# Jameek v. State of U.P

- **Citation:** (2021) 8 ILRA 776
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-03
- **Case number:** Criminal Appeal No 113 of 2000
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jameek-v-state-of-u-p-47308
- **Pages:** 5

## Headnote

Indian Penal Code (45 of 1860)- Sections
452 & 354 - House trespass and outraging
modesty
of
woman
-
Probation
of
Offenders Act (20 of 1958) , Section 4 -
Section 4 is applicable where a person is
found guilty of committing an offence
which is not punishable with death or
imprisonment for life - Court may release
such an accused on probation of good
conduct on his furnishing a bond - Court in
applying this provisions is required to
consider the circumstances of the case,
8 All. Jameek Vs. State of U.P.
777
character of the offender and nature of
the offence before exercising its discretion
- S. 4 does not create any distinction
between the category of offenders and the
provision of the said Section can be made
applicable in any case where the offender
is found guilty for committing an offence
(Para 15,16)

Accused armed with banka, came to house of
victim and wanted to molest and assault her to
outrage her modesty, but she raised alarm,
whereupon her nephew, husband and elder
brother came on spot, after which accused
abducted her four months old daughter -
instant
case
was
registered
against
the
appellant about 28 years back and conviction
was awarded on 21.01.2000 - conviction against
the appellant neither involved life sentence nor
punishable more than seven years imprisonment
- out of 3 months awarded sentence applicant
remain in detention of jail about 12 days - this is
the first offence against the appellant- Benefit of
S.4 of Probation of Offenders Act, 1958 granted
(Para 17, 18)

Allowed (E-4)

List of Cases cited:

## Text

776 INDIAN LAW REPORTS ALLAHABAD SERIES

The Hon'ble Apex Court in the
case of Bishan Singh and Ors vs. State,
AIR 2008 SC 131 has held as under:

"Before an accused can be held
to be guilty under Section 308 IPC, it was
necessary to arrive at a finding that the
ingredients
thereof,
namely,
requisite
intention or knowledge was existing. There
cannot be any doubt whatsoever that such
an intention or knowledge on the part of
the accused to cause culpable homicide is
required to be proved. Six persons
allegedly accosted the injured. They had
previous enmity. Although over-act had
been attributed against each of the accused
who were having lahtis, only seven injuries
had been caused and out of them only one
of them was grievous, being a fracture of
the arm, which was not the vital part of the
body.

The accused, therefore, in our
opinion, could not be said to have
committed any offence under Section 308
IPC. The same would fall under Sections
323 and 325 thereof."

10. In view of the above, considering
the entire material on record in this case, in
the opinion of this Court, no offence under
Section 308 IPC is made out, and the
appellants-accused are liable to be held
guilty for offence under Sections 147, 323/
149 and 325/ 149 IPC and conviction of the
appellants-accused is modified accordingly.

11. Considering the nature of the
offence, the number of injuries and its
nature
and
all
other
attending
circumstances, it will be just and proper to
sentence the accused-appellants to undergo
imprisonment for one year each under
Section 147 IPC, imprisonment of one year
each under Section 323/149 IPC and
imprisonment of one year and fine of Rs.
10,000/- each under Section 325/149 IPC.
In default of payment of fine, each accused
will
serve
three
months
simple
imprisonment. All the sentences shall run
concurrently. If the fine is deposited, the
victim Sri Ram Pandey will get half of it.

12. The appeal stands partly allowed,
accordingly.

13. Lower court record along with
copy of the judgment be transmitted to the
trial court immediately.
----------
(2021)08ILR A776
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.08.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No 113 of 2000

Jameek ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
R.P. Shukla, R.N. Shukla, Rakesh Kumar
Yadav, Vashu Deo Mishra

