# Akhilesh Shukla & Ors v. State of U.P

- **Citation:** (2023) 4 ILRA 945
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Criminal Appeal No. 638 of 1996
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-shukla-ors-v-state-of-u-p-50056
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 323, 324 & 307 - The
Code of Criminal Procedure, 1973 -
Section 360 - Probation of Offenders Act,
1958 - Section 4 - Appeal against
conviction - On 25.05.1985, the informant
was taking bath at his door - Accused
hurled abuses on informant, exhorted the
co-accused to kill him - Hearing this,
informant ran to his verandah - Accused
armed with lathi, pharsa and gun with the
object of committing murder, entered into
his verandah - He was dragged, beaten
severely by accused - The informant
received injuries caused by lathi and
pharsa - Charges framed - Prosecution
examined P.W.1, P.W.2 as witnesses of
fact - P.W.3, P.W.4 were examined as
formal witnesses - Held, on careful
perusal of evidence of P.W.1, P.W.2 it is
found that their evidence is cogent,
reliable - There is long standing enmity
and litigation has taken place between
them - Generally, independent witness
could not come to support either side, if
he supports one party, the other party will
become inimical to him - Evidence of
P.W.1,
P.W.2
is
corroborated
by
documentary evidence - Considering the
evidence of P.W.1, P.W.2, the alleged
contradictions in their evidence is minor
and natural - It doesn't affect prosecution
case in its entirety - The prosecution has
proved charge under aforesaid sections
beyond all reasonable doubts - After
convicting, the trial court instead of
sending them to jail, have released them
on probation - No illegality in the
impugned order, conviction is upheld.
(Para 2, 7, 9, 10, 30, 31, 37, 38, 39, 46,)

Appeal is dismissed. (E-13)

List of Cases cited:

## Text

4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
945
2 months from the date of production of a
self attested copy of this order, which may
be verified from the web-site of Allahabad
High Court.
----------
(2023) 4 ILRA 945
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 638 of 1996

Akhilesh Shukla & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.K. Singh, Sri Shashi Prakash Rai, Sri
Himanshu Mishra

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 323, 324 & 307 - The
Code of Criminal Procedure, 1973 -
Section 360 - Probation of Offenders Act,
1958 - Section 4 - Appeal against
conviction - On 25.05.1985, the informant
was taking bath at his door - Accused
hurled abuses on informant, exhorted the
co-accused to kill him - Hearing this,
informant ran to his verandah - Accused
armed with lathi, pharsa and gun with the
object of committing murder, entered into
his verandah - He was dragged, beaten
severely by accused - The informant
received injuries caused by lathi and
pharsa - Charges framed - Prosecution
examined P.W.1, P.W.2 as witnesses of
fact - P.W.3, P.W.4 were examined as
formal witnesses - Held, on careful
perusal of evidence of P.W.1, P.W.2 it is
found that their evidence is cogent,
reliable - There is long standing enmity
and litigation has taken place between
them - Generally, independent witness
could not come to support either side, if
he supports one party, the other party will
become inimical to him - Evidence of
P.W.1,
P.W.2
is
corroborated
by
documentary evidence - Considering the
evidence of P.W.1, P.W.2, the alleged
contradictions in their evidence is minor
and natural - It doesn't affect prosecution
case in its entirety - The prosecution has
proved charge under aforesaid sections
beyond all reasonable doubts - After
convicting, the trial court instead of
sending them to jail, have released them
on probation - No illegality in the
impugned order, conviction is upheld.
(Para 2, 7, 9, 10, 30, 31, 37, 38, 39, 46,)

Appeal is dismissed. (E-13)

List of Cases cited:

