# Khandar Singh & Ors v. State of U.P

- **Citation:** (2023) 3 ILRA 1188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-01
- **Case number:** Criminal Appeal No. 1109 of 1988
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khandar-singh-ors-v-state-of-u-p-49908
- **Pages:** 12

## Headnote

A. Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323/149, 324/149 & 325/149
- Appeal Against conviction under of IPC-
appellants inflicted injuries by lathi, bulli,
tabal
and
garasa-
Section
324
IPC-
Voluntary
causing
hurt
by
dangerous
weapons or means- Fracture of bone- not
necessary that bone should be cut through
and through- cutting, splintering, rupture or
fissure in bone is sufficient- injury inflicted
by the appellants on the victims proved-
conviction by trial court upheld. (Paras 19,
20, 21, 22, 32, 40)

HELD: In Hori Lal & anr. Vs St. of U.P., (1970) 1
SCC 8 the Apex Court has held that for the
application of clause 7 of Section 325 it is not
necessary that a bone should be cut through
and through or that the crack must extend from
the outer to the inner surface or that there
should be displacement of any fragment of the
bone. If there is a brake by a cutting or
splintering of the bone or there is a rupture or
fissure in it, it would amount to fracture within
the meaning of Clause 7 of Section 320 I.P.C.
(Para22)

B. Benefit of Probation of Offenders Act,
1958-
Section
4-
Code
of
Criminal
Procedure- Section 360- 40 years since
the date of incident- appellants and
informant are living in peace together- no
criminal
history-
reformatory
and
correctional object of sentencing- trial and
appellate
courts
to
give
benefit
of
probation in fit cases- appellants released
on probation under supervision of the trial
court for one year- compensation of Rs.
5,000 awarded- Appeal partly allowed.
(Paras 36 to 39, 40and 41)

HELD:
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 14 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 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. (Para 36)
3 All. Khandar Singh & Ors. Vs. State of U.P.
1189
Appeal partly allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,957 of 40,518. This is a partial read: ask again with offset=39957 for what follows._

1188 INDIAN LAW REPORTS ALLAHABAD SERIES
hereinbefore, with reference to the recitals
carried in the registered agreement to sell.
Any explanation, therefore, based upon
ceasure of the tenants' liability to pay rent
or to comply with the terms of Order XV
Rule 5 of the Code cannot be accepted.

18. In the considered opinion of this
Court, there is no force in this revision. It
fails and is, accordingly, dismissed.
----------
(2023) 3 ILRA 1188
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.03.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1109 of 1988

Khandar Singh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Shashank Shekhar, Sri Deepak Rana

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Indian Penal Code, 1860 -
Sections 147, 323/149, 324/149 & 325/149
- Appeal Against conviction under of IPC-
appellants inflicted injuries by lathi, bulli,
tabal
and
garasa-
Section
324
IPC-
Voluntary
causing
hurt
by
dangerous
weapons or means- Fracture of bone- not
necessary that bone should be cut through
and through- cutting, splintering, rupture or
fissure in bone is sufficient- injury inflicted
by the appellants on the victims proved-
conviction by trial court upheld. (Paras 19,
20, 21, 22, 32, 40)

HELD: In Hori Lal & anr. Vs St. of U.P., (1970) 1
SCC 8 the Apex Court has held that for the
application of clause 7 of Section 325 it is not
necessary that a bone should be cut through
and through or that the crack must extend from
the outer to the inner surface or that there
should be displacement of any fragment of the
bone. If there is a brake by a cutting or
splintering of the bone or there is a rupture or
fissure in it, it would amount to fracture within
the meaning of Clause 7 of Section 320 I.P.C.
(Para22)

B. Benefit of Probation of Offenders Act,
1958-
Section
4-
Code
of
Criminal
Procedure- Section 360- 40 years since
the date of incident- appellants and
informant are living in peace together- no
criminal
history-
reformatory
and
correctional object of sentencing- trial and
appellate
courts
to
give
benefit
of
probation in fit cases- appellants released
on probation under supervision of the trial
court for one year- compensation of Rs.
5,000 awarded- Appeal partly allowed.
(Paras 36 to 39, 40and 41)

