# Abu Talib & Ors v. State of U.P

- **Citation:** (2023) 2 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-03
- **Case number:** Criminal Appeal No. 466 of 2001
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abu-talib-ors-v-state-of-u-p-49720
- **Pages:** 9

## Headnote

Criminal Law- Probation of Offenders Act,
1958- Section 4 - Code of Criminal
Procedure,
1973-Section
357,
Section
360-
The
effect,
relevance
and
applicability of Section 360 Cr.P.C. have
not been considered by the trial court and
appellants
deserve
probation
under
Section 325 IPC - Since the incident
occurred near about 31 years ago and
during intervening period he had not
indulged into any criminal activity nor he
had any criminal background - Section
357 Cr.P.C. empowers the Court to award
compensation to the victim(s) of the
offence in respect of the loss/injury
suffered. The object of the section is to
meet the ends of justice in a better way.
This section was enacted to reassure the
victim that he is not forgotten in the
criminal justice system. The amount of
compensation
to
be
awarded
under
Section 357 Cr.P.C. depends upon the
nature of crime, extent of loss/damage
suffered and the capacity of the accused
to pay, which the Court has to conduct a
summary inquiry-Benefit of Section 4 of
the Probation of First Offender Act, 1958
should be provided to the appellants- Fine
of
Rs.10,000/-each
is
enhanced
to
Rs.30,000/-each, which shall be deposited
before the trial court.

The Probation of Offenders Act confers power
upon the court to release certain offenders on
probation of good conduct, the same Act along
with Section 357 of the CrPc also gives power to
the courts to provide compensation to the victim
and therefore the said provisions have to be
2 All. Abu Talib & Ors. Vs. State of U.P.
619
taken into account by the courts at the stage of
sentencing the accused.(Para 22, 23, 24, 25)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

618 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In Paragraph 25 of Kapilaben
Ambalal Patel (supra), the Court noted the
delay and declined to interfere with the
order of the High Court. Relevant portion
reads thus:

"Furthermore, in the grounds all
that is asserted is that the High Court erred
in holding that there was delay of 14 years
in filing of writ petition and in not
appreciating that the notice under Section
10(5) of the 1976 Act dated 23-1-1986, was
not served upon Ambalal Parsottambhai
Patel as he had already expired on 31-121985 and notice sent to him was returned
bacy on 2-2-1986 unserved with remark
"said owner has expired". Further, the
legal heirs of Ambalal Parsottambhai Patel
ought to have been served with the said
notice.........Be that as it may, we are not
inclined to reverse the conclusion recorded
by the Division Bench of the High court
that the writ petition filed by the appellants
was hopelpessly delayed and suffered from
laches. That is a possible view in the facts
of the present case."

18. For the reasons aforestated and
also in view of the law laid down by
Hon'ble Supreme Court in the case of
Bhaskar
Jyoti
Sharma
(supra),
Kapilaben Ambalal Patel (supra) and a
coordinate bench decision of this Court in
the case of Shiv Ram Singh (supra), we
do not find any merit in the writ petition,
apart from the fact that it is also hit by
inordinate
unexplained
laches.
Consequently,
the
writ
petition
is
dismissed.
----------
(2023) 2 ILRA 618
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.02.2023

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 466 of 2001

Abu Talib & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ajmal Khan

Counsel for the Respondent:
Govt. Advocate, Prem Prakash Singh

Criminal Law- Probation of Offenders Act,
1958- Section 4 - Code of Criminal
Procedure,
1973-Section
357,
Section
360-
The
effect,
relevance
and
applicability of Section 360 Cr.P.C. have
not been considered by the trial court and
appellants
deserve
probation
under
Section 325 IPC - Since the incident
occurred near about 31 years ago and
during intervening period he had not
indulged into any criminal activity nor he
had any criminal background - Section
357 Cr.P.C. empowers the Court to award
compensation to the victim(s) of the
offence in respect of the loss/injury
suffered. The object of the section is to
meet the ends of justice in a better way.
This section was enacted to reassure the
victim that he is not forgotten in the
criminal justice system. The amount of
compensation
to
be
awarded
under
Section 357 Cr.P.C. depends upon the
nature of crime, extent of loss/damage
suffered and the capacity of the accused
to pay, which the Court has to conduct a
summary inquiry-Benefit of Section 4 of
the Probation of First Offender Act, 1958
should be provided to the appellants- Fine
of
Rs.10,000/-each
is
enhanced
to
Rs.30,000/-each, which shall be deposited
before the trial court.

