Dhameshwar and Another Vs State of U.P.

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Neutral Citation No. - 2025:AHC-LKO:48495 Reserved/AFR

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Court No. - 10

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Case :- CRIMINAL APPEAL No. - 216 of 2013

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Appellant :- Dharmeshwar And Another Respondent :- State of U.P. Counsel for Appellant :- Pradeep Kumar Tripathi Counsel for Respondent :- Govt. Advocate,Arun Saxena Hon'ble Rajnish Kumar,J.

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Heard, Sri Pradeep Kumar Tripathi,learned counsel for the appellants, learned AGA and Sri Dharmendra Kumar,Advocate holding brief of Sri Arun Saxena, learned counsel for the private respondent.

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The instant Criminal Appeal under Section 374(2) of Criminal Procedure Code (hereinafter referred as Cr.P.C.) has been filed against the judgment and order dated 12.02.2013 passed in Session Trial No.561/2009; State of U.P. versus Dharmeshwar and others by the Additional District and Session Judge (Ex-cader) Court No.2, Sitapur arising out of Case Crime No.159/2006, under Section 307 of Indian Penal Code (hereinafter referred as I.P.C.), Police Station Misrikh, District Sitapur, by means of which the appellants Dharmeshwar and Babu Ram have been convicted under Section 307 I.P.C. and sentenced to rigourous imprisonment of four years with fine of Rs.2000/- each and in default of payment of fine, further two months additional rigourous imprisonment. It has further been provided that out of the fine deposited by the appellants, Rs.1500/shall be paid to the injured Ved Prakash as compensation.

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Learned counsel for the appellants submitted that the appellants are the real brothers and have been falsely implicated by their nephew due

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to land dispute. They have been convicted under Section 307 I.P.C. and sentenced rigorous imprisonment for four years with a fine of Rs.2000/- each, which has been deposited by them. The appellants have no criminal history either before passing the impugned order of conviction or thereafter and they are law abiding persons of society. The appellants and the complainant; injured are close relatives and developed harmonious relations during pendency of the instant criminal appeal, as such, no fruitful purpose would be served by sending the appellants to jail to serve the remaining sentence. The appellants do not want to press the instant criminal appeal on merits and restrict their prayer for grant of benefit of First Offender, which has wrongly and illegally been denied by the trial court without assigning any special reason. The benefit of first offender cannot be denied without recording any special reason. It has further been submitted that the appellants undertake to follow all the terms and conditions as may be imposed by this Court while passing the order in the instant criminal appeal. He further submitted that even if the prosecution case is taken to be correct, the evidence under Section 307 I.P.C. is not made out and the offence under Section 324 is only made out because only one gun shot was made by the accuseds on leg and it is also not proved as to who made the shot out of the two appellants. Thus the conviction may be converted into Section 324 and the appellants may be granted benefit of First Offender.

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Learned AGA opposed the submissions of learned counsel for the appellants and submitted that the appellants have rightly been convicted in accordance with law under Section 307 I.P.C. and sentenced accordingly and the appeal is liable to be dismissed.

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Learned counsel for the complainant does not dispute that the appellants are the real brothers and the complainant is the nephew of the appellants and they have developed harmonious relations during the pendency of the criminal appeal and no fruitful purpose would be

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served by sending the appellants to jail and he has also no objection in case the benefit of first offender is granted to the appellants.

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I have considered the submissions of learned counsel for the parties and perused the records.

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The prosecution story, in short, is that on 19.04.2006 at about 7:00 in the evening, the uncle Dharmeshwar and Babu Ram sons of Late Shyam Lal were trying to keep the door on his wall, which was objected by his sister and mother on account of which there was quarrel between them, The complainant received information of the same at Gunjan Kiln, where he was working. Upon hearing the said information, while he was going to home and as soon as he reached near his agricultural field and village, Dharmeshwar and Baburam were present on the way and they fired at him with the intention to kill. The shot of the fire hit in his right leg. The incident is of about 8:30 p.m. Upon hearing the sound of gun shot, Lakshman son of Late Sri Rudai of his village and Rakesh son of Hardwari Lal of village Mahmoodpur came and saved him. On the basis of the said written complaint, the F.I.R. vide Case Crime No. 159/06 under Section 307 I.P.C. was registered at about 23:05 on 19.04.2006. During investigation, the I.O. inspected the site and prepared the site plan and recorded the statements of the complainant and F.I.R. writer. The X- ray of the injured Ved Prakash was got done and the report was mentioned in the CD and thereafter after recording the statement of the concerned persons, charge sheet under Section 307 I.P.C. was filed against the appellants Dharmeshwar and Babu Ram, upon which the cognizance was taken by the Magistrate and finding it to be triable by the Sessions court, committed the case to the Session. The Session court framed charge against the appellants under Section 307 I.P.C., which was denied by the appellants and they prayed for trial.

