Rajasthan HC allowed the appeal of Gokal Ram to release him on probation under the Probation of Offenders Act. The conviction of the deceased appellant Ghewar Ram was maintained, and his appeal dismissed.
Release of Gokal Ram on probation under Section 4 Probation of Offenders Act, 1958 with a personal bond of Rs. 3,00,000 and two sureties for two years.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Appeal No. 110/1990
Lrs Of Ghewar Ram
----Appellant
Versus
| State | ----Respondent |
|---|---|
| S.B | Connected With . Criminal Appeal No. 134/1990 |
| Gokal Ram | ----Appellant Versus |
| State | ----Respondent |
| For Appellant(s) | : Mr. Jagmal Singh Choudhary, Sr. Adv. Assisted by Mr. Pradeep Choudhary. Mr. Deepak Bishnoi |
| For Respondent(s) | : Mr. Mahipal Bishnoi,P.P. |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 27/07/2022 Pronounced on 01/08/2022
preferred praying for the following reliefs:-
In S.B. Criminal Appeal No. 110 of 1990:-
“It is, therefore, prayed that this Hon’ble court will be pleased to send for the record of the court below, peruse the same and after perusal, quash the conviction and sentences passed against the appellant, pass any other Orders that this Hon’ble court deems fit and proper.”
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In S.B. Criminal Appeal No. 134/1990:-
“ It is, therefore, most respectfully prayed that the appeal of the appellant may kindly be allowed, the conviction and sentence passed by the learned Sessions Judge against the appellant be set aside and he may kindly be acquitted of the charges levelled against him.”
3.1 Charges for the offences under Section 302 and 307 I.P.C. along with 3/27 Arms Act, 1959 were levelled against the
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accused appellants, while those for the offences under Sections 302/34, 307/34 and 323 I.P.C. were levelled against the other two aforementioned persons.
3.2 And that, subsequently, Poona Ram and Khangar Ram were acquitted from all the charges levelled against them therein, and while Ghewar Ram and Gokal Ram were acquitted for the offences under Sections 302 and 307 I.P.C., Ghewar Ram was convicted for the offence under Section 304 II I.P.C and Section 27 Arms Act and Gokal Ram was convicted for the offence under Section 324 I.P.C. and Section 27 of the Arms Act, 1959.
3.3 Ghewar Ram was sentenced to 6 years R.I. along with a fine of Rs. 50/- in default of payment of which he was to undergo further 1 month R.I. and 2 years R.I. along with a fine of Rs. 50/- in default of payment of which he was to further undergo 1 month R.I., respectively, for the offences as above mentioned. While Gokal Ram was sentened to 1 year R.I. and 2 years R.I. along with a fine of Rs.50/- respectively for the offences as above mentioned.
4.1 It is further submitted that learned Court below erred in passing the order impugned, on the basis of the evidences placed on the record, as the testimonies of the prosecution
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witnesses are rife with contradictions. Furthermore, that the village was divided into two factions, and given that the prosecution witnesses belonged to the other faction, it makes their testimonies all the more unreliable.
4.2 It is also submitted that the accused also sustained injuries as the result of the scuffle that broke out on the day of the incident in question, and that the same was not fully considered by the learned Court below before arriving at the conviction of the accused appellants herein. And that, the same is evident from the fact that the learned Court below constituted a Board to examine the injuries sustained by the accused, which stated that the accused also suffered injuries as a result of firearms being shot at them, in contradiction of the medical testimony given by P.W. 1 Dr Dinesh Purohit who stated that the accused only had injuries from blunt weapons.
4.3 It is further submitted that the deceased was the aggressor, as also averred in the counter F.I.R. filed by the first appellant, and that the appellant acted in his right of self defence.
4.4 It is also submitted that the bullet which resulted in the death of the deceased, Manohar Singh is not attributable to the first appellant, given that both parties, inclusive of multiple persons opened fire at each other, and therefore, singling out the first appellant and convicting him for the same, in the light of cogent evidence for the same, is unsustainable in the eye of law. And that, neither are the ingredients for a conviction under Section 304 II I.P.C. made out against the accused first appellant, as he did have the intention nor the knowledge to
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cause the death of Manohar Singh, as is the case of the prosecution.
4.5 It is also submitted that the learned Court below rightly appreciated the evidence and acquitted the other accused persons, as abovementioned and although the accusedappellants were on the same pedestal as them, were incorrectly convicted for the offences as abovementioned, and that the order impugned therefore deserves to be quashed to the extent of their conviction.
4.6 It is also submitted that the first appellant, Ghewar Ram, was granted bail by this Hon’ble Court on 02.04.1990 in S.B. Criminal Misc. Bail Application No. 119/1990 (in S.B. Criminal Appeal No. 110/1990). And that, he passed away during the pendency of the appeal, and that on 23.02.2017 this Court was informed of his demise, and his legal representatives were taken on record, vide order of this Hon’ble Court on 07.03.2017 and therefore, the appeal survives.
