Mahesh Prasad State of U.P v. …

Judgment

1. List of cases has been revised and the case is being taken up in the revised call for hearing.

2. Heard Shri Janardan Singh, learned counsel for the appellant and Shri Sushil Kumar Pandey, learned A.G.A for the State.

3. The present appeal under Section 374 (2) of the Criminal Procedure Code has been preferred against the judgment and order dated

24.12.2004 passed by Additional Session Judge, Fast Track Court No.5, District Sitapur in S.T. No. 233/2002: State Vs. Mahesh Prasad, Police Station Kotwali, District Sitapur, whereby the appellant was convicted 2 CRLA No. - 6 of 2005 and sentenced for two years rigorous imprisonment with fine of Rs. 2000/-under Section 324 I.P.C. , for six months rigorous imprisonment under Section 504 I.P.C. and for one year rigorous imprisonment with fine of Rs. 1000/- under Section 25 (1-B) Arms Act with default stipulations.

Brief facts of the case are that on 04.02.2002, the complainant, Shripal Gupta, was returning home on a bicycle along with his younger brother, Satrohanlal Gupta. The complainant was sitting on the rear carrier of the bicycle, while his younger brother, Satrohanlal Gupta, was riding it. When they reached Shahmahauli Pirpur crossing on Sitapur– Lakhimpur Road at about 3:00 p.m., Mahesh met them, caught hold of the bicycle handle, threw them down, and started abusing them. When Satrohanlal objected, Mahesh fired at him with a tamancha (country- made pistol) with the intent to kill. The shot hit Satrohanlal on the right side of his chest, causing him to fall to the ground. The complainant, in order to save himself, ran towards Pirkhur.

5. On this allegation, PW-4 Sripal Gupta gave a written report Exhibit-Ka-16 at Police Station Kotwali Sitapur and the case was registered under Sections 504/307 I.P.C. and 7 Criminal Law Amendment Act as Case Crime No. 194/2002.

6. The investigation was handed over to S.I. R. B. Singh, who visited the place of occurrence and prepared the site plan and even recorded the statements of the witnesses, conducted the medical examination and concluded the investigation and submitted charge-sheet under Sections 307/504 I.P.C and Section 7 Criminal Law Amendment Act before the Court of Chief Judicial Magistrate, Sitapur. 3 CRLA No. - 6 of 2005 On 7-2-2002, during the investigation, the investigating officer arrested the accused Mahesh Prasad at Sunderlal's shop in Shahamholi and on his pointing out recovered one Tamancha and one empty cartridge from a box in his house. Recovery report Exhibit-Ka-8 was prepared in this regard and on that basis case No. 206/2002 under Section 25 (1-B) of the Arms Act was registered. This case under Section 25(1-B) of the Arms Act was investigated by Sub-Inspector R.K. Ram, who recorded the statements of witnesses and prosecution. Sanction was obtained from the District Magistrate, Sitapur on 27-2-2002 to prosecute the accused under Section 25 (1-B) of the Arms Act thereafter a charge sheet under Section 25(1-B) of the Arms Act was filed against the accused Mahesh in the court. The Court of Chief Judicial Magistrate, Sitapur, wherein after furnishing the copies of relevant documents to the accused person, finding the case exclusively trible by the Session, committed to the court of session on 25.04.2002.

7. From the court of Session Judge, the case was transferred in the Court of Additional Session Judge, Fast Track Court No.5, Sitapur, wherein against the accused person charges under Sections 307/504 I.P.C, 7 Criminal Law Amendment Act and Section 25 (1-B) Arms Act were framed and which were explained to accused person. The accused- appellant denied the charges levelled against him and claimed to be tried.

8. In order to prove its case, prosecution examined five witnesses namely PW-1 Satrohan Lal, PW-2 Dr. P.P.Singh, PW-3 Constable 348 Shiv Naresh Singh, PW-4 (the complainant) Sripal Gupta, PW-5 S.I. Raj Bahadur Singh, PW-6 S.I. Ram Krishna Ram.

9. After completing the evidence by the prosecution, statement of accused/ appellant under Section 313 Cr.P.C. was recorded by the trial 4 CRLA No. - 6 of 2005 court explaining the entire evidence and attending incriminating circumstances, whereby the accused-appellant denied the prosecution story and evidence against him. He specifically stated that he has falsely been implicated in this case.

10. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, found the accused / appellant guilty and convicted the appellant- Mahesh Prasad for two years rigorous imprisonment with fine of Rs. 2000/-under Section 324 I.P.C., for six months rigorous imprisonment under Section 504 I.P.C. with default stipulations and for one year rigorous imprisonment with fine of Rs. 1000/- under Section 25 (1-B) and acquitted him for the offence under Section 7 Criminal Law Amendment Act.

11. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellant- Mahesh Prasad has preferred the present appeal before this Court.

12. Learned counsel for the appellant submitted that although he has preferred the appeal against the judgment of conviction and order of punishment, but at this stage, he only intends to press the appeal in respect of sentence only and he does not want to press the appeal on merit.

13. Learned counsel for the appellant submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) (herein after referred as the Act of 5 CRLA No. - 6 of 2005 1958) is also applicable in the State of Uttar Pradesh as held by Hon’ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

14. Learned counsel for the appellant submitted that the incident took place 23 years ago and there is no further criminal antecedent against the appellant and the present age of the appellant is about 65 years. The delay in trial deprives the right of the appellant of speedy trial and he may be given benefit of first offender and appellant may be extended the benefit of Act of 1958. He further submitted that appellant is first time offender and he is not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellants.

15. Learned A.G.A. on the other hand opposed the appeal and has submitted that there is no material irregularity or illegality committed by trial court and keeping in view the evidence on record, accused-appellant has been rightly convicted.

16. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused-appellant on certain stipulations as specified in Section 4 of the Act of 1958.

17. Before dealing with the contention of learned counsel for the appellant, it is useful to quote Sections 3 and 4 of the Probation of Offenders Act, 1958: “3. Power of court to release certain offenders after admonition.- "Where 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 6 CRLA No. - 6 of 2005 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.

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." Section 4 of the Act of 1958 is applicable where a person is found 18. guilty of committing an offence where punishment is neither life sentence nor death. The Court may release such an accused on probation of good conduct on his furnishing a bond as mentioned in the Section. The Court in applying the provisions of this section is also required to consider the circumstances of the case, character of the offender and nature of the offence before exercising its discretion. So far as the prayer of learned counsel for the appellant for 19. providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded by the Apex Court.

20. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:— 7 CRLA No. - 6 of 2005 “4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them 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 offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act.”

21. Further the Hon'ble Supreme Court in the case of Ved Prakash vs

Brief facts of the case are that on 04.02.2002, the complainant, Shripal Gupta, was returning home on a bicycle along with his younger brother, Satrohanlal Gupta. The complainant was sitting on the rear carrier of the bicycle, while his younger brother, Satrohanlal Gupta, was riding it. When they reached Shahmahauli Pirpur crossing on Sitapur– Lakhimpur Road at about 3:00 p.m., Mahesh met them, caught hold of the bicycle handle, threw them down, and started abusing them. When Satrohanlal objected, Mahesh fired at him with a tamancha (country- made pistol) with the intent to kill. The shot hit Satrohanlal on the right side of his chest, causing him to fall to the ground. The complainant, in order to save himself, ran towards Pirkhur.

5. On this allegation, PW-4 Sripal Gupta gave a written report Exhibit-Ka-16 at Police Station Kotwali Sitapur and the case was registered under Sections 504/307 I.P.C. and 7 Criminal Law Amendment Act as Case Crime No. 194/2002.

6. The investigation was handed over to S.I. R. B. Singh, who visited the place of occurrence and prepared the site plan and even recorded the statements of the witnesses, conducted the medical examination and concluded the investigation and submitted charge-sheet under Sections 307/504 I.P.C and Section 7 Criminal Law Amendment Act before the Court of Chief Judicial Magistrate, Sitapur. 3 CRLA No. - 6 of 2005 On 7-2-2002, during the investigation, the investigating officer arrested the accused Mahesh Prasad at Sunderlal's shop in Shahamholi and on his pointing out recovered one Tamancha and one empty cartridge from a box in his house. Recovery report Exhibit-Ka-8 was prepared in this regard and on that basis case No. 206/2002 under Section 25 (1-B) of the Arms Act was registered. This case under Section 25(1-B) of the Arms Act was investigated by Sub-Inspector R.K. Ram, who recorded the statements of witnesses and prosecution. Sanction was obtained from the District Magistrate, Sitapur on 27-2-2002 to prosecute the accused under Section 25 (1-B) of the Arms Act thereafter a charge sheet under Section 25(1-B) of the Arms Act was filed against the accused Mahesh in the court. The Court of Chief Judicial Magistrate, Sitapur, wherein after furnishing the copies of relevant documents to the accused person, finding the case exclusively trible by the Session, committed to the court of session on 25.04.2002.

