# Ali Sher Revisionist v. State of U.P

- **Citation:** (2023) 4 ILRA 156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Criminal Revision No. 338 of 2009
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ali-sher-revisionist-v-state-of-u-p-50084
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 360, 361, 397 & 401
- India Penal Code, 1860 - Sections 326 &
304(2) - India Evidence Act,1872 -
Section 106 - Probation of Offender Act,
1958 - Sections - 4 & 5: : - Criminal Revision
- an FIR u/s 326 of IPC - investigation - chargesheet - conviction & sentenced u/s 326 IPC with
simple imprisonment of 3 year with fine - court
finds that, victim expressed her desire to divorce
her husband and re-marry - and the trial court
found the accused guilty based on the Victim's
testimony and medical evidence - the issues
revolved around the assault on the victim, the
credibility of witnesses, and the applicability of
the Probation of Offenders Act, - accused is not
previously convicted, nor other case apart from
this case, is registered against him - The trial
court while dealing with the sentence did not
discussed why the benefit of Section 4 of
Probation of Offenders Act, 1958 cannot be
given to the accused - hence, The court upheld
the conviction of the accused but, granted the
benefit of section 4 of Probation of offenders
Act, 1958, directing to the accused to appear
before
the
Chief
judicial
Magistrate
for
compliance and payment of compensation -
4 All. Ali Sher Vs. State of U.P.
157
direction issued accordingly. (Para - 26, 28, 29,
30)

Criminal Revision Dismissed. (E-11)

List of Cases cited:

## Text

156 INDIAN LAW REPORTS ALLAHABAD SERIES
age of revisionist, the possibility for his
improvement and passed the judgment
without considering the above mentioned
circumstances.

12. In view of the facts and
circumstances and considering the scope of
Section 4 of the Probation of Offenders
Act, and the time period which has elapsed
since the date of occurrence, the Revision
is according dismissed by upholding the
conviction
of
accused-revisionist.
However, he is granted the benefit of
Section 4 of the Probation of Offenders
Act.

13. Revisionist is directed to appear
before the court concerned and CJM
concerned is directed to extend the benefit
of Section 4 of the Probation of Offenders
Act to the accused-revisionist and release
him on probation on the execution of
personal bond and sureties to the tune of
Rs. 20,000/- (Twenty thousand) along with
undertaking to keep peace and tranquility
in society and not to commit any offence in
future for one year.

14. Accused-revisionist shall appear
before the CJM within a period of one
month from today for compliance of the
present order.

15. As provided under Section 5 of
the Probation of Offenders Act, revisionist
shall pay a compensation of Rs. 15,000/-
(Fifteen thousand) in DLSA within one
month from today.

16. In case of breach of any of the
said condition, the accused-revisionist shall
subject himself to undergo the sentence.

17. Let the copy of the judgment as
well as lower court record be transmitted to
concerned trial forthwith for necessary
compliance.
----------
(2023) 4 ILRA 156
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.04.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Revision No. 338 of 2009

Ali Sher ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Saurabh Srivastava, Abdul Samad

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 360, 361, 397 & 401
- India Penal Code, 1860 - Sections 326 &
304(2) - India Evidence Act,1872 -
Section 106 - Probation of Offender Act,
1958 - Sections - 4 & 5: : - Criminal Revision
- an FIR u/s 326 of IPC - investigation - chargesheet - conviction & sentenced u/s 326 IPC with
simple imprisonment of 3 year with fine - court
finds that, victim expressed her desire to divorce
her husband and re-marry - and the trial court
found the accused guilty based on the Victim's
testimony and medical evidence - the issues
revolved around the assault on the victim, the
credibility of witnesses, and the applicability of
the Probation of Offenders Act, - accused is not
previously convicted, nor other case apart from
this case, is registered against him - The trial
court while dealing with the sentence did not
discussed why the benefit of Section 4 of
Probation of Offenders Act, 1958 cannot be
given to the accused - hence, The court upheld
the conviction of the accused but, granted the
benefit of section 4 of Probation of offenders
Act, 1958, directing to the accused to appear
before
the
Chief
judicial
Magistrate
for
compliance and payment of compensation -
4 All. Ali Sher Vs. State of U.P.
157
direction issued accordingly. (Para - 26, 28, 29,
30)

Criminal Revision Dismissed. (E-11)

List of Cases cited:

1. Mohd. Monir Alam Vs St. of Bihar - (2010) 12
SCC 26),

2. St. of Karnataka Vs Mudappa - 1999 SCC
(CRI) 1028.

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. The present Criminal Revision is
moved by revisionist u/s 397, 401 CrPC
against the judgment and order dated
11.06.2009 passed by Additional Sessions
Judge Barabanki in Criminal Appeal No.5
of 2007 (Ali Sher and others vs State of
U.P.) u/s 326 IPC in Case Crime No.89 of
1998, P.S.- Deeh, District- Raebareli
upholding the conviction of Section 326
IPC for 3 years and fine of Rs. 1000/- each
and in default of payment of fine,
imprisonment for one month passed by the
learned First Judicial Magistrate, Court
No.17, Raebareli on 17.04.2007 in Case
Crime No.1820 of 2006 (State vs Sher Ali
and Others).