4.7 It is also submitted that the first appellant has suffered as a consequence of the errant conviction against him vide the impugned order, and was dismissed from service, on 13.06.1995.
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5.1 It is further submitted that it was deposed by P.W. 2 Muna Ram and P.W. 3 Harlal that the second appellant was standing at the chabutra of the temple during the incident in question, but neither of them made any such statement before the police, evident from Ex.D/3 and Ex.D/4, respectively.
5.2 It is also submitted that in similar manner, the testimonies of witnesses P.W. 3 Khangar Ram and P.W. 13 Bangda Ram should be thrown out and disbelieved owing to the fact that the averments made by them therein were not made by them in the statements made to the police, at Ex. D/5 and Ex. D/7, and are therefore concocted and false.
5.3 It is further submitted that the testimonies of the witnesses, as above mentioned, are contradictory as to the type of the weapon that the second appellant was allegedly armed with, and therefore the offence against the second appellant for the offences under Section 324 I.P.C. and Section 27 Arms Act, 1959 is not proven beyond all reasonable doubt.
5.4 It is also submitted that the testimony of P.W. 19 Sajjan Sinh reveals that no bullet shells were recovered from the chabutra , further poking holes in the version of the prosecution as to the involvement of the second appellant in the incident in question.
5.5 It is further submitted that the scuffle that broke out between the parties, was also owing to an old rivalry between the two factions in the village, and therefore the testimony of prosecution witnesses, already rife with contradictions, should be disbelieved on the said ground.
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5.6 It is also submitted that the second appellant, Gokal Ram, was granted bail by this Hon’ble Court on 25.04.1990 in S.B. Criminal Misc. Bail Application No. 141/1990 (in S.B. Criminal Appeal No. 134/1990).
5.7 Learned Senior Counsel placed reliance on the judgment of this Hon’ble Court in S.B. Criminal Revision Petition No. 1084/2015 titled Shivchand and Ors. Vs. State of Rajasthan and Anr.
5.8 Learned Senior Counsel for the second appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’ ).
“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.
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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.
(3)…
(4)…
(5)... ”
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12.1 In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC , the Hon’ble Apex Court observed as under:-
“ The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society . In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society.”
12.2 In Brij Lal Vs. State of Rajasthan RLW 2002 Raj 945 , a Coordinate Bench of this Court observed as under:-
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“ Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... ”
12.3 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 , while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , the Hon’ble Apex Court observed as under:-
“… The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient...”
12.4 In Lakhvir Singh and Ors. Vs. The State of Punjab and
Ors. (2021) 2 SCC 763 wherein the Hon’ble Apex Court of India, with regard to the application of the Probation of Offenders Act, 1958 vis-a-vis those Acts wherein a minimum sentence of imprisonment has been prescribed by the legislature, observed as under:-
“Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where
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a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context.”
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Lal (supra) deems it appropriate to extend the benefit of the Act to the accused-appellant, Gokal Ram, and therefore S.B. Criminal
Appeal No. 134/1990 is partly allowed . While maintaining the conviction of the accused-appellant for the offences under Section 324 IPC and Section 27 Arms Act, 1959, as recorded by the learned Court below in the impugned judgment, this Court interferes only with the sentence part of the said judgment, with respect to the said appellant, Gokal Ram, in S.B. Criminal Appeal No. 134/1990, and directs that the appellant, Gokal Ram shall be released on probation, under Section 4 of the Act , upon his furnishing a personal bond in the sum of Rs.3,00,000/and two sureties in the sum of Rs.1,00,000/- each to the satisfaction of the learned trial court with a further undertaking that he shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellant is on bail. He need not surrender. His bail bonds stand discharged accordingly.
(DR.PUSHPENDRA SINGH BHATI), J.
Skant/-
2 issues framed by the court
Whether benefit under Section 4 of the Probation of Offenders Act, 1958 can be extended to a convicted appellant when the legislature has prescribed a minimum mandatory sentence for the offence.
Whether the conviction of the deceased appellant Ghewar Ram under Section 304 II IPC requires quashing.
Colour shows how this judgement treated each authority
Arvind Mohan Sinha Vs. Amulya Kumar BiswasRelied on¶68
Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC · Who else cites this
Brij Lal Vs. State of RajasthanExplained¶70
Brij Lal Vs. State of Rajasthan RLW 2002 Raj 945
Mohd. Hashim Vs. State of U.P. & Ors.Relied on¶74
Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 · Who else cites this
Dalbir Singh Vs. State of HaryanaApplied¶74
Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 · Who else cites this
Lakhvir Singh and Ors. Vs. The State of Punjab and Ors.Relied on¶76
Lakhvir Singh and Ors. Vs. The State of Punjab and Ors. (2021) 2 SCC 763 · Who else cites this
4 provisions across 3 enactments
Lrs Of Ghewar Ram
Gokal Ram
State
DR. PUSHPENDRA SINGH BHATI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
DR. PUSHPENDRA SINGH BHATI
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