1. Suresh Sitaram Surve Vs St. of Mah., AIR
2003 SC 344

2. Baleshwar Mahto Vs St. of Bihar, AIR 2017 SC 827

3. Karthik Malhar Vs St. of Bihar, 1996 Cr.L.J. 889

4. St. of Andhra Pradesh Vs Punati Ramulu, AIR
1993 SC 2644

5. Leela Ram (dead) through (Duli Chandra) Vs
St. of Har. & ors., 2000 SC (Cr) 222

6. Krishna Mochi & ors. Vs St. of Bihar, 2002
SCC (Cri) 1220

7. Subhash Chand & ors. Vs St. of U.P., 2015
Lawsuit (Alld) 1343

8. St. of Maharashtra Vs Jagmohan Singh Kuldip
Singh Anand & ors. (2004) 7 SCC 659

9. Jagat Pal Singh & ors. Vs St. of Har., AIR
2000 SC 3622

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri Shashi Prakash Rai, learned
counsel for the appellants and learned
A.G.A. for the State.
946 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This criminal appeal has been
instituted against the judgement and order
dated 30.03.1996 passed by Sessions
Judge, Siddharthnagar, in Sessions Trial
No. 135 of 1991, State Vs. Ram Ashish and
others, arising out of Case Crime No. 38 of
1985 u/s 147, 148, 323, 324, 307 I.P.C.,
P.S.- Uska Bazar, District- Siddharthnagar.

3. By the impugned judgement and
order, the trial court has convicted the
accused, namely, Ram Ashish, Ram Kishor,
Akhilesh, Arvind, Ravindra, Satyadeo and
Girjesh u/s 147, 148, 323, 324 r/w 149
I.P.C. and released on probation for two
years on the condition of maintaining good
conduct and peace in society on furnishing
personal bonds of Rs.5,000/- and two
sureties in the like amount.

4. The trial court acquitted all the
accused from charge u/s 307 I.P.C. No
appeal has been filed against acquittal u/s
307 I.P.C. as the order of acquittal has
become final.

5.
During
pendency
of
appeal,
appellant no. 6, Satyadeo and appellant no.
7, Ram Kishor, have died and criminal
appeal qua these appellants was abated vide
order dated 18.08.2018.

6. It is submitted in the grounds of
appeal that the conviction is against the
evidence on record. It is also submitted
that the conviction is wrong and the
sentence is too severe. It is also submitted
that appellant, Ravindra Kumar Shukla is
a government employee and posted as
police constable at Gonda. Appellant,
Arvind is in service in Delhi. It has also
been submitted that appellant, Ram
Ashish is studying in L.L.B. IInd year
from Ram Manohar Lohia University,
Faizabad, now Ayodhya.

7. The prosecution case in brief is that
informant, Govind, is the resident of
village, Mehaniyna Bujurg, Police Station-
Uska Bazar, District- Siddharthnagar. The
accused are also resident of the same
village. There was enmity due to litigation
between the informant and co-accused
Satyadeo. The informant Govind is a
commission agent and often remains
outside his village. The tilak ceremony of
informant's nephew, Arun Kumar was to be
held on 29.05.1985. Therefore, informant
had gone to his village on 25.05.1985 to
participate in the ceremony. On 25.05.1985
at 7.30 p.m., the informant was taking bath
at his door. Accused, Ram Ashish, hurled
abuses on informant and exhorted the coaccused to kill the informant. Hearing the
exhortation, informant ran to his verandah.
Thereupon, the accused, Ram Ashish,
Akhilesh, Girjesh, Arvind, Ravindra all
sons of Satyadeo and Ram Kishor armed
with lathi, pharsa and gun with the object
of committing murder of the complainant,
entered into his verandah. He was dragged
out and beaten severely by the accused.
Accused, Ram Ashish assaulted with
pharsa and remaining accused with lathi.
The informant made hue and cry on which
witnesses Harihar, Shiv Raj, Parsadi and
other villagers reached there, saw the
occurrence and saved the informant. The
informant received injuries caused by lathi
and pharsa.

8. On the basis of the written report of
informant, Constable Moharrir, Ram Kamal
Mani
Tripathi,
registered
the
first
information report on 25.05.1985 at 20.05
o'clock. The chik F.I.R. was prepared by
him as (Ext.Ka.2). He made entry in G.D.
about the registration of criminal case on
25.05.1985 at 20.05 o'clock as G.D. No. 36.
The certified carbon copy of the G.D. is
(Ext.Ka.4). The investigation was done by
4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
947
Investigating Officer, S.I. Shyam Kishor
Mishra who visited the place of occurrence
and prepared fard of plain mud and bloodstained mud collected from the spot which
was kept in two separate containers which
were wrapped by cloth and sealed. The
recovery memo of aforesaid mud is
(Ext.Ka.5). The plain mud is (material
Ext.1) and blood-stained mud is (material
Ext.2). The Investigating Officer recorded
the statement of the witnesses and after
investigation,
submitted
charge-sheet
(Ext.Ka.6) u/s 147, 148, 149, 323, 324, 307
I.P.C.
against
the
accused,
namely,
Akhilesh, Arvind, Ravindra, Ram Ashish,
Girjesh all sons of Satyadeo and Satyadeo
and Ram Kishor, sons of Ram Chandra
Shukla.

