# Radhey Shyma & Anr. Revisionists v. State of U.P. & Anr

- **Citation:** (2023) 9 ILRA 128
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-20
- **Case number:** Criminal Revision No. 436 of 2014
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyma-anr-revisionists-v-state-of-u-p-anr-50753
- **Pages:** 6

## Headnote

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 323 & 504 - The
Code of Criminal Procedure, 1973
-
Section 313 &155 (2) - Probation of
Offenders Act 1958 - Section 4 - power of
court to release certain offenders on
probation of good conduct, Section 12 -
Removal of disqualification attaching to
conviction - In every case, to prove the
charge under Section 323 I.P.C. the
existence of injury report or its proof by
medical
officer
concerned
is
not
necessary.(Para - 15)

Non-cognizable report - accused assaulted
P.W. 1 and his son - abusing four persons
and two witnesses - no specific allegations in
NCR or witnesses - general allegations that
accused
abused
injured
persons
-
no
evidence that accused insulted witnesses -
intent to provoke - to commit breach of
peace or any offense - Appellants convicted -
released on probation - filed criminal appeal
against Sessions Judge Court's affirmed
judgment
-
contesting
both
trial
and
appellate court's orders - probation period
ended - revisionists filed probation bonds -
directed by trial court - affirmed by appellate
court orders. (Para -2,14,17 )

HELD:-Appellant's conviction under Section 323
I.P.C. maintained , while their conviction under
Section 504 I.P.C. quashed, indicating that
Section 323 I.P.C. is not an offense of morale
turpitude. In light of Hon'ble Apex Court person
released on probation of good conduct will not
incur any disqualification due to conviction
recorded by trial court as provided under
Section 12 of Probation of Offenders Act, 1958.
Courts below committed no illegality and said
charge proved beyond reasonable doubt against
convict persons.(Para - 16,19,20 )

Revision partly allowed. (E-7)
9 All. Radhey Shyma & Anr. Vs. State of U.P. & Anr.
129
List of Cases cited:

## Text

128 INDIAN LAW REPORTS ALLAHABAD SERIES
interference by this Court exercising its
revisional power under Section 397/401
Cr.P.C.

55.

On
overall
scrutiny
and
evolutional of the aforesaid observations
and submissions made by the learned
counsels for the parties as also the finding
recorded in the order impugned, this Court
holds that the judgment and order dated
7th/12th
December,
2019
passed
by
Additional Sessions Judge, Court no.1,
Meerut in Sessions Trial No.1057 of 2008
(State of U.P. Vs. Sachin Malik & Others),
arising out of Case Crime No. 269 of 2004,
under Sections 302 and 34 I.P.C., Police
Station Medical, District Meerut cannot be
legally sustained and is hereby quashed.
Since no Magistrate or any court of law can
invoke or exercise powers under Section
319 Cr.P.C. for summoning any person to
face trial as an accused after passing of
order of sentence qua co-accused, no
further orders are required to be passed by
this Court in that regard at such a belated
stage.

56. The present criminal revision
succeeds and is allowed.

57. There shall be no orders as to
costs.
----------
(2023) 9 ILRA 128
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.09.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 436 of 2014

Radhey Shyma & Anr. ...Revisionists
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionists:
Ajeet Kumar

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - Revision - Indian Penal
Code, 1860 - Sections 323 & 504 - The
Code of Criminal Procedure, 1973
-
Section 313 &155 (2) - Probation of
Offenders Act 1958 - Section 4 - power of
court to release certain offenders on
probation of good conduct, Section 12 -
Removal of disqualification attaching to
conviction - In every case, to prove the
charge under Section 323 I.P.C. the
existence of injury report or its proof by
medical
officer
concerned
is
not
necessary.(Para - 15)