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During trial Prahlad, Ved Prakash and Ram Murti were examined as P.W.1, 2 and 3. On the basis of their evidence, the accused Anil was

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summoned under Section 319 Cr.P.C. vide order dated 15.03.2010 for trial in NCR No.60/2006 and charge was framed separately against him under Sections 323, 504, 506 I.P.C on 21.04.2010. The accused Anil also denied the charge and prayed for trial. Therefore Prahlad and Ram Murti were again summoned for re-examination. Thereafter the witnesses Lakshman, Anita Devi, Dr. R.A.L. Gupta, S.S.I, Dravid Kumar Singh, Head Constable Babu Ram and Dr. Rameshwar Prasad appeared for oral evidence. In addition to the oral evidence adduced by the prosecution witnesses, the documentary evidence i.e. the written report, Chik F.I.R., Site plan, X-Ray Plate, X-Ray report, Medical Examination Report etc. were also placed on record.

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After conclusion of the evidence of prosecution, statement under Section 313 Cr.P.C. of the accused-appellants was recorded, in which they stated that a false report has been lodged and all the evidences are wrong and they have been falsely implicated on account of enmity. It was also stated that the wall is of the accuseds and Ved Prakash and his family members wanted to forcibly make possession on the same on account of the said enmity. It was also stated that the medical of the injured was got done on account of political pressure and the doctor's report is false. It has also been stated that on account of enmity of wall, complaint is also pending in the court of magistrate against the father of the complainant. Thus the prosecution has failed to prove it's case. Thereafter after hearing and considering the evidence and material on record and hearing the parties, the trial court recorded a finding that the evidence of all the witnesses is believable and they supported each other and accordingly found the prosecution case proved and convicted the appellants under Section 307 I.P.C. However, on account of no evidence against the accused Anil, he had been acquitted of the charges under Section 323, 504 and 506 I.P.C..

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P.W.1 Prahlad, in his evidence stated that he, Dharmeshwar and Babu Ram are real brothers and Anil is son of Dharmeshwar..

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Dharmeswar, Babu Ram and Anil were keeping the door and waste pipe after breaking his constructed wall, which was objected by his wife Anita Devi and daughter Ram Murti. On denying, they had beaten them with kick and fists and at that time he was at the kiln and on information he came to home and went to the police station Mishrikh with her daughter Ram Murti, where he lodged report . While he was in the police station, his son Ved Prakash was brought by tempo, who informed that while he was going to home from kiln, Babu Ram and Dharmeshwar fired by gun on him with the intention to kill at about 8:30 in the evening. The fire had hit in his right leg. Thereafter his son got report of the said incident lodged. In the cross examination, he admitted that the dispute in regard to the falling of land amongst the brothers is pending in the court.

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Ved Prakash, the injured, appeared as P.W.2. He stated that on 19.04.2006, he was in the kiln for labour work, where he got information that Dharmeshwar and Babu Ram are trying to keep the door and waste pipe on his wall and on objection by his sister Ram Murti and mother Anita Devi, Dharmeshwar, Babu Ram and Anil, entering into the house, have beaten them. Upon hearing the information, his father went with the motor cycle to home. Thereafter, while he was going back from the vehicle after completion of his work and reached in between the village and the kiln at about 8:30 Babu Ram and Dharmeshwar fired on him with the intention to kill. Gun shot hit at his right leg. On hearing the noise, Lakshman and Ramesh came to save him and sent him to home. The report of the incident was got written by Awadhesh Kumar. Thereafter, he went to the Police Station Mishrikh, on which the F.I.R. was lodged. He proved the F.I.R. He also stated that his X-Ray was also got done. In cross-examination, he stated that the gun shot was made from a distance of about 10-15 steps. He could not see as to whether the fire arm was small or big, where the gun shot was made, the pellets

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hit.The said pellets were shown by him to the Inspector. The gun shot was made from the front side and he fell turning back and got unconscious. After 5-6 minutes, he woke and saw that Lakshman and Rakesh were standing and the accused Dharmeshwar and Babu Ram were also standing.