2. Wrapping the facts in brief, the
victim was married to the revisionist Ali
Sher son of Mohammad Zama 14 months
ago. Ali Sher was jobless and was doing
nothing for rearing his family, therefore,
the victim complained his husband and
father-in-law that she could not live with
Ali Sher in such circumstances and
expressed her desire to divorce her husband
and remarry another person. When she
expressed such desire, her husband and
father-in-law came in the courtyard in the
night where she was sleeping. Her fatherin-law ride on her stomach and her husband
amputated her nose. When she made hue
and cry, her brother-in-law Mohd. Abbas
came to the scene and saw the incident.

3. On the basis of written report, the
case was registered on 26.07.1998 as Case
Crime No.89 of 1998 u/s 326 IPC and was
investigated by Investigating Officer to
record the statements of witnesses. He
investigated the spot and prepared site plan
and produced the victim/injured before the
Medical Officer and got her medically
examined. Thereafter, he submitted chargesheet u/s 326 IPC.

4. Learned Trial Court framed and
explained charges against the accused who
abjured from the charges and claimed to be
tried.

5. The prosecution in order to prove
their case, adduced PW-1 Mustafa, PW-2
Abbas, PW-3 Zahida Bano and PW-4 Dr.
R.P. Maurya, PW-5 Constable/Moharrir
Subhash Chandra Tiwari.

6. After the conclusion of prosecution
witnesses, statements of accused were
recorded u/s 313 CrPC whereby they
denied the allegation levelled against them
and they refused to adduce any defence,
however, the opportunity was awarded to
them.

7. Learned Trial Court, after the
perusal of record and evidence adduced by
the prosecution, reached to the conclusion
that the medical report is proved by PW-4
Dr. R.P. Maurya and the face of victim was
deformed due to deep cut on nose. The
victim herself appeared as PW-1 and she
corroborated the contents of the FIR, hence
the learned Trial Court convicted both the
accused u/s 326 IPC and sentenced them
with simple imprisonment of 3 years and
fine to the tune of Rs. 1000/- each and with
158 INDIAN LAW REPORTS ALLAHABAD SERIES
additional simple imprisonment of one
month each in default of payment of fine.

8. Aggrieved with the judgment and
order dated 13.04.2017 passed by the
Judicial Magistrate, Court No.17, First
Appeal was filed.

9. First Appellate Court perused the
statements of PW-1 Mustafa, PW-2 Abbas
who were declared hostile during trial. PW-1
Mohd. Mustafa admitted that he accompanied
the injured to the police station. He is also
close relative to Ali Sher and Mohammad
Zama who is uncle and brother of the accused
respectively,
consequently,
he
did
not
corroborate the prosecution version. PW-2
Abbas is the real brother of accused/revisionist
Ali Sher and son of accused/revisionist
Mohammad Zama, who has not supported the
prosecution version and were declared hostile.
It is very natural that he did not corroborate the
testimony of the injured as he is in the blood
relation of the revisionist.

10. PW-4 Dr. R.P. Maurya proved
injury report and found the following
injuries:-

11. (i) cut injury of 2.5 cm X 0.5 cm
X muscle deep in the middle of right side
of nose of the victim/injured the edges of
which were averted.

12. (ii) cut wound of 2 cm X 0.5 cm X
muscle deep in the middle of left side of
nose the edges of which were sharp and
averted and;

13. (iii) cut wound of 5.5 cm long
cutting left nostril, deep into nose and to
the septum of nose.

14. PW-4 Dr. R.P. Maurya opined
that some part of nose was severed from
nose and was not found at the time of
medical
examination.
The
face
was
deformed and all the injuries were caused
by sharp edged weapon and are 12 hours
old. First Appellate Court analyzed the
statement of the victim/injured.

15. Injured Zahida Bano proved the
incident beyond suspicion. First Appellate
Court held that the incident occurred in the
house of the accused, therefore, the burden
of proof u/s 106 of Indian Evidence Act
lies upon the accused to explain how
Zahida Bano sustained such injuries. The
motive is self-evident that victim wanted to
divorce the revisionist Ali Sher and wanted
to remarry another person, therefore, the
accused
deformed
the
face
of
victim/injured so that she may be refrained
from
remarriage.
During
crossexamination, Smt. Zahida Bano admitted
that she knew before marriage that her
husband was physically challenged by right
leg and the family of both the bride and
groom were agreed that both the bride and
groom will get divorced if the bride is not
agree to reside with her husband. Later on,
she expressed her desire to divorce her
husband after 14 month of marriage.