9. On 04.12.1992, the court framed
charge u/s 147, 148, 323, 149, 324, 307
I.P.C. against the accused. The accused
denied the charge and claimed trial.

10. To prove the charge, prosecution
examined informant P.W.1 Govind Prasad
and P.W.2 Harihar as witnesses of fact. It
also examined P.W.3 Dr. Ashok Kumar and
Investigating Officer P.W.4 S.I. Shyam
Kishor Mishra as formal witnesses.

11. On 21.01.1995, the court recorded
statement of accused u/s 313 Cr.P.C. All the
accused
stated
that
false
case
was
registered by the informant due to enmity.
They stated that witnesses are giving false
evidence. The accused expressed their
ignorance about the documentary and
material
exhibits
proved
by
the
prosecution. Accused, Ram Kishor stated
that he was outside his village on the date
of occurrence and had gone to visit the
house of his ailing sister. Accused, Ram
Ashish stated that he had gone along with
co-accused,
Ravindra
to
attend
the
marriage of his brother-in-law and was not
present in the village. Accused, Arvind
stated that on the date of occurrence he was
in Delhi. Accused, Akhilesh stated that he
had gone to his village- Thakurapur.
Accused, Satyadeo stated that informant
Govind's cow was eating grains kept in his
verandah. He chased away his cow. Then,
Govind came with others to his house
assaulted him and his son, Girjesh. He
visited the police station but the daroga
kept him sitting there and registered his
first information report on 26.05.1985. The
medical examination was done through the
constable sent by the police station.

12. The accused examined D.W.1
Prabhunath Pandey and D.W.2 Hemant
Kumar in their defence. D.W.1 Prabhunath
Pandey has stated that accused, Ram
Ashish and his younger brother, Ravindra
had gone to village- Sheetalpur, P.S.-
Manjhi, District- Chhapra on invitation.
They participated in marriage ceremony
from 23.05.1985 to 26.05.1985. He proved
the marriage card as (Ext.Kha.1). D.W.2
Hemant
Kumar
stated
that
accused,
Akhilesh was present in village- Mahua,
P.S.- Nauchandwa, District- Maharajganj
from 24.05.1985 to 26.05.1985 and proved
his certificate (Ext.Kha.2). There was barhi
of one Vikram Shukla. He had gone to
participate in the ceremony.

13. In defence, the accused have also
filed copy of charge-sheet, site plan, first
information report, injury report and
statements of S.O., Shyam Kishor and Dr.
Ashok Kumar relating to criminal case
lodged by them against accused. The
documents are (Exts.Kha.1 to Kha.5),
statements
of
Investigating
Officer
(Ext.Kha.6) and that of Dr. Ashok Kumar
(Ext.Kha.7) and carbon copy of F.I.R.
(Ext.Kha.8).
948 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Heard the learned counsel for both
the parties and perused the entire lower
court record.

15. The informant and injured P.W.1
Govind Prasad has stated that on the date of
occurrence on 25.05.1985 at 7.30 p.m., he
was taking bath in his verandah. Ram
Ashish exhorted all other accused to kill
him. On hearing this, accused, Akhilesh,
Arvind, Ravindra, Satyadeo, Girjesh and
Ram Kishor reached in his verandah. They
dragged him out of it and with an intention
to kill him, started beating him with
pharsa, fists and kicks and also by lathi and
danda. He received lathi and pharsa
injuries. He lodged first information report
and was medically examined by Dr. Ashok
Kumar in P.H.C.- Uska Bazar.

16. P.W.2 Harihar stated in his
evidence that he is the brother of the
informant, Govind. On hearing his hue and
cry, he reached on the spot. He saw that all
the accused, namely, Akhilesh, Arvind,
Ravindra, Satyadeo, Girjesh, Ram Ashish
and Ram Kishor were beating his brother
with fists, kicks, pharsa, lathi, danda,
causing him injury.

17.
P.W.1
Govind
and
P.W.2
Harihar have supported the charge
framed against the accused. They have
deposed about the date, time and place
of
occurrence,
manner
of
assault,
manner of initiation of occurrence, the
participation of accused in the assault
and marpeet, the weapons used by them,
the injury caused to informant Govind
and after the occurrence, registration of
F.I.R. in P.S.- Uska Bazar and medical
examination of informant, Govind at
P.H.C., Uska Bazar by Dr. Ashok
Kumar.

18. P.W.3 Dr. Ashok Kumar has
proved the injury report (Ext.Ka.1) of
informant P.W.1 Govind Prasad. He has
stated that he examined the informant
Govind on 25.05.1985 at 8.30 p.m. He
found following injuries on the person of
injured Govind Prasad :-

(i) Incised wound measuring 5.5
cm x 0.5 cm x scalp deep on the rt. side of
head 10 cm away from the root of rt. ear,
blood oozing from the wound.

(ii) Lacerated wound measuring 6
cm x 0.5 cm x scalp deep on the lt. side of
head 9 cm away from the root of left ear.

(iii) Incised wound measuring 5.5
cm x 0.5 cm x bond-deep on the lt. side of
head, 4 cm away & above from the lt. upper
eye lashes.

(iv) Contusion measuring 21 cm x
1.5 cm on the lt. side of back in vertical
portion starting from upper part of back
towards lower part reddish and of rt. side
of back. Reddish colour.

(v) Abraded contusion measuring
16 cm x 1.5 cm on the upper part rt. side of
back. Reddish colour.

(vi) Contusion measuring 12 cm x
2 cm on the rt. side of back 3 cm away from
injury no. 5. Reddish colour.

(vii)
Abraded
contusion
measuring 17 cm x 2 cm on the lower part
of lt. side of back. Reddish colour.

(viii) Contusion measuring 10 cm
x 1 cm on the lower part of back.

(ix) Contusion measuring 12 cm x 2
cm on the lower part of back.

(x) Contusion measuring 10 cm x
1 cm on the lower part of back.

(xi) Contusion measuring 5 cm x
2 cm on the upper part of lt. side of
forearm. Reddish colour.

(xii) C/O paid on the both buttock
but no external injury are seen.
4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
949

19. In the opinion of P.W.3 Dr. Ashok
Kumar, all the injuries were simple and
caused by hard and blunt object except
injury nos. 1 and 3 which were caused by
some sharp-edged weapon. Duration of the
injuries was fresh.

20. The Investigating Officer, P.W.4
Shyam Kishor Mishra proved the chik
F.I.R. (Ext.Ka.2), entry of institution of
criminal case in the G.D. as G.D. no. 36
dated 25.05.1985 at 20.05 o' clock
(Ext.Ka.3), site plan (Ext.Ka.4), recovery
memo of plain mud and blood-stained mud
recovered from the place of occurrence
(Ext.Ka.5), plain mud (material Ext.1) and
blood-stained mud (material Ext.2) and
charge-sheet (Ext.Ka.6).

21. Although the defence has filed
copy of charge-sheet, chik F.I.R., site plan,
injury report and statements of S.O., Shyam
Kishor
and
Dr.
Ashok
Kumar
as
(Exts.Kha.1 to Kha.5), statements of
Investigating Officer (Ext.Kha.6) and that
of Dr. Ashok Kumar (Ext.Kha.7) and
carbon copy of F.I.R. (Ext.Kha.8) relating
to Case Crime No. 38A of 1985, P.S.- Uska
Bazar, these documents have not been
proved through examination of defence
witnesses in this case. Therefore, they
cannot be read in evidence in favour of
defence. Exhibits were mentioned on these
documents but from the perusal of the
record, it is clear that these documents were
not proved by Investigating Officer, Shyam
Kishor Mishra and Dr. Ashok Kumar in the
case.