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Lakshman has been examined as P.W.4. He stated that the incident is of about four years back of about 8:30 in the evening. At that time, he was going to his house by road. When he reached between the kiln and village, he heard the noise of gun shot. Upon hearing the noise of gun shot, he went towards the noise and found Ved Prakash lying in the agricultural field. He saw that two persons were running and he recognised them with their voice as Dharmeshwar and Babu Ram. The gun shot was hit in the leg of Ved Prakash. He could not see as to what was in their hand. Upon reaching, Ved Prakash was speaking and he told that Dharmeshwar and Babu Ram have fired by gun on him. He does not know the reason of gun shot. In cross- examination, he stated that he had seen the accuseds running but could not recognise them. He was having a grocery shop near the kiln and it was at the time of incident also. He further stated that he supported Ved Prakash and took him to his house. Thereafter it started raining. Thereafter after eating food, he went back to the shop. He further stated that the things told today were not told by him to the Inspector. He had told him only what was asked by him.

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Dr. R.A.L. Gupta appeared as P.W.6. He proved the X-ray of right leg of Ved Prakash, which was done on 20.04.2006, on being referred by the Medical Officer, Mishrikh. He further stated that in X-Ray small and round radio opic images were present, which may have come by the pellets of gun shot.

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Dr. Rameshwar Prasad appeared as P.W.9. He stated that Ex. Ka-7 report was prepared by Dr. Satendra Singh. He was posted with him. He had seen him writing and reading. He had done the medical

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examination of Ved Prakash. He had died. As per Ex. Ka-7, which is medical report of Ved Prakash, there are many wounds of 0.2 mm to 0.5 mm on the right leg of Ved Prakash caused by gun shot arm, which were fresh.

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Smt. Ram Murti daughter of P.W.1 and sister of P.W.2 has been got examined as P.W.3. She stated about the incident of forcibly keeping the door and waste pipe on her wall by Dharmeshwar, Babu Ram and Anil at about 7:30 in the evening about 3 and 1/2 years back and on being objected by her and his mother, they were beaten by them by lathi and danda. The information of the same was given to her father Prahlad at Gunjan kiln. They had threatened her and her mother of dire consequences. His father came from the kiln and went to the police station alongwith them and lodged the report. On the same day, at about 8:30 p.m., Dharmeshwar and Babu Ram fired by gun on Ved Prakash with the intention to kill. The incident was told by her brother in Mishrikh, where she had seen her brother in serious condition. Similar statement has been given by Anita Devi wife of P.W.1, who appeared as P.W.5. She also stated the same incident as told by her daughter. Head Constable Babu Ram has proved the F.I.R.

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S.S.I. Dravid Kumar Singh appeared as P.W.6, who had conducted the investigation and filed the charge sheet. He proved the injury report, X Ray report, site plan and charge sheet etc.

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Admittedly, a single gun shot was made by two persons i.e. appellants Dharmeshwar and Babu Ram and it has not been disclosed by any of the witnesses as to who made the gun shot. It is also not in dispute that the gun shot was made in the right leg of the injured Ved Prakash on account of enmity for land between the father of the injured and his brothers, in regard to which an incident had occurred at the residence of the injured at about 7:30 in the evening, on account of keeping the door and waste pipe on the constructed wall, which appears to be between the houses of the father of the injured and his

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brothers and thereafter while his father went to lodge the F.I.R., the alleged incident had happened.