Counsel for the Opposite Party:
Govt. Advocate

Indian Penal Code (45 of 1860)- Sections
452 & 354 - House trespass and outraging
modesty
of
woman
-
Probation
of
Offenders Act (20 of 1958) , Section 4 -
Section 4 is applicable where a person is
found guilty of committing an offence
which is not punishable with death or
imprisonment for life - Court may release
such an accused on probation of good
conduct on his furnishing a bond - Court in
applying this provisions is required to
consider the circumstances of the case,
8 All. Jameek Vs. State of U.P.
777
character of the offender and nature of
the offence before exercising its discretion
- S. 4 does not create any distinction
between the category of offenders and the
provision of the said Section can be made
applicable in any case where the offender
is found guilty for committing an offence
(Para 15,16)

Accused armed with banka, came to house of
victim and wanted to molest and assault her to
outrage her modesty, but she raised alarm,
whereupon her nephew, husband and elder
brother came on spot, after which accused
abducted her four months old daughter -
instant
case
was
registered
against
the
appellant about 28 years back and conviction
was awarded on 21.01.2000 - conviction against
the appellant neither involved life sentence nor
punishable more than seven years imprisonment
- out of 3 months awarded sentence applicant
remain in detention of jail about 12 days - this is
the first offence against the appellant- Benefit of
S.4 of Probation of Offenders Act, 1958 granted
(Para 17, 18)

Allowed (E-4)

List of Cases cited:

1. Smt. Devki Vs St. of Har 1979(3) SCC 760

2. St. of Maha Vs Natwar Lal Damodar Das Soni
1980 (4) SCC 669

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

1. The present appeal has been
preferred against the judgement and order
dated 21.01.2000 passed by 1st A.S.J.,
Lucknow in S.T. No.324 of 1995 whereby
the appellant has been convicted and
sentenced under Sections 452 and 354 IPC
for three months rigorous imprisonment
respectively.

2. Brief facts of the case are that the
case emerged from the F.I.R. lodged by
PW-1 Saiyra Bano stating that Mohd.
Khalil, husband of first informant along
with Smt. Saiyra Bano, PW-1 was present
at his house situated in Village Khojey
Kapurwa, P.S. Gudamba on 12.09.1993 in
the morning, when the accused-appellant,
Jameel of the same village armed with
country made pistol entered into the house
and started to quarrel with the husband of
the first informant. When PW-1 objected to
it and hearing noise, other members of the
family rushed to the spot whereupon the
accused fled away. PW-4, Mohd. Khalil
made a complaint of this case against the
appellant, Jameel and thereafter he went to
work somewhere. It is the appellant who
after sometime on the same day came back
to the house of PW-1 armed with Banka
and wanted to molest and assault the victim
to outrage her modesty but she raised
alarm, whereupon her nephew, husband
and elder brother came on the spot. Seeing
them, the accused abducted four months
old daughter of Smt. Bano.

3. On this allegation, Smt. Bano
lodged a written report as Ex-ka-1 at Police
Station- Gudamba, District- Lucknow on
12.09.1993 at 8:15 pm where chik report as
Ex-ka-2 was prepared on its basis and the
case was registered in G.D. as Ex-ka-3
under Sections 452, 354, 364, 506 IPC as
Case Crime No. 259 of 1993. This case
entrusted to PW-6, Ram Narain Chaubey
who investigated this case and during
investigation,
he
visited
place
of
occurrence and prepared a site plan as ExKa-4. On the same date, he recorded the
statement of Smt. Saiyra Bano, Rafiq
Mohd., Safiq Mohd., Mohd. Khalil and
other witnesses under Section 161 Cr.P.C.
and arrested the accused on 14.09.1993 on
Kursi Road and recovered from his
possession of female child. Thereafter, the
investigating officer prepared recovery
memo as Ex-Ka-5 and in presence of the
778 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses, he also prepared the site plan of
the recovery as Ex-Ka-6. The recovery of
the female child was handed over in the
custody of PW-1 through memo as Ex-Ka7 and after completing the investigation,
the charge-sheet as Ex-Ka-8 was submitted
by the Investigating officer under Sections
452, 354, 364, 506 IPC against the
accused-appellant.

4. Charge-sheet was submitted before
the Magistrate Court and the case was
committed to the 1st A.S.J., Lucknow
where it is registered as S.T. No.324 of
1995. After committal, the trial court
framed charges
against the accusedappellant under Sections 452, 354, 364, 506
IPC. The accused-appellant denied the
charges levelled against him and claimed to
be tried.