Non-cognizable report - accused assaulted
P.W. 1 and his son - abusing four persons
and two witnesses - no specific allegations in
NCR or witnesses - general allegations that
accused
abused
injured
persons
-
no
evidence that accused insulted witnesses -
intent to provoke - to commit breach of
peace or any offense - Appellants convicted -
released on probation - filed criminal appeal
against Sessions Judge Court's affirmed
judgment
-
contesting
both
trial
and
appellate court's orders - probation period
ended - revisionists filed probation bonds -
directed by trial court - affirmed by appellate
court orders. (Para -2,14,17 )

HELD:-Appellant's conviction under Section 323
I.P.C. maintained , while their conviction under
Section 504 I.P.C. quashed, indicating that
Section 323 I.P.C. is not an offense of morale
turpitude. In light of Hon'ble Apex Court person
released on probation of good conduct will not
incur any disqualification due to conviction
recorded by trial court as provided under
Section 12 of Probation of Offenders Act, 1958.
Courts below committed no illegality and said
charge proved beyond reasonable doubt against
convict persons.(Para - 16,19,20 )

Revision partly allowed. (E-7)
9 All. Radhey Shyma & Anr. Vs. State of U.P. & Anr.
129
List of Cases cited:

1. Fiona Shrikhande Vs St. of Maha. , AIR 2014
SC 957

2. Trikha Ram Vs V.K. Seth, AIR 1988 SC 285:
1987 (Supp) SCC 39

3. Harichand Vs Director of School Education,
(1998) 2 S.C.C. 383

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionist and learned A.G.A. for the State
and perused the record.

2. Instant Criminal appeal has been
preferred against judgment and order dated
03.06.2014 passed by learned Sessions
Judge Court No. 8 Barabanki in Criminal
Appeal
No.
88/20213,
whereby
the
judgment and order dated 23.08.2013
passed by learned trial court convicting the
appellants from charge under Sections 323,
504 I.P.C. and releasing them on probation
of good conduct has been affirmed. The
revisionist has assailed the judgment and
orders of both the courts below the Trial
Court as well as the appellate court in
present Criminal Revision.

3. The factual matrix of the case in
brief of that the informant Abdul Majid
lodged a non-cognizable report before
Police Station Kotwali Nagar, District
Barabanki by oral information to the effect
that the accused persons Pratap Narayan,
Tej Narayan, Radhey Shayam and Pawan
Kumar asked to dig the platform (chabutra)
of the informant, when he objected the
accused persons assaulted him by sticks,
his son Mohd. Siraj ran to save him on
cries of his father but the accused assaulted
him also. The co-villagers rushed to the
spot
on
commotion
and
saved
the
informant and his son and they also saw the
incident. The police investigated the case
by orders of the other court dated
14.06.2002 passed under Section 155 subsection 2 Cr.P.C. and submitted chargesheet against named accused persons. The
accused Pratap Narayan died during the
pendency of the trial and the trial was
abated against him. The prosecution
examined PW. 1 Abdul Majid (injured),
PW. 2 Rajendra and P.W. 3 Mohd. Siraj
(injured) for the prosecution evidence to
support NCR version in their testimony,
and statements of the accused persons were
recorded under Section 313 Cr.P.C. they
denied the accusation made against them
and stated that they were falsely implicated
in the case due to enmity of litigation;
accused Tej Narayan and Radhey Shyam
stated that they are running a shop of
cement the informant Abdul Mazid had
borrowed cement for constructing his house
and when the accused demanded their
money the informant side lodged false and
concocted case against the accused persons
by creating false injuries. Accused Pawan
Kumar stated that he has only been
implicated in the present case due to reason
of being brother of accused Radhey Shyam.

4. Learned Trial Court observed after
perusal of evidence on record in the light of
accusation made in NCR that incised
wound was found on person of injured
Abdul Majid, Mohd. Siraj. The allegations
in the statements of the witnesses that the
accused persons had assaulted the injured
with sharp edged weapons is not found
trustworthy, the injuries of these injured
persons are in the nature of lacerated
wound and contusion, which is normally
caused by some hard and blunt object like
lathi. The witnesses Abdul Majid and
Mohd. Siraj have stated that accused Pratap
130 INDIAN LAW REPORTS ALLAHABAD SERIES
Narayan and Radhey Shyam and Pawan
has beaten lathi. It also appears that Pratap
Narayan and his two sons had caused the
incident and the name Tej Narayan is
falsely added in prosecution version.