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P.W.2 Ved Prakash, the injured has stated that the gun shot was made from a distance of about 10-15 steps and he could not see as to whether the fire arm was big or small. P.W.4 Lakshman, who reached on the spot upon hearing the noise of gun shot, has stated that he saw two persons running but in the cross-examination he stated that though he had seen the accused running but he could not recognise them. He also stated that the things told today were not told by him to the Inspector. Thus there is contradiction in the evidence of P.W.2 and P.W.4. P.W.2 stated that he fell unconscious on receiving the gun shot and when he woke up after 5-6 minutes, he saw Lakshman and Rakesh alongwith Dharmeshwar and Babu Ram standing, whereas P.W. 4 has stated that when he reached on the spot upon hearing the noise of gun shot, he found that the injured Ved Prakash was speaking and he told that the Dharmeshwar and Babu Ram had fired by gun on him but he does not know the reason of gun shot. Thus the presence of P.W.4 on spot itself becomes doubtful. It is also for the reason that on the one hand he states that while he was going back from his shop to his home, he on hearing the noise of firing went on the spot and found Ved Prakash lying there and recognised Babu Ram and Dharmeshwar from their voice, thereafter he stated that they were running from there and he could not recognise them and on the other hand he stated that after leaving the injured Ved Prakash at home, it started raining and thereafter after taking food he went back to his shop, which does not seem to be correct because when he was going back to his house at about 8:30 in the evening from his shop, question of his going back to shop at that time, which may be after 9:00 or 9:30 in the night does not seem correct.

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Upon considering the evidence of P.W.2, firstly, it is apparent that only one gun shot was made, that too in the leg and thereafter the

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appellants stopped and were present on the spot at the time when Ved Prakash woke up from unconsciousness. Therefore it cannot be said that the gun shot was made with the intention to kill by the appellants because if it would have been with intention to kill, the single gun shot would not have been made in the place where nobody else was present and that too in the leg and they would not have stayed thereafter. Neither the medical reports nor the evidence of doctors also even suggest that the injury was fatal in any manner. Thus, the finding recorded by the trial court that the gun shot was made by the appellants with the intention to kill Ved Prakash, that too without recording any finding as to who made the gun shot, is misconceived and not tenable. It is also noticed that conviction has been made under Section 307 I.P.C., whereas the charge was framed under Section 307/34 I.P.C. against two persons and two persons could not have been convicted under Section 307 I.P.C. for attempt to murder on account of one gun shot without any evidence and finding as to who and how made the gun shot.

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Section 307 I.P.C. provides that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is here-in-before mentioned. Section 307 I.P.C. is extracted hereinbelow:-

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" 307 . Attempt to murder- "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

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In view of above, for conviction under Section 307 I.P.C., proof of intention and knowledge that by such act and in such circumstances,

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death would be caused is required, but in the present case, it is missing and as discussed above, this Court is of the view that the single gun shot on the leg cannot be said to had been made with the intention or knowledge of causing death. Otherwise two persons would not have made single gun shot and that too in the leg. They would not had stayed also thereafter. Thus, this Court is of the view that in the facts and circumstances of the case and on the basis of evidence adduced in this case, the offence of Section 307 I.P.C. is not made out. However, provisions of Section 324 I.P.C. are attracted, which provides that except in the case provided for by section 334, voluntarily causing hurt by means of any instrument for shooting, stabbing or cutting etc. which is likely to cause death shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 324 I.P.C. is extracted here-in-below:-

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"Section 324- Voluntarily causing hurt by dangerous weapons or means:- Whoever, except in the case provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both"

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A Co-ordinate Bench of this Court, in the case of Devi Singh & Another versus State of U.P.; Criminal Appeal No.220 of 1995 , by means of the judgment and order dated 04.05.2016 has held that the Court has to see as to whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An Attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof has been laid down by the Hon'ble Apex Court in State of Maharashtra versus Balram Balma Patil, AIR 1983 SC 305. The relevant paragraphs 21 to 28 are extracted here-in-below:-

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"21 . To justify a conviction under Section 307 IPC, it is not essential that bodily injuries capable of causing death should have been inflicted. Although the nature of injuries actually caused may often give considerable assistance. Coming to the finding as to the intention of accused, such intention may also be deduced from other circumstances and may even in some cases be ascertained without any reference at all to the actual wounds. This section makes a distinction between an act of accused and its result, if any. Such an act may not be attended by any result. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this Section. An Attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof has been laid down by the Hon'ble Apex Court in State of Maharashtra versus Balram Balma Patil, AIR 1983 SC 305.

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22. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not all be covered under Section 307 I.P.C. It would all depend upon the facts of a given case. Intention has to be seen in every case.