5. In order to substantiate its case, the
prosecution examined six witnesses namely
PW-1, Smt. Saiyra Bano first informant of
the alleged incident, PW-2 Rafiq Mohd.
who reported himself as eye witness, PW-3
Safiq Mohd. who was also another eyewitness, PW-4 Khalil Mohd. husband of
PW-1 was also eye-witness, PW-5 Babulal
Maurya, Head Constable who took the chik
report as Ex-Ka-2 and PW-6 Ram Narain
Chaubey, Investigating Officer. Thus, the
prosecution relied on the oral testimony of
PW-1 to PW-6 and Ex-Ka-1 to Ex-Ka-7 as
documentary evidence.

6. After closing the evidence,
statement of the accused under Section 313
Cr.P.C. was recorded by the trail court
explaining the entire evidence and other
circumstances, in which the appellant
denied the prosecution story in toto and the
entire prosecution story was said to be
wrong and concocted. In answer to the
question no.6, he stated that PW-1 Smt.
Saiyra Bano was his wife and the female
child alleged to have been kidnapped by
him was born to Smt. Saiyra Bano with his
union. After birth of this baby, Smt. Bano
started to live with her former husband and
thereafter, there was a dispute between her
and him over this baby. He further stated
that the female child was living with him
and subsequently she died.

7. In his defence, four defence
witnesses who were also examined on
behalf of the accused-appellant as DW-1
Mohd. Jaleel, DW-2 Munna, DW-3 Idris
and DW-4 Shakeel Ahmad.

8. The trial court after hearing learned
counsel
for
both
the
parties
and
appreciating the entire evidence oral as
well as documentary found the accusedappellant
guilty
and
convicted
and
sentenced him as aforesaid.

9. Feeling aggrieved and dissatisfied
with the impugned judgement and order of
conviction,
the
accused-appellant
has
preferred the present appeal.

10. I have heard learned counsel for
both the parties and perused the material
available on record.

11. Learned counsel for the accusedappellant assailing the verdict of conviction
against the accused-appellant submits that
PW-1 Smt. Bano solemnized marriage with
the accused-appellant on the date of
occurrence and she is legally wedded wife
of the accused-appellant but she was
wedding with Mohd. Khalil and the
daughter was born with the union of the
appellant. Learned counsel further submits
that learned trial court on the basis of
evidence, acquitted the appellant from
charge under Sections 364, 506 IPC and as
8 All. Jameek Vs. State of U.P.
779
such, the trial court has committed error in
holding that the committed hostage and
assault on PW-1 Bano to outrage her
modesty.

12. During the course of argument,
learned AGA states that it is the Court who
may consider the benefit of Section 4 of the
Probation of Offenders Act, 1958 to the
accused-appellant and further submits that
this is the first case against the accusedappellant. Previously, he is not convicted for
any offence. Learned AGA further states that
the benefit of Section 4 of the Probation of
Offenders Act, 1958 could be extended to the
accused-appellant on certain stipulations as
specified in Section 4 of the Probation of
Offenders Act, 1958.

13. The relevant provisions of the
Probation of Offenders Act, 1958, viz.
Section 3 and 4 are extracted hereunder:-

3. Power of court to release
certain offenders after admonition.- "Where
any person is found guilty of having
committed an offence punishable under
Section 379 or Section 380 or Section 381 or
Section 404 or Section 420 of the Indian
Penal Code, (45 of 1860) or any offence
punishable with imprisonment for not more
than two years, or with fine, or with both,
under the Indian Penal code, or any other
law, and no previous conviction is proved
against him and the Court by which the
person is found guilty is of opinion that,
having regard to the circumstances of the
case including the nature of the offence, and
the character of the offender, it is expedient
so to do, then, notwithstanding anything
contained in any other law for the time being
in force, the Court may, instead of sentencing
him to any punishment or releasing him on
probation of good conduct under section 4
release him after due admonition.

Explanation.-For the purposes of
this Section, previous conviction against a
person shall include any previous order
made against him under this Section or
Section 4.