HELD:
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 14 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 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. (Para 36)
3 All. Khandar Singh & Ors. Vs. State of U.P.
1189
Appeal partly allowed. (E-14)

List of Cases cited:

1. Hori Lal & anr. Vs St. of U.P., (1970) 1 SCC 8

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

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

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

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

1. Heard Sri Deepak Rana, learned
counsel for the appellants and Sri Sunil
Kumar Tripathi, learned A.G.A. for the State.

2. This criminal appeal has been filed
against the judgement and order dated
26.04.1988 passed by VIth Additional
District and Sessions Judge, Ghaziabad, in
Sessions Trial No. 94 of 1986, State of U.P.
Vs. Khandar Singh and others, arising out of
Case Crime No. 19A of 1982, under Sections
147, 323, 324, 325, Police Station- Babugarh,
District- Ghaziabad.

3. By the impugned order, the
appellants Khandar Singh, Bir Singh, Sukhbir
Singh, Rishi Pal Singh, Shri Pal Singh and
Smt. Phoolwati were convicted under
Sections 147, 323/149, 324/149 and 325/149
IPC and sentenced under Section 147 IPC for
one year's rigorous imprisonment, under
Section 325/149 IPC for two years' rigorous
imprisonment and Rs. 2000/- as fine, in
default of payment of fine six months'
rigorous
imprisonment,
under
Section
324/149 one year's rigorous imprisonment
and under Section 323/149 three months'
rigorous imprisonment. The period of
sentence
in
each
sections
will
run
concurrently.

4. During pendency of appeal accused
Khandar Singh, Rishi Pal Singh and Smt.
Phoolwati died and appeal qua them has
been abated. This criminal appeal is being
disposed of only against accused-appellants
Bir Singh, Sukhvir Singh and Shri Pal
Singh.

5. The prosecution case in brief is that
informant Kartar Singh son of Dev Raj
Singh resident of village Dadayara, Police
Station
Babugarh,
District
Ghaziabad
submitted written report (Exhibit Ka-1) to
the effect that on 19.01.1982 between 8 and
9 a.m., accused-appellants Khandar Singh
son of Nathu Singh, Bir Singh, Sukhbir
Singh, Rishi Pal Singh, Shri Pal Singh, all
sons of Khandar Singh and Smt. Phoolwati
wife of Khandar Singh assaulted Janam
Singh son of Bhulwa, Manveer son of
Janam Singh, Lakhpat son of Umrao, Devi
Sharan, Sardar Singh and Kartar Singh all
sons of Dev Raj, with lathi, Bulli, Tabal
and
Garasa
due
to
dispute
about
agricultural land. The witnesses Shyam
Singh son of Deeva, Netra Pal son of Kale,
Hoshiyaar Singh son of Sallarh, Ramvilas
son of Arjun, Har Narayana son of Inder,
who were present on the spot, protected the
injured from being assaulted. On the basis
of written report of Kartar Singh, Case
Crime No. 19-A of 1982 under Sections
147, 323/149, 324/149 and 325/149 IPC
was registered on 19.01.1982 at 10.50 p.m.
The Chik FIR (Exhibit Ka-11) and G.D.
relating to institution of the criminal case
are on record. The medical examination of
injured Kartar Singh, Sardar Singh, Lalloo,
Janam Singh and Manveer Singh was done
at PHC Hapur. Their injury reports are
Ext.Ka 5, Ext.Ka 6, Ext.Ka 7, Ext.Ka 8,
Ext.Ka 9, respectively. The injuries were
found on various parts of their body. The xray of injured Kartar Singh, Sardar Singh,
Janam Singh and Laloo was done at MMG
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
Hospital Ghaziabad by Dr. Gyanendra
Kumar, Radiologist. He prepared x-ray
report of the injured. According to X-ray
report of Sardar Singh, Ext.Ka 2, fracture
in acromion process of scapula was seen.
According to x-ray report of Janam Singh
Ext.Ka 3, fracture in his nasal bone was
found and according to x-ray report of
Lallu, Ext.Ka 4, fracture in shaft of ulna
bone was seen. The fractures were found in
the body of injured Sardar Singh, Janam
Singh and Lallu. Section 325 was added
with the Case Crime No. 19A of 1982.

6. The investigation was done by the
Sub-Inspector Hardwari Lal and later on by
the Sub-Inspector Gajraj Singh. The Subinspector Hardwari Lal visited the place of
occurrence and prepared the site plan,
Ext.Ka 10. Subsequently, the Sub-Inspector
Gajraj Singh recorded the statement of
witnesses and after investigation filed
charge-sheet under Sections 147, 323/149,
324/149 and 325/149 IPC against the
accused appellants Khandar Singh, Bir
Singh, Sukhbir Singh, Rishi Pal Singh, Shri
Pal Singh and Smt. Phoolwati.

7. On the criminal case being
committed by Judicial Magistrate-I, Hapur,
the Sessions Court framed charge under
Sections
147,
323/149,
324/149
and
325/149 against the accused Khandar
Singh, Bir Singh, Sukhbir Singh, Rishi Pal
Singh, Shri Pal Singh and Smt. Phoolwati.
The accused-appellants denied the charge
and claimed trial.

8. To prove the charge, the
prosecution examined PW-1 Janam Singh,
PW-2 Kartar Singh and PW-3 Shyam
Singh
as
witnesses
of
facts.
The
prosecution
also
examined
formal
witnesses PW-4 Dr. Gyanendra Kumar,
Radiologist, PW-5 Dr. K.P. Sarabhai,
Investigating Officers PW-6 Sub-Inspector
Haridwari Lal and PW-7 Gajraj Singh.

9. PW-1 Janam Singh, PW-2 Kartar
Singh and PW-3 Shyam Singh gave
evidence about the occurrence.

10. PW-4 Dr. Gyanendra Kumar
Radiologist proved x-ray report of injured
Sardar Singh, Janam Singh and Lallu,
Exhibit Ka-2, Exhibit Ka-3 and Exhibit Ka4, respectively.

11. Dr. K.P. Sarabhai proved injury
reports of Kartar Singh, Sardar Singh,
Lallu, Janam Singh and Manveer Singh
which are Ext.Ka.5, Ext.Ka-6, Ext.Ka.-7,
Ext.Ka-8 and Ext.Ka-9, respectively. He
has also proved the injury reports of
Khandar Singh, Ext.Kha-1, Smt. Phoolwati
Ext.Kha-2, Sukhvir Singh Ext.Kha-3, Bir
Singh Ext. Kha-4 and Rishi Pal, Ext.Kha-5.
P.W.-5, Dr. K.P. Sarabhai stated that the
injuries received by persons on the side of
informant and accused persons could be
caused on 19.1.1982 at about 8-9 p.m. by
lathi, bulli, Tabbal and Garasa.

12. PW-6 also proves the site plan
relating to cross case, S.T. No. 66 of 1986 (
State Vs. Lakhpat and others).

13. The Sub-Inspector Gajraj Singh
gave evidence about the investigation done
by him. He proved charge-sheet filed
against accused appellants Khandar Singh,
Bir Singh, Sukhbir Singh, Rishi Pal Singh,
Shri Pal Singh and Smt. Phoolwati. He also
proved charge-sheet relating to cross case,
S.T. No. 66 of 1986, Ext.Ka-7 and stated
that the cross case was also related to
cognizable offence.

14. The court recorded statement
under Section 313 CrPC of accused
3 All. Khandar Singh & Ors. Vs. State of U.P.
1191
appellants Khandar Singh, Bir Singh,
Sukhbir Singh, Rishi Pal Singh, Shri Pal
Singh and Smt. Phoolwati. They denied the
prosecution case. They also denied that the
informants have not caused any injury.
They also stated that false FIR and x-ray
report was prepared by the informant. They
also submitted that false charge-sheet was
filed against them.

15. The appellants accused also stated
that they were constructing house situated
at old Abadi. The informant and his
persons came there and assaulted them and
registered false case against them.