5. Learned trial court found the
injuries of injured Abdul Majid, Mohd Siraj
of simple in nature. As per the injury report
but observed that the concerned medical
officer has not been examined to prove the
injury report, thus these injury reports are
not admissible in evidence for want of
requisite proof. However, even if, the injury
reports are not admissible, the charge under
Section 323 I.P.C is proved by evidence of
PW-1 and PW-3, this is not in every case
that injuries of the injured are to be proved
by evidence of medical witness in a case
under Section 323 I.P.C. which defines
simple hurt and this offence can also be
proved by evidence of eye witnesses.
Learned trial court also observed that
Section 504 I.P.C. is also made out against
the said accused persons. The learned trial
court acquitted the accused Tej Narayan of
charge under Section 323, 504 I.P.C. but
convicted the accused Radhey Shyam and
Pawan Kumar for charge under Section
323,504 I.P.C. However, Trial Court while
taking into consideration the nature of
offence and fact that the accused persons
have not had any criminal history directed
to release them on probation of good
conduct, instead of sentencing. The accused
Radhey Shyam and Pawan Kumar were
released on probation of good conduct for
one year on personal bond and two surety
of Rs. 15,000/- and they are directed to
appear before D.P.O. once in three months,
during period of probation one year.

6. The accused persons assailed the
judgment and order of learned trial court
before court of session and the appeal was
decided by learned Additional Sessions
Judge-12 Barabanki by judgment and order
dated 03.06.2014. Learned appellate court
observed that no medical examination of
the injured was carried out but this fact will
not adversely affect the prosecution case,
even no adverse inference can be drawn
due to fact that P.W. 2 has been declared
hostile.

7. The appellate court observed that
the contradiction pointed out of by the
defence in statements of P.W.1 P.W. 2 and
P.W. 3 are of minor nature and no serious
contradiction appears in their evidence.
Although, the injuries of P.W. 1 and P.W. 3
are not proved by the evidence of medical
reports but the injured persons have
testified the manner and mode of receiving
injuries for the proof of offence under
Section 323 I.P.C. the injury report is not
necessary; the statement of the accused
under Section 313 I.P.C. are not in the
nature of evidence and because the said
statement is not given on oath. They could
not adduce any oral or documentary
evidence in their defence. Learned trial
court has not committed any illegality
while convicting and releasing the accused
persons Radhey Shyam and Pawan Kumar
on probation of good conduct.

8. Learned counsel appearing for the
revisionist submitted that as many as four
persons faced trial for the charge under
Section 323, 504 I.P.C. and out of them two
persons Radhey Shyam and Pawan Kumar
were convicted of charge under Section
323, 504 I.P.C. However, aid of Section 34
I.P.C. has not been taken by learned trial
court as well as learned appellate court
while
convicting
and
affirming
the
conviction of accused persons in absence of
charge under section 34 I.P.C the role
assigned to each of the accused person will
9 All. Radhey Shyma & Anr. Vs. State of U.P. & Anr.
131
be taken into consideration individually as
the accused persons have not been
convicted on the basis of Section 34 I.P.C.
The revisionist Pawan Kumar has been
assigned role of causing hurt to mother of
P.W. 3 Mohd. Siraj by hitting her on her
stomach
but
neither
her
medical
examination
was
conducted
nor
she
appeared as a witness before the Court.