The Probation of Offenders Act confers power
upon the court to release certain offenders on
probation of good conduct, the same Act along
with Section 357 of the CrPc also gives power to
the courts to provide compensation to the victim
and therefore the said provisions have to be
2 All. Abu Talib & Ors. Vs. State of U.P.
619
taken into account by the courts at the stage of
sentencing the accused.(Para 22, 23, 24, 25)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Ankush Shivaji Gaikwad Vs St. of Maha.
MANU/SC/0461/2013: (2013) 6 SCC 770

2.
Jitendra
Singh
Vs
St.
of
U.P.
MANU/SC/0679/2013 : (2013) 11 SCC 193

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard Mr. Azmal Khan, learned
counsel for appellant, Mr. Prem Prakash Singh,
learned counsel for complainant and Ms.
Shikha Sinha, learned A.G.A. for the State and
perused the trial court record.

2. This criminal appeal has been preferred
by appellants challenging the impugned
judgment and order dated 26.06.2001 passed by
learned Additional Sessions Judge (Fast Track
Court), Pratapgarh in Sessions Trial No. 103 of
1994, arising out of Case Crime No. 22 of
1990, under Sections 307/34 & 323/34 IPC,
Police Station Raniganj, District Pratapgarh. By
the said judgment, the appellants has been
convicted and sentenced for offence under
Section 307/34 IPC for ten years rigorous
imprisonment and fine of Rs. 10,000/- each. In
default of payment of fine, they were to
undergo
for
three
months
additional
imprisonment. For the offence under Section
323/34
IPC
for
six
months
rigorous
imprisonment. Both the sentences were directed
to run concurrently.

3. Brief facts of this case emerges out
as under:-

An FIR was lodged by complainant
Ismail with the allegation that on 2.2.1990 at
9:00 a.m., dried bush of acacia was lying in
the way near his house by which the pathway
was obstructed. When the informant Ismail
and his daughter Kismatulnishan tried to
remove the said bush then due to old enmity,
the appellants on the exhortation of coaccused Fariduddin; other appellants started
threatening with dire consequences and
attacked
with
lathi
on
the head
of
Kismatulnisha. The complainant tried to save
his daughter then all the appellants also
inflicted lathi blow to complainant. On the
shrieks of complainant, Shamshad Ali,
Murtaza and other villagers rushed towards
the place of occurrence and intervened. Due
to this incident, injured Kismatulnishan
received grievous injuries. FIR of this case
was lodged by complainant Ismail. On the
basis of this written report, FIR of this case
was lodged on 2.2.1990 at 15:05 hours
against the accused appellants. After lodging
of this FIR, investigation of this case was
entrusted to Investigating Officer Nehal
Ahmad.

4. Before lodging the FIR injured
Kismatulnishan was examined before the
District Hospital Pratapgarh on 2.2.1990 at
11;45: a.m. and following injuries were
found on her body:-

(i) Lacerated wound 5 cm. x 1
cm. x scalp deep left side head above 2 cm.
left ear. Fresh bleeding was present.

(ii) Complain of pain on left side
chest during respiration. On examination
tenderness is present over the lower rib.

5. Both the injuries were kept under
observation. The injury was caused by
some hard and blunt object. The duration
was over three-four hours late.

6.

The
injury
of
injured
Kismatulnishan
was
kept
under
620 INDIAN LAW REPORTS ALLAHABAD SERIES
observation. As per x-ray report, so far as
injury no. 1 is concerned, no any
discrepancy was seen on the head of
Kismatulnishan. But as per x-ray of chest,
there was fracture of 9th, 10th and 11th ribs
of left side.

7. Other injured Ismail was also
examined in District Hospital, Pratapgarh at
12:02 hours on the same day and following
injuries were seen:-

(i) Lacerated wound 1 c.m. x 1⁄2
cm. x scalp deep, on right side head, 11 c.m.
right along right pinna, fresh bleeding
present.

8. The injury was simple in nature and
caused by some hard and blunt object and
duration was about 3-4 hours late.

9. During course of investigation, the
Investigating
Officer
collected
medical
reports of the injured persons and statements
of first informant and injured and several
other
persons
were
recorded.
During
investigation also the Investigating officer
prepared site plan on the pointing out of the
first informant.

10. After completing all the formalities
of the investigation, the Investigating Officer
filed charge sheet before the court concerned
against all the appellants under Sections 323,
504, 506, 325 and 307 IPC. Thereafter the
case was committed on 27.10.1994 to the
court of sessions for trial, which is registered
as Sessions Trial No. 103 of 1994.

11. At the time of framing of charge,
co-accused Fariduddin was reported to be no
more, so the trial was abated by the trial
court. After hearing both the parties, the
charges were framed against the accused
appellants under Section 307/34 and 323/34
IPC in which charges were read-over to the
appellants in hindi to which they denied all
the allegations levelled against them and
claimed to be tried.

12. In order to prove its case, the
prosecution has examined the following
witnesses:-

(i) PW-1 Mohd. Ismail, who is
the complainant of this case. He proved the
written report as Ex. Ka-1.

(ii) PW-2 Kismatulnishan was
examined. She is also an injured witness.
She has stated in her statement that due to
old
enmity,
the
assailant
committed
Maarpeet with lathi, kicks and fists, due to
this reason, she got injuries on her head and
left side of ribs. She remained in hospital
about 13 days. Thus she supported the
entire version of the prosecution.

(iii)
PW-3
Dr. Ajit
Kumar
Kulshreshtha, who proved the injury report
of PW-2 injured Kismatulnishan as Ex. Ka2 and injury report of PW-1 complainant
injured Ismail as Ex. Ka-3. He also proved
x-ray report as Ex. Ka-4 as secondary
evidence.
(iv) PW-4 Shamshad Ahmad, eyewitness of
the alleged incident. He is independent
witness and has supported the prosecution
case. There is no material contradictions in
the statement of this witness.

(v) PW-5 Nehal Ahmad has stated
that this case was registered in his absence
and later, the investigation of this case was
entrusted to him. During course of
investigation, he prepared the site plan,
which has been proved as Ex. Ka-5. After
collecting the x-ray and x-ray report and
injury report, he converted the case under
Section
307
and
325
IPC.
During
investigation he prepared recovery memo
of bloodstained clothes, which has been
2 All. Abu Talib & Ors. Vs. State of U.P.
621
proved as Ex. Ka-6 and charge sheet was
proved by him as Ex. Ka-7. Thus he is a
formal witness.

13. Thus the prosecution has relied
upon the oral evidence of PW-1 to PW-5
and Ex. Ka-1 to Ex. Ka-7 as documentary
evidence.

14.
 Subsequent
to
closure
of
prosecution
evidence,
statement
of
appellants under Section 313 Cr.P.C. was
recorded by trial court explaining entire
evidence
and
other
incriminating
circumstance. In statement recorded under
Section 313 Cr.P.C., the accused appellant
denied prosecution version and stated that
at the time of incident they were not
present on the place of occurrence. The
appellants have falsely been implicated. In
defence, they did not choose to lead any
evidence.

15. After hearing both the parties and
appreciating entire oral and documentary
evidence available on record, the trial court
convicted
the
accused
appellants
as
aforesaid.

16. Learned counsel for appellants has
submitted that the appellants are innocent
and have falsely been implicated in this
case. Further submission is that there are
material contradictions in the statements of
PW-1 and PW-2. As per prosecution
version, three persons inflicted with lathi
but only two injuries were seen on the body
of the injured Kismatulnishan. It is further
submitted that the place of injury, which
was inflicted to Kismatulnishan was not
found on the vital part. Therefore, the case
under Section 307 IPC is not made out
against the appellants. The trial court
without appreciating the evidence available
on record, has wrongly convicted the
appellants under Section 307 IPC. If the
prosecution case is admitted in toto, then
the case does not travel beyond the purview
of Section 325 IPC.