16. It has been submitted by the
learned counsel for the appellant that the
Trial Court has convicted the appellants
against the weight of evidence on record. It
is further submitted that conviction of the
appellants are bad in eye of law. It has also
been submitted that the sentences awarded
to the appellants are too severe. It has been
prayed that the appeal may be allowed and
the judgement and order dated 26.04.1988
be set aside and they may be acquitted of
the offences.

17. Per contra, learned A.G.A. for the
State has supported the Trial Court's
judgement and order and submitted that the
Trial Court has passed the impugned
judgement
and
order
after
proper
appreciation of the facts witnesses on
record as well as the law applicable and
that there is no scope for interference in the
impugned judgement and order.

18. Heard learned counsel for the
appellants, learned A.G.A. and perused the
material available on record.

19. The definition of Section 324
I.P.C. is as follows:

324. Voluntarily causing hurt by
dangerous weapons or means.--Whoever,
except in the case provided for by section
334, voluntarily causes hurt by means of any
instrument for shooting, stabbing or cutting,
or any instrument which, used as weapon of
offence, is likely to cause death, or by means
of fire or any heated substance, or by means
of any poison or any corrosive substance, or
by means of any explosive substance or by
means of any substance which it is
deleterious to the human body to inhale, to
swallow, or to receive into the blood, or by
means of any animal, shall be punished with
imprisonment of either description for a term
which may extend to three years, or with fine,
or with both.

In order to sustain a conviction
under this Section prosecution has to prove
that the accused voluntarily caused hurt and
that such hurt was caused by means of an
instrument referred to in the section.
Nothing short of that will suffice.

20. In Mukati Prasad Rai @ Mikti
Rai and others vs. State of Bihar, (2004)
13 SCC 144 the Apex Court has upheld the
conviction under Section 324 I.P.C. for
injuries caused by Lathi.

21 . The offence punishable under
Section 325 I.P.C. has been defined under
Section 320 I.P.C. Section 320 I.P.C. reads
as follows:

320.
Grievous
hurt.--The
following kinds of hurt only are designated
as "grievous":--

First -- Emasculation.

Secondly --Permanent privation
of the sight of either eye.

Thirdly -- Permanent privation of
the hearing of either ear,
1192 INDIAN LAW REPORTS ALLAHABAD SERIES

Fourthly
--Privation
of
any
member or joint.

Fifthly
--
Destruction
or
permanent impairing of the powers of any
member or joint.

Sixthly
--
Permanent
disfiguration of the head or face.

Seventhly
--Fracture
or
dislocation of a bone or tooth.

Eighthly
--Any
hurt
which
endangers life or which causes the sufferer
to be during the space of twenty days in
severe bodily pain, or unable to follow his
ordinary pursuits.

A person cannot be said to have
caused grievous hurt unless the hurt caused is
one of the kinds of hurts specified under
Section 320 I.P.C. It is the duty of the Court to
give a finding of his own whether the hurt was
simple or grievous. The Doctor has to describe
the facts in respect of nature of injuries and the
Court is to decide whether the nature of the
injury described by the Doctor comes within
any of the clauses of Section 320 I.P.C.

22. In Hori Lal and another vs. State
of U.P., (1970) 1 SCC 8 the Apex Court has
held that for the application of clause 7 of
Section 325 it is not necessary that a bone
should be cut through and through or that the
crack must extend from the outer to the inner
surface or that there should be displacement of
any fragment of the bone. If there is a brake by
a cutting or splintering of the bone or there is a
rupture or fissure in it, it would amount to
fracture within the meaning of Clause 7 of
Section 320 I.P.C.

23. In the light of the aforesaid
provisions relating to Sections 324 and 325
I.P.C., the evidence of witnesses of facts is to
be examined.