4. Power of Court to release
certain offenders on probation of good
conduct.- (1) When any person is found
guilty of having committed an offence not
punishable with death or imprisonment for
life and the Court by which the person is
found guilty is of opinion that, having
regard to the circumstances of the case
including the nature of the offence and the
character of the offender, it is expedient to
release him on probation of good conduct,
then, notwithstanding anything contained
in any other law for the time being in force,
the court may, instead of sentencing him at
once to any punishment direct that he be
released on his entering into a bond, with
or without sureties, to appear and receive
sentence when called upon during such
period, not exceeding three years, as the
Court may direct, and in the meantime to
keep the peace and be of good behaviour:

Provided that the Court shall not
direct such release of an offender unless it is
satisfied that the offender or his surety, if any,
has a fixed place of abode or regular
occupation in the place over which the Court
exercises jurisdiction or in which the offender
is likely to live during the period for which he
enters into the bond."

15. Section 4 of the Probation of
Offenders Act, 1958 is applicable where a
person is found guilty of committing an
offence where punishment is neither life
sentence nor death. The Court may release
such an accused on probation of good
conduct on his furnishing a bond as
mentioned in the Section. The Court in
780 INDIAN LAW REPORTS ALLAHABAD SERIES
applying the provisions of this Section is also
required to consider the circumstances of the
case, character of the offender and nature of
the offence before exercising its discretion.

16. A perusal of the aforesaid provisions
of the Probation of Offenders Act, 1958 thus
clearly indicate that Section 4 of the 1958 Act
does not create any distinction between the
category of offenders and the provision of the
said Section can be made applicable in any case
where the offender is found guilty for
committing an offence which is not punishable
with death or imprisonment for life. Incidentally
certain exceptions have been indicated by the
Hon'ble Supreme Court as in the case of Smt.
Devki Versus State of Harayana reported in
1979, (3) SCC 760 where the Hon'ble Supreme
Court has held that benefit of Section 4 of 1958
Act could not be extended to a culprit who was
found guilty of abducting a teenaged girl and
forcing her to sexual submission with criminal
motive. Similarly in the case reported in 1980
(4) SCC 669 in Re: State of Maharashtra
Versus Natwar Lal Damodar Das Soni the
Hon'ble Supreme Court declined to extend the
benefit of the Probation of Offenders Act, 1958
to an accused found guilty of gold smuggling.

17. Considering the above submissions
advanced on behalf of the appellant, the instant
case was registered against the appellant about
28 years back and conviction was awarded on
21.01.2000.
The
conviction
against
the
appellant neither involved life sentence nor
punishable
more
than
seven
years
imprisonment and it is also submitted that out
of 3 months awarded sentence he remain in
detention of jail about 12 days. It is also stated
that this is the first offence against the appellant.
Further submission is that there are several
contradictions and exaggeration made in the
statement of the witnesses examined before the
trial court. It is also submitted that there is no
minimum sentence under Section 452, 354 IPC.
So in the opinion of this Court, it would be
appropriate to grant the benefit of Section 4 of
the Probation of Offenders Act, 1958 to the
accused-appellant.

18. Consequently, the instant appeal is
partly allowed only on point of sentence
instead sending him in jail. The accusedappellant shall get the benefit of Section 4 of the
Probation of Offenders Act, 1958.

19. The accused-appellant is hereby
directed to file a bond to the tune of Rs.20,000/-
to the effect that he shall not commit any
offence and shall maintain good behaviour and
peace. If there is breach of any of the condition,
he will undergo sentence as indicated by the
trial court. The bond aforesaid be filed by the
accused appellant within one month from the
date of judgement. Since the appellant is on
bail, so he need not surrender. Thus, the appeal
is dismissed on point of conviction but partly
allowed on point of sentence as aforesaid.

20. Office is directed to communicate this
order to the learned trial court for necessary
compliance.

21. Lower court record, if any, shall also
be sent back to the district court concerned.
----------
(2021)08ILR A780
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.07.2021

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No 242 of 2002

Devi Harijan & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants: