Santosh Kumar Vs State of U.P.

Heard Ms. Rajni Dubey, learned counsel holding brief of Sri Anshu Chaudhary, learned counsel for appellant and Sri Rahul Asthana, learned A.G.A. of the State.

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This Criminal Appeal has been preferred against the judgment and order dated 30.10.1985 passed by learned Additional Sessions judge (II), Etawah, in Session Trial No.36 of 1985, convicting and sentencing the appellant to undergo two years rigorous imprisonment under Section 324 I.P.C.

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In brief, on April 6, 1984, at 12:00 P.M., PW1- Kishan Bihari went to the well of the accused Santosh Kumar in Village Jaswantpur, Thana Ajitmal, district Etawah, to take bath. The well is located near the house of the accused. When the accused Santosh called him and he did not go, the former pulled out a country made pistol ( Tamancha ) from his bag and fired at Kishan Bihari. At the time of the incident Rambabu and Chakki were also present. On the day of the incident, the victim's father was not at home, and due to being alone and afraid, the victim did not go to file a report that day. The following day, he wrote a written complaint ( Ext. ka-1) and based on it, FIR Ext. ka-6 was recorded. The necessary entry was made in G.D. ( Ext. ka-7 ). Kishan Bihari's injuries were dressed in Ajitmal and he was sent to Etawah for a medical examination by Dr. H.N. Singh who prepared the report as Ext. ka-2. Dr. H.N Singh was of the opinion that the injuries were

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caused by firearm. The doctor gave his opinion after reviewing the X-ray plate (Ext. ka-3) stating that metallic shadows of pellets were found in the left hand.

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S.I. Rajendranath Dubey ( PW2) was the Investigating Officer of the case who recorded the statements of the witnesses and supported the prosecution version .He inspected the site and prepared site map as ( Ext. ka-4) and after the completion of the investigation submitted charge sheet (Ext. ka-5 ) against the accused.

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After closing the prosecution evidence, the statement of the accused appellant was recorded under Section 313 Cr.P.C. wherein accused denied the charges and stated that he has been falsely implicated due to village factionalism and enmity.

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After hearing learned counsel for both the parties, learned trial court after appreciating the evidences both oral as well as documentary, found the appellants guilty of offence as described in paragraph no.2 of this judgement.

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Feeling aggrieved with the impugned judgment and order of conviction, appellants have preferred the present appeal.

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At the time of hearing the argument of learned counsel for appellants who has fairly stated that the conviction on merits is not being challenged and the arguments are confined to the question of sentence seeking benefit of Section 4 of Probation of Offenders Act, 1958.

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Learned A.G.A. for the State supports the judgment of conviction but submits that the present appellant have no criminal antecedents and the incident is quite old.

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After considering the arguments and after perusal of the material available on record, this Court finds that except the merits of the case, so far as the prayer of learned counsel for the appellants for providing benefits of

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Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law pronounced in this regard. Section 4 of the Probation of Offenders Act, 1958, is extracted hereunder :-

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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:

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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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A similar provision finds place in the Code of Criminal Procedure, there, Section 360 provides :-

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Section 360- Order to release on probation of good conduct or after admonition :-

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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

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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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Upon considering the record of the case, the evidences available on record, findings of the trial Court, I have satisfied that the conviction recorded by trial court is based on cogent and reliable evidences and does not call for interference, therefore, the conviction of the appellant is affirmed.

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However, on the issue of sentence, it is evident that the appellant is first time offender. The occurrence is of the year 1984. The appellant has faced ordeal of trial and an appeal for a long period. The appellant is old and ailing person, having no criminal history. No adverse material have been produced regarding his conduct. In these circumstances, this Court finds appropriate to invoke the provisions of Section 4 of Probation of Offenders Act, 1958, instead of sending the appellant to imprisonment.

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In the light of the above, as far as it relates with the conviction of the appellant is maintained but the sentence is modified. Instead of sending the appellant to jail, he is given benefit of Section 4 of The Probation of Offenders Act, 1958 and therefore is released on probation and is directed to file two sureties each to the tune of Rs.10,000/- each along with personal bonds before District Probation Officer concerned and also an undertaking to the effect that he shall maintain peace and good behavior during the period of one year from today. The said bonds are to be filed by the appellant within a period of three months from the date of receipt of certified copy of this judgment.

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