16. Aggrieved with the judgment and
order dated 11.06.2009 passed by Judicial
Magistrate and the order of First Appellate
Court
dated
13.04.2017,
the
present
revision has been filed.

17. Heard learned counsel for the
revisionist Sri Abdul Samad and learned
AGA for the State and perused the record.

18. Learned counsel for the revisionist
submitted that the Trial Court and the First
Appellate Court did not look into the fact
that PW-1 Mustafa and PW-2 Abbas turned
hostile during the trial and injured Zahida
4 All. Ali Sher Vs. State of U.P.
159
Bano admitted in her cross-examination
that she was sleeping inside the house and
closed the main door from inside and
revisionist no.1 was sleeping outside at the
time of occurrence, therefore, it is not
possible that revisionist broke the door
from outside and committed the alleged
offence at 02:00 am in the night.

19. It is also submitted that
occurrence had taken place at 02:00 am on
26.07.1998 which goes to show that Zahida
Bano did not sustain grievous injuries.
Revisionist no.1 is physically handicapped
and Zahida Bano married to revisionist
no.1 having full knowledge that revisionist
no.1 is handicapped before marriage.

20. It is also submitted that Dr. Arun
Kumar Singh performed plastic surgery of
the nose of Zahida Bano at Raj Nursing
Home and she has solemnized second
marriage after getting divorced from Ali
Sher. It is also submitted that there is no
opportunity awarded to revisionist to explain
the circumstances appearing in evidence
against them, therefore, it is prayed to set aside
the judgment and order of conviction passed
by learned First Judicial Magistrate, Court
No.17 on 17.07.2007 and the judgment passed
by Additional Sessions Judge, Raebareli in
Criminal Appeal No.5 of 2007 on 11.06.2009
convicting the revisionist u/s 326. It is also
contented that if learned Trial Court do not
award benefit of Probation of Offenders Act,
1958 to accused, he must mention the reason
of not awarding the benefit of Probation of
Offenders Act, 1958. Learned counsel relied
on Mohd. Monir Alam vs State of Bihar
(2010) 12 Supreme Court Cases 26, Hon'ble
Apex Court held that:

"...His conduct and attainments
after his involvement in the matter justifies
his release on probation..."

21. And Hon'ble Apex Court awarded
the benefit of Section 4 of Probation of
Offenders Act, 1958.

22.

Learned
Counsel
for
the
revisionist relied upon State of Karnataka
vs Mudappa, wherein Hon'ble Supreme
Court considered the question as to whether
the benefit of Probation of Offenders Act,
1958 could be extended to offence u/s
304(2) of IPC and concluded that there is
no statutory bar for the application of
Probation of Offenders Act, 1958 to an
offence
u/s
304(2)
where
maximum
punishment
is
neither
death,
nor
imprisonment for life.

23. During the argument, learned
counsel for the revisionist did not dispute
the conviction of revisionist. Arguing on
the point of sentence, learned counsel
submitted that it was a family dispute and
the incident happened in deep depression of
accused/revisionist Ali Sher when his wife
desired to divorce him and remarry another
person. Learned Trial Court did not explain
why the benefit of Section 4 of Probation
of Offenders Act, 1958 must not be granted
to present revisionist. It is further submitted
that revisionist is not previous convict and
he has no criminal history apart from this
case, therefore, in view of the above facts
and circumstances, learned Trial Court
ought to have invoked the provision of
Probation of Offenders Act, 1958.

24. Per contra, learned AGA
submitted that there is concurrent finding
of both the Courts that revisionist with the
help of his father, chipped off the nose of
victim/injured
deforming
her
face,
however, it was agreed between the parents
of both the sides that the party shall divorce
if the bride is not agree to reside with her
husband after marriage and when she
160 INDIAN LAW REPORTS ALLAHABAD SERIES
expressed her willingness to divorce her
husband, present revisionist chipped off her
nose so as to deform her face.

25. Nothing is on record to show that
the revisionists are falsely implicated in the
case, therefore, from the perusal of the
judgment of both the Courts, it transpires
that the concurrent finding is given by both
the Courts and the revisionists were held
guilty u/s 326 IPC. Court agreed with the
aforesaid finding of the learned Sessions
Judge especially in the opinion of PW-4
Dr. R.P. Maurya.

26. From the perusal of the judgment,
it transpires that learned Trial Court while
dealing with the sentence recorded, did not
discuss why the benefit of Section 4 of
Probation of Offenders Act, 1958 cannot be
given to the accused.