22. According to the prosecution case
and evidence of prosecution witnesses,
P.W.1 Govind Prasad and P.W.2 Harihar,
the occurrence took place on 25.05.1985 at
7.30 p.m. The distance of the police
station from the place of occurrence is
about 1 mile. The report was promptly
lodged and the injured, Govind Prasad was
examined on 25.05.1985 at 8.30 p.m. The
injuries received by Govind Prasad is
mentioned in the G.D. (Ext.Ka.3). It
shows that the injured received injuries in
the occurrence of marpeet. The injuries
were caused to him by blunt and sharpedged weapon. The Medical Officer, P.W.3
Dr. Ashok Kumar has corroborated by his
evidence the evidence given by P.W.1
Govind
Prasad
and
P.W.2
Harihar
regarding
the
injuries
received
by
informant Govind Prasad. There is nothing
found in the cross of aforesaid prosecution
witnesses which may raise doubt on the
reliability and veracity of their evidence.

23. It has been argued by learned
counsel
for
the
defence
that
the
prosecution has not explained the injuries
received by accused, Satyadeo and Ram
Kishor. Therefore, the prosecution has not
proved the genesis of the case properly
and accused should be given benefit of
doubt.

24. There is no force in the arguments
advanced on behalf of the defence as the
alleged injury report of Satyadeo and Ram
Kishor has not been proved by crossexamining P.W.3 Dr. Ashok Kumar or
producing him in defence. There is
nothing on record to prove that in the
incident, accused Satyadeo and Ram
Kishor have received injuries. The defence
has not proved the prosecution papers,
namely, chik F.I.R., copy of G.D., site
plan, charge-sheet relating to the alleged
cross case Case Crime No. 29A/1985 and
injury reports of Satyadeo and Ram
Kishor. By simply filing the certified
copies of these documents, it cannot be
said to have been proved as per law and
cannot be used in favour of defence.
950 INDIAN LAW REPORTS ALLAHABAD SERIES

25. It has also been argued by
learned counsel for the defence that the
prosecution has examined only two
witnesses of facts, one the informant
injured P.W.1 Govind and the other
informant's
brother,
P.W.2
Harihar.
They are interested witnesses and in the
absence of independent witnesses, the
prosecution case cannot be said to be
proved.

26. In Suresh Sitaram Surve Vs. State
of Maharashtra, AIR 2003 SC 344, the
Apex Court has explained the law relating
to injured witness :-

"the evidence of an injured eyewitness cannot be discarded in toto on the
ground of inimical disposition towards the
accused particularly where his evidence,
when
tested
in
the
light
of
broad
probabilities, it can be concluded that he was
a natural eye-witness, and had no reason to
concoct a case against the accused."

27. In Baleshwar Mahto Vs. State of
Bihar, AIR 2017 SC 827, the Apex Court
has held :-

"where the eye-witness is also an
injured person, due credence to his version
needs to be accorded. The presence of the
injured witness thus becomes established
beyond all doubt. Their testimony could not
be rejected just only because they were
inimical to the accused."

28. In Karthik Malhar Vs. State of
Bihar, 1996 Cr.L.J. 889, the Apex Court
has stated the law relating to interested or
relative witness :-

"a close relative who is an
interested witness cannot be rejected as an
interested witness having a direct interest
in having the accused somehow or other
convicted. Relationship can never be a
factor to affect the credibility of the witness
as it is always not possible to get an
independent witness."

29. In State of Andhra Pradesh Vs.
Punati Ramulu, AIR 1993 SC 2644, the
Apex Court has held :-

"the evidence of witness cannot
be discarded for the mere fact that he was
an interested witness. The relationship or
the partisan nature of the evidence only
puts the court on its guard to scrutinize the
evidence more carefully."

30. In the light of the law propounded
by
the
Apex
court
regarding
the
appreciation of evidence of injured, relative
or partisan witness on careful perusal of the
evidence of P.W.1 Govind and P.W.2
Harihar, it is found that their evidence is
cogent, truthful and reliable. Nothing has
emerged in their cross-examination which
may raise doubt about truthfulness and
reliability of their evidence.

31. In the present case from the
evidence on record, it is clear that there is
long standing enmity between informant
and the accused and litigation has taken
place between them. They are inimical to
one another. Under these circumstances,
generally independent witness could not
come to support either side because if he
supports one party, the other party will
become inimical to him. Under these
circumstances, independent witness would
desist from giving evidence in court. In
such a case, only partisan and interested
witness would come to support the case.
The evidence of P.W.1 Govind and P.W.2
Harihar is corroborated by documentary
4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
951
evidence,
namely,
the
injury
report
(Ext.Ka.1), the chik F.I.R. (Ext.Ka.2), G.D.
relating
to
registration
of
the
case
(Ext.Ka.3), site plan (Ext.Ka.4), recovery
memo relating to plain mud and bloodstained mud (Ext.Ka.5), (material Ext.1 and
Ext.2) and charge-sheet filed against the
accused (Ext.Ka.6).

32. Accused, Satyadeo and Girjesh
have admitted that they were present at the
place of occurrence at the time of the
incident. Accused, Ram Kishor, Ram
Ashish, Arvind & Akhilesh has taken the
plea of alibi and have stated that they were
not present in the village at the time of
occurrence. Accused, Ram Kishor and
Arvind have not produced any evidence in
support of their plea of alibi. Accused, Ram
Ashish has produced his brother-in-law,
D.W.1 Prabhunath Pandey to prove that he
was attending the marriage of the daughter
of his brother-in-law and accused, Ravindra
was present in his village from 23.05.1985
to 27.05.1985. D.W.1 Prabhunath Pandey is
a relative of Ram Ashish. He could not tell
from where accused, Ravindra had arrived
to his village during that period. Regarding
the marriage card, he has admitted that
there is no signature on the marriage card.
He had also admitted that such card can get
printed on a later date from any printing
press. He has admitted that he has sent the
marriage card by post but he did not
produce the envelope on which the seal of
postal department is fixed. There is no seal
of postal department on the marriage card.
Therefore,
the
statement
of
D.W.1
Prabhunath
Pandey
regarding
the
participation of accused, Ram Ashish and
Ravindra on that date cannot be accepted.

33. D.W.2 Hemant Kumar who had
deposed
on
08.02.1995
that
accused,
Akhilesh was present from 24.05.1985 to
26.05.1985 in his village and he has seen him
in the barhi ceremony of Vikram Shukla. He
has produced a certificate (Ext.Kha.2) in
proof of the presence of accused, Akhilesh in
his village- Mahua, P.S.- Nautanwa, District-
Maharajganj. D.W.2 Hemant Kumar has
given the evidence after 10 years from the
date of barhi ceremony. He admitted that
large number of persons had participated in
the barhi ceremony. He did not clarify how
he could remember the presence of Akhilesh
after 10 years whereas Akhilesh is not his
relative and has not stayed in his house
during the period of attending the barhi
ceremony. He admitted that the certificate
(Ext.Kha.2) was prepared by some Mohd.
Haneef during the period of presence of
accused, Akhilesh in his village on a later
date. Thus, the statement of evidence of
D.W.2 Hemant Kumar regarding the presence
of accused in the barhi ceremony at the time
of occurrence is not acceptable and is
accordingly, rejected.

34. Learned counsel for the defence has
mentioned certain contradictions in the
statements of P.W.1 Govind and P.W.2
Harihar. Since the evidence of P.W.1 Govind
and P.W.2 Harihar was recorded in the court
more than 8 years after the date of
occurrence, therefore, minor contradictions in
their evidence is natural. Apart from this,
different witnesses had seen the occurrence
from different angle. Their capacity to
remember facts also differs. Therefore, some
contradictions in their statements about the
incident is natural.

35. In the case of Leela Ram (dead)
through (Duli Chandra) Vs. State of
Haryana and others, 2000 SC (Cr) 222,
the Apex Court has held :-

"There
are
bound
to
be
discrepancies between the narration of
952 INDIAN LAW REPORTS ALLAHABAD SERIES
different witnesses. When they speak on
details, and unless the contradictions are of
a material dimension, the same should not
be used to jettison the evidence in its
entirety. Incidentally, corroboration of
evidence with mathematical niceties cannot
be expected in criminal cases. Trivial
discrepancies ought not to obliterate an
otherwise acceptable evidence. One hardly
comes across a witness whose evidence
does not contain some exaggeration or
embellishment. Total repulsion of evidence
is unnecessary. The evidence is to be
considered from the point of view of
trustworthiness."

36. Similar law has been propounded
by the Apex Court in Krishna Mochi and
others Vs. State of Bihar, 2002 SCC (Cri)
1220.

37. Considering the evidence of P.W.1
Govind and P.W.2 Harihar, the alleged
contradictions in their evidence is minor
and natural. It does not affect the
prosecution case in its entirety. Thus, the
plea advanced on behalf of the defence in
this regard is not acceptable.

38. From the appreciation of above
documentary and oral evidence on record ,
the prosecution has proved that on the
alleged date, time and place of occurrence,
the
accused,
namely,
Ram
Ashish,
Akhilesh, Girjesh, Arvind, Ravindra all
sons of Satyadeo and Ram Kishor formed
an unlawful assembly, armed with deadly
weapons
like
lathi
and
pharsa.
In
pursuance of common object of unlawful
assembly, they committed rioting and
caused simple and grievous injury to
informant Govind. Thus, prosecution has
proved the charge u/s 147, 148, 323/149 &
324/149 I.P.C. beyond all reasonable
doubts.

39. After convicting the accused under
the aforesaid sections, the trial court instead
of sending them to jail to undergo the
sentence, have released them on probation
for a period of two years on furnishing
personal
bond
and
two
sureties
on
condition that they will maintain peace and
they will have good conduct and desist
from committing any crime.

40. Law relating to probation as given
in Section 4 of the Probation of Offenders
Act, 1958 is as follows :

"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 sub-section (1), the court shall take
4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
953
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.

41. A similar provision finds place in
the Code of Criminal Procedure. Section
360 Cr.P.C. provides:

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.
954 INDIAN LAW REPORTS ALLAHABAD SERIES

(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: Provided that the High
Court or Court of Session shall not under
this
sub-
section
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 recognizance, 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
the warrant, and such Court may either
remand him in custody until the case is
heard or admit him to bail with sufficient
surety conditioned on his appearing for
sentence and such 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 1958 ), or 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.

42. These statutory provisions very
emphatically lay down the reformatory and
correctional object of sentencing and
obligates the trial court as well as appellate
courts to give benefit of probation in fit
cases as provided under law. Unfortunately,
this branch of law has not been much
utilized by the courts. It becomes more
relevant and important in our system of
administration of justice where trial is often
concluded after a long time and by the time
decision assumes finality, the very purpose
of sentencing looses its efficacy as with the
passage of time the penological and social
priorities change and there remains no need
to inflict punishment of imprisonment,
particularly when the offence involved is
not serious and there is no criminal
antecedent of the accused persons. The
4 All. Akhilesh Shukla & Ors. Vs. State of U.P.
955
facts and given circumstances in each case,
the nature of the crime, the manner in
which it was planned and committed, the
motive for commission of the crime, the
conduct of the accused, the nature of
weapons used and all other attending
circumstances are relevant facts which
would enter into the area of consideration.
It is, therefore, the duty of every court to
award proper sentence having regard to the
nature of the offence and the manner in
which it was executed or committed.

43. In the case of Subhash Chand
and others vs. State of U.P., 2015 Lawsuit
(Alld) 1343, this court has emphatically
laid down the need to apply the law of
probation and give benefit of the beneficial
legislation
to
accused
persons
in
appropriate
cases.
This
court
issued
following directions to all trial courts and
appellate courts:

"It appears that the aforesaid
beneficial legislation has been lost sight of
and even the Judges have practically
forgotten this provision of law. Thus,
before parting with the case, this Court
feels that I will be failing in discharge of
my duties, if a word of caution is not
written for the trial courts and the appellate
courts. The Registrar General of this Court
is directed to circulate copy of this
Judgment to all the District Judges of U.P.,
who shall in turn ensure circulation of the
copy of this order amongst all the judicial
officers working under him and shall
ensure strict compliance of this Judgment.
The District Judges in the State are also
directed to call for reports every months
from all the courts, i.e. trial courts and
appellate courts dealing with such matters
and to state as to in how many cases the
benefit of the aforesaid provisions have
been granted to the accused. The District
Judges are also directed to monitor such
cases personally in each monthly meeting.
The District Judges concerned shall send
monthly statement to the Registrar General
as to in how many cases the trial
court/appellate court has granted the benefit
of the aforesaid beneficial legislation to the
accused. A copy of this order be placed
before the Registrar General for immediate
compliance."