24. P.W.-1, injured Janam Singh has
stated in his evidence dated 22.04.1987 that
the incident took place about five years three
months ago. It was about 8 to 9 o'clock
morning. Janam Singh and his companions
were on their land having Khasra No. 123.
Besides Janam Singh, Kartar Singh, Lakhpat,
Devi Singh, Sardar Singh, Manveer Singh
and Lalloo were also present there. Rishipal,
Veer Singh, Sukhveer and Shripal came
there. Rishipal had Tabbal, Veer Singh spade
(Ganasa) and Sukhveer Singh had Budi.
Remaining accused had Lathi. Phoolwati
wife of Khadadar Singh was also present
there having a Danda in her hand. These
accused wanted to capture the house of the
informant. The accused persons attacked on
the informant and his companions with
Ganasa, Tabbal, Budi and Lathi. PW-1,
Janam Singh, Sardar Singh, Kartar Singh,
Lallu and Manveer Singh received injuries in
the occurrence. The incident was seen by
Shyama, Netrapal, Harnarayan and Rambilas
etc. who saved the injured. The injured and
persons of his side snatched the weapon of
the
accused-appellant
and
defended
themselves. The case of the land, in which
the
accused
persons
wanted
to
take
possession, is pending in the Court of District
Judge. Informant and his side has won the
case in the Court of Hapur. The witness
Hoshiyar has died. In the occurrence, there
was fracture in the upper forearm of Lallu.
P.W.-1 Janam Singh received fracture in the
bone of the nose. Five other injured persons
on the side of the informant had also received
injuries and were examined in the District
Hospital. Due to the injuries received in the
occurrence there was fracture on the head of
Sardar Singh. PW-1, Janam Singh has stated
in his cross examination that his house is
situated about 10-15 Gaj distance from his
house.

25. P.W.-2, the informant/injured
Kartar Singh has stated in his evidence
dated 27.04.1987 that about five years three
3 All. Khandar Singh & Ors. Vs. State of U.P.
1193
months ago between 8 am to 9 am,
informant and his companions Lakhpat,
Devi Singh, Janam Singh, Manveer, Sardar
Singh and Lallu were at their house situated
at Khasra No. 123. Suddenly, Veer Singh,
Rishipal, Sukhveer Singh, Shreepal Singh,
Smt. Phoolwati came there holding Ganasa,
Burari, Tabbal and Lathi in their hands.
They started beating the informant and his
companions. Kartar Singh, Janam Singh,
Lallu Singh, Sardar Singh and Devi Singh
sustained injuries in the occurrence. Veer
Singh attached by Ganasa, Rishipal with
Tabbal and Sukhveer with Burari. Other
accused assaulted by Lathies. The incident
was
witnessed
by
Shyam
Singh,
Harnarayan, Netrapal, Rambilas and others.
The informant Kartar Singh and persons of
his side snatched the weapons of assault of
the accused and used it in their private
defence. PW-2 Kartar Singh proved the
written report (Exhibit Ka-2) which he had
given in the police station concerned and
on the basis of which the FIR was
registered. Accused wanted to forcibly
occupy their land. PW-2 Kartar Singh and
his companions won the case relating to the
land in Hapur Civil Court. The medical
examination of the injured was done in the
District
Hospital
Ghaziabad.
In
the
occurrence, there was fracture in the upper
forearm of Lallu and that of the nose of
Janam Singh. There was a crack in the head
of Sardar Singh. PW-2 Kartar Singh
admitted in his cross examination that he
reached the place of occurrence about half
hour before the occurrence has taken place.
There is a distance about three hundred
yards between the place of occurrence and
the house of Kartar Singh. Sardar Singh,
Janam Singh and Kartar Singh have
separate houses in the village. PW-2 has
admitted that he and the persons belonging
to his side have inflicted injuries to the
accused in their self-defence. PW-2 Kartar
Singh also admitted that accused have also
registered
a
cross
case
against
the
informant and his companions regarding
the incident. PW-2 Kartar Singh has denied
that he has lodged the FIR as a counterblast
of the cross case lodged by the accused.