27. It transpires from the finding of
Court that learned Trial Court neither
invoked Probation of Offenders Act, 1958,
nor the provision u/s 360 CrPC while
sentencing the accused revisionist, Trial
Court has not given a specific reason why
the present accused should not be given to
benefit of above mentioned provisions.
Therefore, the judgment and order passed
by learned Trial Court suffers from serious
illegality as the order of learned Trial Court
is violative of provisions under Section 361
CrPC, therefore, the impugned judgment is
liable to be set aside. Section 361 CrPC is
read as under:

"361. Special reasons to be
recorded in certain cases -

Where in any case the Court
should have dealt with

(a) an accused person u/s 307 or
under the Probation of Offenders Act,
1958(20 of 1958), or

(b) A youthful offender under the
Children's Act, 1960(60 of 1960), or
another like for the time being in force for
the treatment, training of Rehabilitation of
youthful offenders, but has not done so, it
shall record in its judgment the special
reasons for not having done so."

28. It is apparent that the accused is
not previously convicted, no other case
apart from this case, is registered against
him. The offence committed in the
desperate state of mind when his wife
desired to divorce him and remarry another
person and to the fact that respondent
Zahida Bano had already remarried another
person, the benefit of Probation of
Offenders Act, 1958 can be extended to the
present revisionist also.

29. In view of the above facts and
circumstances and considering the scope of
Section 4 of Probation of Offenders Act,
1958 and the time which is already lapsed
from the date of occurrence, the revision is
accordingly dismissed by upholding the
conviction of accused/revisionist, however,
he is granted the benefit of Section 4 of
Probation of Offenders Act, 1958.

30. Revisionist is directed to appear
before the Court concerned and Chief
Judicial Magistrate concerned is directed to
extend the benefit of Section 4 of Probation
of
Offenders
Act,
1958
to
the
accused/revisionist and released him on
probation on the execution of personal
bond and sureties to the tune of Rs.20,000/-
along with the undertaking to keep peace
and tranquility in society and not to commit
any offence in future during the period of
one year.

31. Accused/revisionist shall appear
before the CJM within the period one one
4 All. Pawan Singhania Vs. State of U.P. & Anr.
161
month from today for compliance of the
present order. As provided u/s 5 of
Probation
of
Offenders
Act,
1958,
revisionist shall pay a compensation of
Rs.10,000/- which shall be deposited in
District Legal Services Authority, within
one month from today.

32. In case of breach of any said
conditions, the accused/revisionist shall
subject himself to undergo the sentence.

33. Let the copy of this judgment as
well as Lower Court record be transmitted
to the concerned Trial Court forthwith for
necessary compliance.
----------
(2023) 4 ILRA 161
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Revision No. 1848 of 2010

Pawan Singhania ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri A.P. Tewari, Sri S.S. Tripathi, Sri
Sudhanshu Pandey

Counsel for the Opposite Parties:
G.A., Sri B.K. Tripathi

Criminal Law - Criminal Procedure Code,
1973 - Sections 145 & 146(1) - Criminal
Revision - - Civil Suit - Right to possession -
revisionist challenged the order passed by
Additional Sessions Judge in Criminal Revision
filed by opposite party no. 2 by which Revisional
court set aside the order passed by the City
Magistrate, U/s 145 & 146(1) Cr.P.C. merely on
the
ground
that
civil
suit,
which
was
subsequently filed, is pending between the
parties - There is apprehension that civil suit is
pending
between
parties
and
they
can
adjudicate their rights through civil court - ,
there is no purpose for proceeding under
Section 145 Cr.P.C. - Apex Court clearly held
that, proceeding u/s 145 of Cr.P.C. cannot be
dropped merely on the ground that one party
had approached civil court not with regard to
title or right to possession therefore in view of
law and fact, the impugned order passed by the
Additional Sessions Judge, in Criminal Revision
is absolutely erroneous and passed on nonapplication of mind - hence, impugned order is
liable to be quashed and it is accordingly
quashed - The matter is remanded back and the
City Magistrate is directed to conclude the
proceeding, preferably within a period of six
months - directions issued accordingly. (Para -
5, 7)

Criminal Revision is disposed of. (E-11)

List of Cases cited:

1. Prakash Chand Sachdeva Vs St. & anr. reported in
AIR 1994 SC 1436

2. Amresh Tiwari Vs Lalta Prasad Dubey & ors. (AIR
2000 Supreme court 1504),

3. Jhummamal @ Devandas Vs St. of M. P. reported
in, (AIR 1988 SC 1973),

4. Ganga Bux Singh Vs Sukhdin, AIR 1959 All 141

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Sudhanshu Pandey,
learned counsel for the revisionist and Sri
Hari Pratap Gupta, learned AGA for the
State.

2. By means of present revision, the
revisionist has challenged the order dated
28.04.2010 passed by the Additional
Sessions Judge/Court No.10, Gorakhpur in
Criminal
Revision
No.217
of
2010