidence that on the day of occurrence, the accused appellants were demolishing his thatched and on being forbidden from doing so, the accused appellants Banshu alias Banshraj, Mahanth and

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Nanku started beating him as well as his wife Dharma Devi and daughter Sarita with lathi and danda. The informant has also proved that soon after incident, he submitted written report (Ext.Ka.1) in concerned police station and first information report was lodged against the accused persons. He has also deposed that through police station, he, his wife Dharma Devi and daughter Sarita Devi were sent to government hospital where they were medically examined.

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9. The wife of informant Nand Lal, PW 2 Dharma Devi has also deposed in her evidence that when his husband was taking his meal, the accused persons had started demolition of their thatched and on being forbidden, they started beating her, her husband and her daughter with lathi and danda and also burnt the thatched.

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10. PW 4 Ramdhani has expressed his ignorance about the incident. He was declared hostile and cross-examined by prosecution. PW 5 Investigating Officer and PW 6 Head Constable Boolan Singh have proved the prosecution papers i.e. chik FIR, entry of institution of case in general diary, site plan of the place of occurrence, memo relating to taking possession of the burnt thatched hut and submitted chage sheet in this case.

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11. PW 3 Dr. R.P.Tiwari, who was posted at medical officer in Primary Health Centre Barsatti, District Jaunpur has examined the informant Nand Lal on 24.03.1992 at 5.25 PM and found following injuries on his person.

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(i) Contusion and abrasion on the dorsal of left hand from below left wrist joint size by 4cm x 2 cm reddish in colour.

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(ii) Contusion on left side back of chest in scapular region 7 cm below spinous process of left scapula obliquely placed sized by 7 cm x 2 cm reddish in colour.

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(iii) Complaint of pain in scalp but no visible injuries seen. In the opinion of Dr. R.P. Tiwari about injuries are caused by hard and blunt object and simple in nature about half days old.

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12. On medical examination of PW 2 Smt. Dharma Devi on 24.3.1992 at 6.05 PM by Dr. R.P.Tiwari, following injuries were found on her person.

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(i) Abrasion on left heel 3 cm below right lateral yorexbone size by 1 cm x 1 cm reddish in colour.

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(ii) Complaint of pain on back side but no visible injuries seen. In the opinion of Dr. R.P. Tiwari, above injury is caused by hard and blunt object and simple in nature about half days old

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13. PW 3 Dr. R.P.Tiwari has also examined Sarita daughter of Nand Lal on 24.3.1992 at 5.40 PM and she was found following injuries on her person

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(i) Lacerated wound on scalp 15 cm above root of nose. Injury was skin deep. His margins were irregular. Injury was caused by hard and blunt object and simple in nature about half days old.

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14. The injuries received on the person of all the injured were simple in nature. They were about half day old and they were caused by hard and blunt object. The defence has crossexamined the witnesses of PW 1 Nand Lal and PW 2 Smt. Dharma Devi but in their cross-examination nothing was found which can raise doubt about the veracity of their deposition. The presence of these witnesses at the time of occurrence is evident from the injuries received by them on their person. The deposition of PW 1 Nand Lal and PW 2 Dharma Devi appears to

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be truthful and reliable. The oral evidence of PW 1 and PW 2 has been corroborated by the documentary evidence i.e. written report, chik FIR, copy of general diary of registration of the case, injury reports of Nand Lal, Dharma Devi and Sarita and site plan and the charge sheet prepared and submitted by the Investigating Officer.

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15. The defence has submitted DW 1 Mehilal Bind in support of his defence. He has simply mentioned that on the order of Sub-Divisional Magistrate, Naib Tehsildar has dispossessed the accused three months prior to the occurrence. DW 1 has not rebutted the deposition of PW 1 Nand Lal and PW 2 Dharma Devi regarding the assault being made on them by lathi and danda by accused on the day of occurrence causing bodily injured on their person.

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16. From above discussions and appreciation of evidence, the Court comes to the conclusion that the prosecution by oral and documentary evidence has proved beyond reasonable doubt the charge under Section 323/34 against the accused Banshu alias Banshraj, Mahanth and Nanku. The trial court has rightly convicted the accused under Section 323 read with Section 34 IPC.

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17. During pendency of the criminal appeal, the appellant no. 2 Nanku son of Sumer Pasi has died and criminal appeal qua Nanku has abated. Thus, the criminal appeal filed by the appellants Banshu alias Banshraj son of Sumer Pasi and Mahanth and Nanku sons of Shiv Ram Pasi is being decided by this Court.

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18. From the above discussion, the Court has come to the conclusion that the conviction order passed by the trial court against the accused appellants namely Banshu alias Banshraj, Nanku and Mahanth has no force and is liable to be rejected.

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19. Learned counsel for the appellant has argued that the informant injured and accused appellants all are resident of the same village Sarsara, P.S. Barsatti, District Jaunpur. The occurrence took place on 24.3.1992, about thirty years have passed. They are living in peace and there is no dispute between them. The appellants may be granted benefit of Probation of Offenders Act, 1958.

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20. Sections 4, 5 and 6 of the Probation of Offenders Act, 1958 reads as follows :-

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“4. Power of court to release certain offenders on probation of good conduct.

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(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.

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(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.

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(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

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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.

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(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.

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(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.

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

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(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—

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(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.

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(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.

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(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.

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6. Restrictions on imprisonment of offenders under twenty-one years of age.—

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(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him 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 offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

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(2) For the purpose of satisfying itself whether it would not be desirable to deal under section 3 or section 4 with an offender referred to in subsection (1) the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.”

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21. A similar provision finds place in the Code of Criminal Procedure. Section 360 Cr.P.C. provides:

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“360. Order to release on probation of good conduct or after admonition.

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(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:

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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).

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(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.

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(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.

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(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.

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(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.

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(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.

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(7) The Court, before directing the release of an offender under subsection (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.

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(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.

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(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 sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

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(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.”

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22. 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 looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment,

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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 sentence having regard to the nature of the offence and the manner in which it was executed or committed.

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23. In the case of Subhash Chand and others vs. State of U.P., 2015 Lawsuit (Alld) 1343, this court 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:

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"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 appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgment 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 Judgment. 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."

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24. In addition to the above judgment of this Court, this Court finds that the Hon'ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659, giving the benefit of Probation of Offenders Act, 1958 to the accused has observed as below:

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"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 the Probation 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."

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25. Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon'ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC 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.

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26. Considering the facts and circumstances of the case and the law propounding by Hon’ble Supreme Court and High Court it is desirable that the appellant accused Banshu alias Banshraj, Mahanth and Nanku should be given benefit of Section 4 and 5 of the Probation of Offenders Act and they should be released on probation on the condition that they shall observe good behaviour and maintain peace and abstain from intoxicating drink. It is also desirable that the accused appellants be directed to pay compensation to the informant injured Nand Lal, Dharma Devi and Sarita.

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27. Accordingly, this criminal appeal is partly allowed with the aforesaid modification that the conviction and sentence passed by the trial court is kept as such but the appellants accused Banshu alias Banshraj, Mahanth and Nanku are released on furnishing a personal bond of Rs.20,000/- (Rupees twenty thousand) and two sureties each in the like amount on probation for a period of one year in the supervision of the court with the condition that they shall maintain good behaviour and peace and abstain from intoxicating drink during the period of probation. Each appellant accused shall deposit Rs. 1500/- as compensation within two months from the date of order. The aforesaid amount of compensation be paid to each injured. In case, the aforesaid amount is not paid the trial court shall take coercive measures for its realization.

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28. Let a certified copy of this order along with record be sent to the court concerned for compliance.

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Order Date :- 2.11.2022 Pratima

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Digitally signed by :- PRATIMA AGRAHARI High Court of Judicature at Allahabad

Banshu @ Bansraj v. State of U.P.

Case brief

What is this about?

What did the court decide?

Banshu @ Bansraj v. State of U.P.

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