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23. It also emerges that the sole injury, even if accepted to be attributed to the appellant, was simple in nature and there is no iota of evidence to show that this injury was sufficient in the ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapon like country-made pistol.

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24. In the facts and circumstances of the case, it is difficult to accept that knowledge or intention can be attributed to the appellants about the likely death of the victim by causing the injuries, because they have not repeated the attack particularly when there was no possible protest either from the injured or the eye witnesses. If the intention would have been to kill the injured, accused Devi Singh could have repeated the injuries and could have easily killed the injured.

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25. In AIR 1982 SC 2013, Kundan Singh vs. State of Punjab, the Hon'ble Apex Court has observed as under:-

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"We are of the view that having regard to the facts and circumstances of the present case and particularly in view of the fact that P.W. 6 and P.W. 7 were in the courtyard of their house when the appellant fired gun shots and he could not, therefore, have intended to injure them, the conviction of the appellant under Section 307, I.P.C. was not justified. We think that the conviction of the appellant could be maintained only under Section 324 of the I.P.C. since P.W. 6 and P.W. 7 received simple injuries. We accordingly allow the appeal and alter the conviction of the appellant to one under Section 324 of the I.P.C. for causing simple injuries to P.W. 6 and P.W. 7 and since the appellant has already suffered imprisonment for about 16 months, we direct that the sentence imposed on the appellant be reduced to that already undergone by him and that he may be set at liberty forthwith."

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26. I would also like to place the law laid down by the Apex Court in AIR 1996 SC 3236, Merambhai Punjabhai Khachar and others vs. State of Gujarat, wherein an attempt to commit murder by fire arm and a pellet hit the victim, however, the Apex Court held that Section 307 I.P.C. cannot be held to have been satisfied and the conviction was altered to Section 324 I.P.C.

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27. In the case of Ramesh vs. State of U.P., AIR 1992 SC 664, wherein the injury was found on the back of the injured. He was tried along with two other was convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for four years, while the two others were acquitted, was partly allowed by the Apex Court. His conviction was altered into Section 324 I.P.C. and sentence was reduced to the period already undergone with fine of Rs. 3000/-, which was to be paid to the complainant as compensation.

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28. Thus, there was only one lacerated wound on the body of injured caused by fire-arm which was on the back but there was no repeat of the injury nor there was any intervening circumstance to do away with the life of injured. There was no repeat shot. Thus, I am of the view that conviction of the appellants under Sections 307 and 307 read with Section 34 IPC cannot be sustained and the appellants are liable to be convicted for the offence punishable under Section 324 IPC."

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The Hon'ble Supreme Court in the case of Neelam Bahal & Another versus State of Uttarakhand; (2010) 2 SCC 229 has held that there is no categorical statement in the medical certificate issued by doctor that the injuries were in fact dangerous to life and we are unable to fathom as to whether this was a deliberate omission or an oversight but whatsoever it may be, the benefit must accrue to the accused and converted the conviction from under Section 307/34 to Section 326 I.P.C. It is true that merely because the injuries are simple in nature, it cannot be said that the offence made out would not at all be covered under Section 307 I.P.C. It would all depend upon the facts of a given case. Intention has to be seen in every case. It also emerges that the sole injury, even if accepted to be attributed to the appellant, was simple in nature and there is no iota of evidence to show that this injury was sufficient in the ordinary course of nature to cause death. Resultantly, the evidence can be said to indicate involvement of the appellant in an offence punishable for simple hurt with a deadly weapon like country-made pistol.

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In view of above, the conviction under Section 307 I.P.C. is not sustainable and it is liable to be converted under Section 324 I.P.C. Accordingly, the conviction is converted under Section 324 I.P.C., in which the maximum sentence of three years or with fine or with both can be awarded. As discussed above, this Court is of the view that it is not the case of award of the maximum sentence of three years. However learned counsel for the appellant has submitted that the appellants are the first offender and they are entitled for the benefit of the First Offender, which has not been considered and no special reasons have been recorded for declining the same by the trial court. It is settled law that Sections 3 and 4 of the Probation of Offenders Act,1958 which is applicable in the State of Uttar Pradesh as held by Hon'ble Supreme Court in the case of Mohd.Hashim versus State of U.P.; (2017) 2 SCC 1998 , which provides power to court to release

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certain offenders after admonition or on probation of good conduct. Sections 3 and 4 of the Probation of Offenders Act are extracted herein-below:-

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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.