44. In addition to the above judgment
of this Court, this Court finds that the
Hon'ble Apex Court in the case of State of
Maharashtra
Vs.
Jagmohan
Singh
Kuldip Singh Anand & others (2004) 7
SCC 659, giving the benefit of Probation
of Offenders Act, 1958 to the accused has
observed as below:

"The learned counsel appearing
for the accused submitted that the incident
is of the year 1990. The parties are
educated and neighbors. The learned
counsel, therefore, prayed that benefit of
the Probation of Offenders Act, 1958 may
be granted to the accused. The prayer made
on behalf of the accused seems to be
reasonable. The accident is more than ten
years old. The dispute was between the
neighbors over a trivial issue of claiming of
drainage. The accident took place in a fit of
anger. All the parties educated and also
distantly related. The incident is not such as
to direct the accused to undergo sentence of
imprisonment. In our opinion, it is a fit case
in which the accused should be released on
probation by directing them to execute a
bond of one year for good behaviour."

45. Similarly, in Jagat Pal Singh &
others Vs. State of Haryana, AIR 2000
SC 3622, the Hon'ble Apex Court has given
the benefit of probation while upholding
the conviction of accused persons under
956 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 323, 452, 506 IPC and has
released the accused persons on executing a
bond before the Magistrate for maintaining
good behaviour and peace for the period of
six months.

46. In the light of above discussion, I
find
no
illegality,
irregularity
or
impropriety nor any jurisdictional error in
the impugned judgment and order of the
court below. The conviction recorded by
the court below u/s 147, 148, 323/149 &
324/149 I.P.C. is upheld and is not required
to be disturbed.

47. Since the informant/victim and
accused belong to same village and are
neighbours and accused did not have any
criminal antecedents to their credits, the
incident has taken place in the year 1985
and more than 36 years have passed since
then, there is no ground to interfere in the
probation granted by the trial court to the
accused.

48. In the facts and circumstances of
the case, there is no sufficient ground to
allow the criminal appeal. The criminal
appeal is accordingly, dismissed.

49. Let a copy of the judgement along
with trial court record be sent to the trial
court for execution of the trial court order
which has become final. The appellantsaccused shall appear in the trial court
within two months from the date of
judgement and file requisite probation
bonds and personal bonds accordingly.
----------
(2023) 4 ILRA 956
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1817 of 1995

Phool Chandra ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ajay Singh, Nisha Singh Parihar, Sri R.P.
Parihar

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections
395,
410,
411
&
412
-
Dishonestly receiving stolen property -
The Code of Criminal Procedure, 1973 -
Sections 313, 360 - The Arms Act, 1959 -
Section 25 - The Probation of Offenders
Act, 1958 - Sections 4, 5 - Appeal against
conviction - As per FIR - in the night of
15/16.12.1998, accused persons along
with two or three other persons entered in
house
of
informant
-
The
accused
committed theft of clothes which were
being sold by informant - The informant
lodged F.I.R. - Prosecution examined
P.W.1 to P.W.7 - Held, the arrest of
appellant and recovery of stolen quiltcover, sarees and cloth has been proved
by evidence of P.W.7, who had arrested
the appellant and recovered articles from
his possession - PW.7 proved recovery
memo relating to appellant's arrest and
recovery memo of stolen property - PW.7
also proved articles which have been
recovered from possession of appellant -
P.W.7 has also proved by his evidence the
arrest of appellant who was carrying a bag
containing the articles - P.W.3, informant
has identified the articles as stolen from
his house - In cross-examination of
P.W.3, P.W.5 and P.W.7 nothing emerges
which
may
raise
doubt
about
their
evidence - The evidence of PW.5 has not
been challenged on behalf of appellant in
his cross-examination - The evidence of
PW.5 has been corroborated by evidence
of P.W.7 - The informant was a hawker