26. PW-3 Shyam Singh has stated in
his evidence dated 15.05.1987 that the
occurrence took place about five years four
months earlier. It was about 8 am. He was
present at his house. The place of
occurrence is near to his house. Accused
Rishipal holding Tabbal, Sukhveer Singh
holding Budi, Veer Singh, Ganasa and
remaining accused holding lathi in their
hands. At that time, Lakhpat, Sardar Singh,
Janam Singh and Kartar Singh were sitting
in their hut and smoking Hukka. The
accused suddenly started quarrelling and
assaulting them. On hue and cry being
made PW-3 Shaym Singh, Netrapal,
Rambilas reached on the spot and accused
leaving their weapons fled from the spot. In
the incident Sardar Singh, Janam Singh and
Lallu received serious injuries and other
injured received simple injuries. PW-3
Shyam Singh has denied the suggestion
that there is no house or hut on the place of
occurrence. He has also denied that the
accused assaulted the informant and his
companions in self-defence. PW-3 denied
that Kartar Singh, Sardar Singh and
Lakhpat has also started beating the
accused.

27. Injured Janam Singh and the eye
witness PW-3 Shyam Singh has proved the
date, place and time of incident. They have
also proved the role of appellants Veer
Singh, Sukhveer and Shripal Singh in the
assault on injured from the side of the
informant, Kartar Singh. They have proved
that appellants-accused Veer Singh with
Burara, Sukhveer with Ganasa and Shripal
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
with Lathi assaulted PW-1 Janam Singh,
injured Sardar Singh and Lallu with
dangerous weapon causing them grievous
hurt. They have also proved that Kartar
Singh submitted written report of the
incident in the police station concerned on
the basis of which first information report
was registered against appellants Veer
Singh, Sukhveer Singh and other accused,
who have died. They have proved that after
the incident the medical examination and xray of their injuries were done and fracture
was found in the body of injured Sardar
Singh, Janam Singh and Lallu.

28. PW-4 Dr. Gyanendra Kumar,
Radiologist has proved the x-ray report
dated 25.01.1982 of Sardar Singh, Janam
Singh and Lallu, Exhibit Ka-2, ka-3 and ka4, respectively. He has stated that in the
acromion process of the scapula bone of
injured Kartar Singh, fracture was found.
He has also proved the fracture in the nasal
bone of injured Janam Singh. PW-4 Dr.
Gyanendra Kumar has also proved that in
the x-ray report of Lallu, ulna bone of his
left forearm was found to be fractured.

29. The oral evidence of PW-1 and
PW-2 is corroborated by x-ray report of
Sardar Singh, Janam Singh and Lallu Singh
and injury report of Kartar Singh, Sardar
Singh, Lallu, Janam Singh and Manveer
Singh which are Exhibits Ka-5, ka-6, Ka-7,
ka-8 and ka-9, respectively. The oral
evidence of witnesses of facts, PW-1 Janam
Singh, PW-2 Kartar Singh and PW-3
Shyam Singh is cogent, trustworthy,
reliable and truthful. Nothing emerges from
their cross examination which may prove
them unreliable or false.

30. Oral evidence of aforesaid
witnesses of facts, namely, PW-1, PW-2
and PW-3 is also corroborated by the
written report (Exhibit Ka-1), Chick FIR
(Exhibit Ka-11), the entry of GD institution
of case in G.D. (Exhibit Ka-12) which is as
report No. 12, dated 19.01.1982 time 10:50
o'clock.

31. PW-5 Dr. K.P. Sarabhai has
proved that on the day of incident i.e.
19.01.1982 he had also examined the
injuries of accused Phoolwati, Khandar
Singh, Sukhveer Singh and Veer Singh. He
had found injuries on the person of these
accused. About the injuries received by the
accused, the prosecution witnesses have
stated that it was accused persons who first
assaulted the informant and his companions
and caused injuries to them and, thereafter,
informant and his companions snatched the
weapons from the accused persons and
caused injuries in the exercise of right of
self defence. It is clear that informant and
his companions were in possession of the
disputed land where they were sitting and
smoking Hukka in the hut situated in their
land. Thus, it is proved that informant and
his companions inflicted injuries to accused
persons and persons of his side in the right
of private defence.

32. From the analysis of the oral and
documentary evidence on record it is
proved that on the date, time and place of
occurrence
appellants
Veer
Singh,
Sukhveer, Shripal Singh and other three coaccused persons who have died, made an
unlawful assembly and with dangerous
weapon assaulted the injured Sardar Singh,
Janam
Singh
and
Lallu
and
other
companions with Lathi, Tabbal and Farsa
causing simple and grievous injuries to
them. Thus, the prosecution has proved
charge
under
Section
147,
323/149,
324/149,
325/149
against
appellantsaccused Veer Singh, Sukhveer Singh and
Shripal Singh.
3 All. Khandar Singh & Ors. Vs. State of U.P.
1195

33. Learned counsel for the appellants
has submitted that the incident had taken
place on 19.01.1982 and 40 years have
passed
since
then.
Appellants
and
informant both are living in peace together.
No criminal history has been produced
against the accused-appellants by the State.
Appellants
be
given
the
benefit
of
Probation of Offenders Act 1958 and
release on probation.

34. Section 4 of the Probation of
Offenders Act, 1958 reads 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
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.

35. A similar provision finds place in
the Code of Criminal Procedure. Section
360 Cr.P.C. provides:
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

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: Provided that the High Court or Court
of Session shall not under this sub- section
inflict a greater punishment than might
3 All. Khandar Singh & Ors. Vs. State of U.P.
1197
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.

36. 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
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.

37. 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
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

38. 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."

39. 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 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.

40. 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 under Sections 147,
325/149, 324/149, 323/149 I.P.C. is upheld
and is not required to be disturbed.

41. However, instead of sending the
appellants to jail, they shall get the benefit
of Section 4(1) of the Probation of
Offenders Act, 1958 and shall be released
on probation under the supervision of the
Trial Court for one year on filing two
sureties to the tune of Rs. 25,000/- coupled
with personal bonds and undertaking to the
effect that they shall not commit any
offence and shall observe good behaviour
and shall maintain peace during this period.
If there is breach of any of the conditions,
they will subject themselves to undergo
3 All. Tejvir Vs. State of U.P.
1199
sentence before the court below. It is also
desirable that accused-appellants may be
directed to deposit Rs.5,000/- each as
compensation in this case within two
months. The amount of Rs. 5000/-
deposited by the each accused-appellants,
Rs.5,000/- shall be paid to injured having
received grievous injuries, namely, Janam
Singh, Sardar Singh and Lallu, or in case of
their death to their legal representatives.
The appellants-accused shall file the
aforesaid bonds and sureties and shall
deposit the compensation amount within
two months from the date of the judgment
in the court concerned as per law. In case
surety bonds and compensation is not
deposited, appellants shall have to undergo
the sentence awarded by the Trial Court.

43. Accordingly, this appeal is partly
allowed
regarding
sentences
of
the
appellants.

44. Let a certified copy of this order
along with record be sent to the court
concerned for compliance.
----------
(2023) 3 ILRA 1199
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 1387 of 2009
With
Criminal Appeal No. 1648 of 2009
With
Criminal Appeal No. 1685 of 2009

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

Counsel for the Appellant:
Sri Virendra Singh, Sri Apul Misra, Sri
Kuldeep Singh Chahar, Sri R.S. Saroj, Sri
Sheshadri Trivedi, Sru Surendra Singh

Counsel for the Opposite Party:
G.A., Sri Mithilesh Kumar Shukla, Sri R.P.
Dwivedi, Sri Sheshadri Trivedi, Sri Avanish
Kumar Shukla

A. Criminal Law - Indian Penal Code, 1860
- Sections 147, 148 & 302/149 IPC - Arms
Act, 1959 - Section 25 - appellants
sentenced to life imprisonment- informant
is son of the deceased-father shot by
appellant- motive- avenging the defeat in
Gram
Pradhan
election-St.ments
of
witnesses of fact- Sections 161 and 162 of
CrPC- quality of evidence during trial-
establishment of motive- St.ment under
Section 164 CrPC- corroborative evidence-
important improvement in FIR version and
St.ment under Section 161 CrPC- such
evidence has no significance. (Paras 18,
19, 20, 21,23 and 24)

HELD: However, the motive acts as a doubleedged sword which cuts both ways. The motive
instigates a person to commit the offence as well
as it also drives a person to falsely implicate the
other person in a crime and it depends on the fact
and circumstances as well as quality of the
evidence adduced during trial as to what inference
is to be discerned on account of establishment of
motive in a criminal case. (Para 18)