17. Learned counsel for appellants has
lastly submitted that the matter pertains to
the year 1990 and 33 years have already
passed. The first informant Ismail and coaccused Fariduddin is no more. Both of
them were the real brother but injured PW2 Kismatulnishan is the daughter of first
informant and other appellants are the
cousin. Presently both the parties, the
appellants and injured Kismatulnishan, who
is 76 years old and cordial relations
developed between them, are well rooted in
society. He further submits that it is an old
matter and no fruitful purpose would be
served to send the appellants in jail. Further
submission is that the appellants are ready
to pay compensation to the injured. The
appellants
have
not
been
convicted
previously for any offence, therefore,
lenient view may be taken against the
appellants.

18. It is further submitted that if the
prosecution case admitted in toto, the case
does not travel beyond Section 325 IPC.
Further learned counsel for appellants
submitted that though there are sufficient
reason to challenge the judgment on merits
yet they are restricting the challenge to
non-consideration of the applicability of
provision contained in Section 4 of
Probation of Offenders Act, 1958 (in short
"Probation Act") and Section 360 Cr.P.C. as
the offence under Section 325 IPC is made
out against the appellant.

19. Learned A.G.A. for the State has
opposed the appeal and has submitted that
there is no material irregularity or illegality
committed by the trial court. Further
622 INDIAN LAW REPORTS ALLAHABAD SERIES
submission is that keeping in view the
evidence available on record the accused-
appellant has rightly been convicted by the
trial court.

20. It would be appropriate to quote
Section 360 Cr.P.C. reads as follows:-

Section 360 Cr.P.C. reads as
follows:

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

(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:

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).

(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.

(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.

(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.

(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:
2 All. Abu Talib & Ors. Vs. State of U.P.
623
Provided that the High Court or Court of
Session shall not under this subsection
inflict a greater punishment than might
have been inflicted by the Court by which
the offender was convicted.

(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.

(7) The Court before directing the
release of an offender under sub-section
(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.

(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 recognisance, it may issue
a warrant for his apprehension.

(9)
An
offender,
when
apprehended on any such warrant shall be
brought forthwith before the Court issuing
warrant, and such Court may either remand
him in custody until the case is heard or
admit him to bail with a sufficient surety
conditioned on his appearing for sentence
and Court may, after hearing the case, pass
sentence.

(10) Nothing in this section shall
affect the provisions of the Probation of
Offenders Act, 1958 (20 of 1951), 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."

Section 361 Cr.P.C. reads as
under:-

361.
Special
reasons
to
be
recorded in certain cases. Where in any
case the Court could have dealt with,-

(a) an accused person under
section 360 or under the provisions of the
Probation of Offenders Act, 1958 (20 of
1958 ), or

(b) a youthful offender under 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, but has not done so, it
shall record in its judgment the special
reasons for not having done so.

Section 3, 4 and 5 of the
Probation of First Offenders Act reads as
under:-

Section 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.

Section 4 Power of court to
release certain offenders on probation of
good conduct.
624 INDIAN LAW REPORTS ALLAHABAD SERIES

(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 sub-section (1), the court shall take
into consideration the report, if any, of the
probation officer concerned in relation to
the case.

(3) When an order under subsection (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 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.

(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.

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

(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--

(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.

(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.

(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.
2 All. Abu Talib & Ors. Vs. State of U.P.
625

21. It is rightly contended by the
learned counsel for the appellant that the
effect, relevance and applicability of
Section
360 Cr.P.C. have
not
been
considered by the trial court and appellants
deserve probation under Section 325 IPC
also.

22. There are other legislative
requirements that need to be kept in mind.
The Probation of Offenders Act provides,
in Section 5 thereof for payment of
compensation to the victim of a crime (as
does Section 357 of the Code of Criminal
Procedure). Yet, additional changes were
brought about in the Code of Criminal
Procedure in 2006 providing for a victim
compensation scheme and for additional
rights to the victim of a crime, including
the right to file an appeal against the grant
of inadequate compensation. How often
have the Courts used these provisions?

23. In Ankush Shivaji Gaikwad v.
State
of
Maharashtra
MANU/SC/0461/2013: (2013) 6 SCC 770
and Jitendra Singh v. State of U.P.
MANU/SC/0679/2013 : (2013) 11 SCC
193 the Court held that consideration of
grant of compensation to the victim of a
crime is mandatory, in the following words
taken from Ankush Shivaji Gaikwad:

"While the award or refusal of
compensation in a particular case may be
within the court's discretion, there exists a
mandatory duty on the court to apply its
mind to the question in every criminal case.
Application of mind to the question is best
disclosed
by
recording
reasons
for
awarding/refusing compensation."

24. Coming to the sentence to be
imposed on the appellant, since the incident
occurred near about 31 years ago and
during intervening period he had not
indulged into any criminal activity nor he
had any criminal background, so in view of
the above, considering the entire facts and
circumstances of the case.

25. In the present appeal fine of
Rs.10,000/- each has been imposed by the
trial court on the appellants. Section 357
Cr.P.C. empowers the Court to award
compensation to the victim(s) of the
offence in respect of the loss/injury
suffered. The object of the section is to
meet the ends of justice in a better way.
This section was enacted to reassure the
victim that he is not forgotten in the
criminal justice system. The amount of
compensation to be awarded under Section
357 Cr.P.C. depends upon the nature of
crime, extent of loss/damage suffered and
the capacity of the accused to pay, which
the Court has to conduct a summary inquiry
as well as considering the submission of
learned counsel for appellant as earlier, this
Court is of the view that benefit of Section
4 of the Probation of First Offender Act,
1958 should be provided to the appellants.
Thus the appeal is partly allowed. The
conviction as directed by trial court under
Section 307 IPC is converted to Section
325 IPC as prima facie offence does not
travel beyond the purview of Section 325
IPC. Thus the conviction under Section
325/34 and 323/34 IPC is confirmed and
the appellants are directed to be released
on probation under Section 4 of the U.P.
Probation of First Offenders Act with
stipulated condition that he will keep
peace and good conduct for one year
subject to furnishing personal bond and
two sureties of like amount of Rs.40,000/-
before the Court.

26. Considering the law propounded
by Hon'ble Apex Court and as per
626 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Section 357 Cr.P.C., I am of
the view that compensation should be
awarded to the victim's family.

27. Therefore, fine of Rs.10,000/-each
is enhanced to Rs.30,000/-each, which shall
be deposited before the trial court. Out of
Rs.90,000/-, Rs. 60,000/- shall be paid to
injured Kismatulnishan and Rs. 30,000/-
shall be deposited in State Exchequer. If the
appellants fail to pay aforesaid amount
then, they shall undergo imprisonment and
sentence as directed by they trial court.
Fifteen days time is granted to appellants to
deposit the fine as mentioned by this Court.
The appellants are on bail. They need not to
surrender.

28. Fifteen days is provided to the
appellants to deposit fine amount from the
date of production of a certified copy of
this order.

29. Thus, the appeal is dismissed on
the point of conviction and partly
allowed on the point of sentence.

30. Office is directed to communicate
this order to the trial court concerned. The
trial court record be sent back.
----------
(2023) 2 ILRA 626
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 943 of 2009

Munna Lal Patel ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Mrs. Alka Srivastava, Sri Amit
Rai, Sri C.L. Chaudhary (A.C.), Sri Mohd.
Akhtar, Ms. Sufiya Bano

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 45- The direct evidence in
the case is that of the eye-witnesses who
had
seen
and
narrated
the
entire
occurrence. The evidence of a doctor or an
expert is merely an opinion which lends
corroboration to the direct evidence in the
case.
Where
there
is
a
glaring
inconsistency between direct evidence
and the medical evidence in respect of the
entire
prosecution
story,
that
is
undoubtedly a manifest, defect in the
prosecution
case.
There
is
no
inconsistency between the direct evidence
and the medical evidence. The postmortem report as well as statement of
P.W.-3 who conducted the autopsy, as per
which the cause of death of the deceased
is asphyxia due to strangulation and fully
corroborate the prosecution version i.e.
statements of witnesses of fact P.W.-1
and P.W.-2. In the present case motive is
also present.

Where the medical evidence corroborates the
direct evidence then the case of the prosecution
cannot be disbelieved unless there is a glaring
contradiction between the direct evidence and
medical evidence.

Indian Evidence Act, 1872- Section 3-
Merely because the witnesses examined
by the prosecution are relatives of the
victim/deceased by itself will not be
sufficient to discard and discredit the
evidence of the relative witnesses, if
otherwise they are found to be truthful
witnesses and rule of caution is that the
evidence of the relative witnesses has to
be reliable evidence which has to be
accepted
after
deep
and
thorough
scrutiny. It is no doubt true that in the
present case, the prosecution has not