7. From the court of Session Judge, the case was transferred in the Court of Additional Session Judge, Fast Track Court No.5, Sitapur, wherein against the accused person charges under Sections 307/504 I.P.C, 7 Criminal Law Amendment Act and Section 25 (1-B) Arms Act were framed and which were explained to accused person. The accused- appellant denied the charges levelled against him and claimed to be tried.

8. In order to prove its case, prosecution examined five witnesses namely PW-1 Satrohan Lal, PW-2 Dr. P.P.Singh, PW-3 Constable 348 Shiv Naresh Singh, PW-4 (the complainant) Sripal Gupta, PW-5 S.I. Raj Bahadur Singh, PW-6 S.I. Ram Krishna Ram.

9. After completing the evidence by the prosecution, statement of accused/ appellant under Section 313 Cr.P.C. was recorded by the trial 4 CRLA No. - 6 of 2005 court explaining the entire evidence and attending incriminating circumstances, whereby the accused-appellant denied the prosecution story and evidence against him. He specifically stated that he has falsely been implicated in this case.

10. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, found the accused / appellant guilty and convicted the appellant- Mahesh Prasad for two years rigorous imprisonment with fine of Rs. 2000/-under Section 324 I.P.C., for six months rigorous imprisonment under Section 504 I.P.C. with default stipulations and for one year rigorous imprisonment with fine of Rs. 1000/- under Section 25 (1-B) and acquitted him for the offence under Section 7 Criminal Law Amendment Act.

11. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellant- Mahesh Prasad has preferred the present appeal before this Court.

12. Learned counsel for the appellant submitted that although he has preferred the appeal against the judgment of conviction and order of punishment, but at this stage, he only intends to press the appeal in respect of sentence only and he does not want to press the appeal on merit.

13. Learned counsel for the appellant submitted that the State of Uttar Pradesh has its own local law of probation i.e. Uttar Pradesh First Offenders Probation Act, 1938. He further submitted that the Probation of Offenders Act, 1958 (Central Act) (herein after referred as the Act of 5 CRLA No. - 6 of 2005 1958) is also applicable in the State of Uttar Pradesh as held by Hon’ble the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2 SCC 198. Thus, learned counsel for the appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

14. Learned counsel for the appellant submitted that the incident took place 23 years ago and there is no further criminal antecedent against the appellant and the present age of the appellant is about 65 years. The delay in trial deprives the right of the appellant of speedy trial and he may be given benefit of first offender and appellant may be extended the benefit of Act of 1958. He further submitted that appellant is first time offender and he is not previously convicted in any case. He further submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellants.

15. Learned A.G.A. on the other hand opposed the appeal and has submitted that there is no material irregularity or illegality committed by trial court and keeping in view the evidence on record, accused-appellant has been rightly convicted.

16. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused-appellant on certain stipulations as specified in Section 4 of the Act of 1958.

17. Before dealing with the contention of learned counsel for the appellant, it is useful to quote Sections 3 and 4 of the Probation of Offenders Act, 1958: “3. Power of court to release certain offenders after admonition.- "Where 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 6 CRLA No. - 6 of 2005 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.

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." Section 4 of the Act of 1958 is applicable where a person is found 18. guilty of committing an offence where punishment is neither life sentence nor death. The Court may release such an accused on probation of good conduct on his furnishing a bond as mentioned in the Section. The Court in applying the provisions of this section is also required to consider the circumstances of the case, character of the offender and nature of the offence before exercising its discretion. So far as the prayer of learned counsel for the appellant for 19. providing benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the legal position and law propounded by the Apex Court.

20. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:— 7 CRLA No. - 6 of 2005 “4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them 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 offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act.”

21. Further the Hon'ble Supreme Court in the case of Ved Prakash vs