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4. Power 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 subsection (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. 1. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019). 3 (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 subsection (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.

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Section 361 of the Code of Criminal Procedure specifically provides that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958 but has not done so, it shall record in its judgment the special reasons for not having done so.The Act

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does not create any distinction between the character of the offender and the provisions of Section 4 of the Probation of Offenders act. The provision can be applicable to any case where the convicted is found guilty for having committed an offence not punishable with death or imprisonment for life. Incidentally certain exceptions have been indicated by the Hon'ble Supreme Court in the case of Smt. Devki Versus State of Harayana reported in 1979, (3) SCC 760, where the Hon'ble Supreme Court has held that benefit of Section 4 of 1958 Act could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Similarly in the case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das Soni the Hon'ble Supreme Court declined to extend the benefit of the 1958 Act to an accused found guilty of gold smuggling.

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The Hon'ble Supreme Court, in the case of Dalbir Singh versus State of Haryana (2000) 5 SCC 82 , has held that the Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". Further, it has been held that Section 4 casts a duty on the court to take into account the circumstances of the case including the nature of the offence. The relevant paragraphs 8, 9 and 10 of the said judgment are reproduced hereinafter:

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"8 .Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence".

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9. Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word "expedient" had been thoughtfully employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". In Block's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri & Ors.,

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AIR (1974) SC 2233 a three Judge Bench of this Court has considered the word "expedient''. Learned Judges have observed in paragraph 21 thus :

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10 .Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view', 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conducive to special advantage rather than to what is universally right' (see Webster's New International Dictionary)."

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It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the P.O. Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence.........". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. Courts must bear in mind that when any plea is made based on Section 4 of the P.O. Act for application to a convicted person under Section 304-A of IPC, that road accidents have proliferated to alarming extent and the toll is galloping up day-by-day in India, and that no solution is in sight not suggested by any quarters to bring them down. When this Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country" the saturation of accidents toll was not even half of what it is today. So V.R. Krishna Iyer, J., has suggested in the said decision thus :

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"Rashness and negligence are relative concepts, not absolute ab-stractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces."

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Adverting to the facts of the present case, the incident had occurred on 19.04.2006 i.e. about 19 years back on account of dispute regarding land between close family members and the appellants have no criminal antecedents either before the incident in question or subsequent thereto and the appellants and the informant have settled their dispute and maintained their good relations, which is not disputed by learned counsel for the complainant. The affidavit in this regard has also been filed. It is the duty of the trial court to consider for grant of the benefit of the first offender and if the same is denied, special reasons are required to be recorded but in the instant case, the trial court has failed not only to consider the case and material on record appropriately but it has also failed to consider the claim of first offender and record any special reason for declining the benefit of the first offender.

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16

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In view of above and considering the overall facts and circumstances of the case, this Court is of the view that no purpose would be served by sending the appellants to jail to serve the sentence and dispute was purely personal between the close family members, therefore, the public at large is also not going to be affected in any manner, therefore, the appellants are entitled for benefit of the first offender and the appeal is liable to be allowed partly and impugned judgment and order is liable to be modified accordingly.

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The appeal is partly allowed . The conviction under Section 307 I.P.C. is hereby converted into conviction under Section 324 I.P.C. and sentence of 1 year is awarded to both the appellants. However, they are released on probation giving benefit of First Offender and both the appellants namely Dharmeshwar and Babu Ram are directed to file two sureties each to the tune of Rs 20,000/- along with personal bonds before District Probation Officer concerned and also an undertaking to the effect that they shall maintain peace and good behavior during the period of one year from today. The said bonds are to be filed by the appellants within a period of two months from the date of this judgment.

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In case of breach of any of the above conditions, the appellants shall be taken into custody and shall have to undergo the aforesaid sentence awarded to them.

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A certified copy of this order alongwith the trial court record shall be sent to the court concerned for compliance forthwith and in any case within 10 days from today.

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(Rajnish Kumar,J.) Order Date :19.08.2025/Akanksha Sri/-

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Digitally signed by :- AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Dhameshwar and Another v. State of U.P.

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