9. P.W. 2 Rajendra has no supported
prosecution version in his testimony before
the Court and he had stated that he had not
seen the accused persons assaulting the
witnesses Abdul Majid and Mohd. Siraj.
The injuries reports of P.W. 1 and P.W. 3
are not proved during the trial for want of
production of medical evidence of the
doctor who had prepared the reports. There
are material contradictions in statements of
witnesses
which
are
taken
into
consideration by learned courts below. The
conviction of the appellants are not
sustainable under law under Section 34
I.P.C. committed by the revisionist. The
revisionist have completed the period of
probation as awarded long before and as
directed by court below but even then they
are suffering civil consequences and even
the police authorities have not cleared the
application moved by the revisionist of the
presence of pass-port at their end.

10. He lastly submitted that as many
as six persons are stated to have caused
injuries to the witnesses however, only one
lacerated wound is found on top of head
and one contusion on right side of stapula
mentioned in the injury report of Abdul
Majid and one lacerated wound and one
contusion is shown in injury report of
Mohd. Siraj, however, these injuries reports
are also not liable to be read in evidence
due to non-examination of their (medical
officer) who prepare these injuries reports.

11. Per contra, leaned A.G.A.
appearing for the State submitted that there
is no good ground to warrant the
interference of this Court in concurrent
findings
to
courts
below
regarding
conviction and release of the revisionist on
probation of good conduct. Learned courts
below had rightly observed that in case
under Section 323 I.P.C. the production and
examination of medical witness is not
mandatory and even in absence of injury
report the conviction under Section 323
I.P.C. can be maintained.

12. PW. 1 Mohd. Siraj, the injured
had stated in his evidence that Tej Narayan
has assaulted him and his father on head.
The accused persons has assaulted his
mother and sister and Pawan Kumar hit his
mother on her abdomen by club. He has not
named any persons of neighbourhood as
witness, the report was lodged by his father
first of all Ram Narayan hit the witnesses,
he became unconscious due to injuries he
received by banka on his head.

13. So far as the charge under Section
504 I.P.C. is concerned, Hon?ble Supreme
Court in Fiona Shrikhande v. State of
Maharashtra, AIR 2014 SC 957 held as
under:-

"However, Section 504 comprises
of the following ingredients, viz (a)
intentional insult, (b) the insult must be
such as to give provocation to the person
insulted, and (c) the accused must intent or
know that such provocation would cause
another to break the public peace or to
commit any other offence. The intentional
insult must be of such a degree that should
provoke a person to break the public peace
or to commit any other offence. The person
who intentionally insults intending or
knowing it to be likely that it will give
132 INDIAN LAW REPORTS ALLAHABAD SERIES
provocation to any other person and such
provocation will cause to break public
peace or to commit any other offence, in
such a situation the ingredients of section
504 are satisfied. One of the essential
elements constituting the offence is that
there should have been an act or conduct
amounting to intentional insult and the
mere fact that the accused abused the
complainant, as such, is not sufficient by
itself to warrant a conviction under section
504."

14. In the present case a noncognizable report lodged at the instance of
P.W. 1 Abdul Majid on the basis of the oral
statement has stated therein the accused
persons assaulted him and his son Mohd.
Siraj while abusing them four persons
named in NCR and two witnesses Prem and
Rajendra
are
mentioned
therein.
No
specific allegation in the NCR as well as in
the statements of witnesses aid to which of
the accused abused which witness are
injured at the time of the incident, there are
general allegation against the accused
persons that they had abused the injured
persons while assaulting them. There is
nothing in NCR as well as in evidence of
witnesses that the accused persons had
insulted the witnesses with intent to
provoke them to commit breach of peace or
to commit any offence, as stated by Hon'ble
Apex Court In Fiona Shrikhande v. State of
Maharashtra (supra). Therefore, in the
absence of specific acquisition and evidence
his charge under Section 504 I.P.C. the same
is not found to be proved on the basis of
evidence laid by prosecution during trial.
Therefore, charge under Section 504 I.P.C. is
not proved beyond reasonable doubt in the
present case in the accused person released to
be acquitted charge under Section 504 I.P.C.
So far as under Section 323 I.P.C. is
concerned although the accused reasons are
not convicted with assistance of Section 34
I.P.C. but from on the basis of acquisition in
NCR and evidence abused by the witnesses
P.W. 1 and P.W. 3 during trial the fact that
convicted accused persons voluntarily caused
herein on P.W. 1 and P.W. 3 the informant and
his son respectively.

15. The leaned courts below have
rightly observed in impugned judgments that
in every case, to prove the charge under
Section 323 I.P.C. the existence of injury
report or its proof by medical officer
concerned is not necessary.

16. The medical evidence is essentially an
opinion evidence and even in absence of medical
evidence the charge under Section 323 I.P.C.
may be proved on the basis of oral testimony of
the witnesses as in the present case, the injury
reports of P.W. 1 and P.W. 3 are placed on record
but the same was not proved during trial by any
medical evidence Thus, in the light of foregoing
discussion, the learned courts below has
committed no illegality and said charge is proved
beyond the reasonable doubt against the convict
persons.

17. The revisionists have been extended
benefit of Section 4 probation of good conduct
by the trial court and instant sentence at once.
They were directed to be released on the
probation of good conduct for proved offences
and were directed to be placed under supervision
of District Probation Officer. This is admitted that
the period of probation has already expired and
the revisionists had filed probation bonds
pursuant direction of the trial court which has
been affirmed by orders of appellate court.

18. Section 4 Probation of Offenders Act
1958 provides for power of these certain
offenders on probation of good conduct when
any person found guilty of offence committed,
and offence did not punishable and the court by
9 All. Anil Kumar (Engineer) Vs. State of U.P. & Ors.
133
which are found guilty of the 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 when
notwithstanding anything contained in any other
law for the time being the court may, instead of
sentencing him at once, many punishment direct
that to release on interim bail with or without
sureties to appear and face sentence when called
upon during such not exceeding three years, as
the court may direct, and in the meantime to keep
the peace and good behavior for specified period
altogether.

19. In the present case the conviction of
appellant of the charge under Section 323 I.P.C.
is maintained and their conviction under Section
504 I.P.C. has been quashed in this judgment the
charge under Section 323 I.P.C. under Section
323 I.P.C. is not not an offence of morale
turpitude.

Section 12 of probation of Offenders Act
1958 is very relevant which provides as
under:-

"12. Removal of disqualification attaching
to
conviction.?Notwithstanding
anything
contained in any other law, a person found guilty
of an offence and dealt with under the provisions
of section 3 or section 4 shall not suffer
disqualification, if any, attaching to a conviction
of an offence under such law: Provided that
nothing in this section shall apply to a person
who, after his release under section 4 is
subsequently sentenced for the original offence."

"In view of S. 12, Probation of
Offenders Act, an offende who has been
released on probation shall not suffer
disqualification attaching to a conviction of the
offence for which he has been convicted
notwithstanding anything contained in any
other law, instead of dismissing him from
service he should have been removed from
service so that the order of punishment did not
operate as a bar and disqualification for future
employment with Government. Under the
circumstances, the impugned order of dismissal
is converted into an order of removal from
service. Subject to this modification the appeal
fails and is dismissed: Trikha Ram v. V.K. Seth
AIR 1988 SC 285: 1987 (Supp) SCC 39."

Similarly, where a person is convicted
under S. 408, I.P. Code but has been released on
probation under S. 4 (1) of the Probation of
Offenders Act, S. 12 does not debar the authority
to take into account the said conviction of the
said Government employee for dismissing him
from service: Harichand v. Director of School
Education (1998) 2 S.C.C. 383."

20. Offence under Section 323 IPC is not
an offence of moral turpitude, therefore in the
light of Hon'ble Apex Court it appears that a
person released on probation of good conduct
will not incur any disqualification due to
conviction recorded by trial court as provided
under Section 12 of Probation of Offenders Act,
1958.

21. In the light of the foregoing discussion
and observations the revision is partly allowed
in the manner as stated above.
----------
(2023) 9 ILRA 133
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.08.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 1077 of 2022

Anil Kumar (Engineer) ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist: