# Raj Kumar & Anr. (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-19
- **Case number:** Criminal Appeal No. 753 of 1990
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-anr-in-jail-v-state-of-u-p-48043
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections - 313 & 360 - Indian
Penal Code, 1860 - Sections - 323/34,
324/34, 307, 452 & 506 - Probation of
offenders Act, 1958 - Section - 4 - Criminal
Appeal - against conviction & sentence - offence
of threat with dire consequences and assault
upon the informant's son - Evaluation of
Evidences - defence taken that, no any eye
witnesses, no any evidence of common intention
and father of accused had already lodged an
FIR against the informant therefore in rebuttal
this case was lodged against them - but, from
perusal of FIR filed by accused appellants, court
finds that, name of informant is absent in the
list of accused - and further, documents which
are filed by accused-appellants in defence have
not been proven by any witnesses - appellants
fails to rebut the prosecution case - on the other
796 INDIAN LAW REPORTS ALLAHABAD SERIES
hand, prosecution has proved the charges u/s
324/34 & 323/34 IPC against the appellants -
court finds that, no illegality, irregularity or
impropriety nor any jurisdictional error in the
impugned order of court below - thus,
conviction is upheld - However, appellants are
entitled to get the benefit of section 4 of Act,
1958 - directions issued with regards to find and
compensation accordingly. (Para - 14, 25, 26,
35, 36, 37)

Appeal is partly allowed. (E-11)

List of Cases cited:

## Text

12 All. Raj Kumar & Anr. Vs. State of U.P.
795
the informant by PW-2 is quoted in a
manner as if PW-1 was informed that the
appellant was seen taking the victim
towards the brick kiln from where her body
was
recovered.
Importantly,
in
the
deposition
made
during
trial,
the
information alleged to have been given by
PW-2 to PW-1 is with regard to the
appellant taking the victim to his house.
Interestingly, the articles seized from the
house of the appellant were not found
stained with blood or semen. Further, the
I.O. made no effort to DNA profile the
blood sample of the appellant with the
blood and semen found on the knickers of
the deceased. All of this creates a serious
doubt in our mind with regard to the
credibility of the investigation, which
assumes importance in a matter based on
evidence
circumstantial
in
nature.
It
appears to us that the case was built on
strong
suspicion
and
nothing
else,
probably, to solve out a heinous crime
because it is quite natural that when
heinous crime is noticed or reported there is
immense pressure on the Investigating
agencies to solve it out as quickly as
possible. The appellant appeared to be a
soft target, being son of the Pujari at the
temple where the deceased used to go. But,
it is well settled that how so ever strong
suspicion might be it does not take the
place of proof. In our view, therefore,
neither the prosecution has been abe to
prove the incriminating circumstances
against the appellant beyond the pale of
doubt nor those circumstances constituted a
chain so complete as to indicate that in all
human probability it was the appellant and
no one else who committed the crime.

19. In view of the discussion above,
we are of the opinion that the appellant is
entitled to be acquitted of all the charges
for which he has been tried and convicted.
The appeal is, therefore, allowed. The
judgment and order of conviction passed by
the trial court is hereby set aside. The
appellant is acquitted of all the charges for
which he has been tried. The appellant is
reported to be in jail. He shall be set at
liberty forthwith unless warranted in any
other case subject to compliance of
provisions of Section 437-A CrPC.
----------
(2022) 12 ILRA 795
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2022

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 753 of 1990

Raj Kumar & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Raj Singh, Sri Surendra Nath Yadav

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections - 313 & 360 - Indian
Penal Code, 1860 - Sections - 323/34,
324/34, 307, 452 & 506 - Probation of
offenders Act, 1958 - Section - 4 - Criminal
Appeal - against conviction & sentence - offence
of threat with dire consequences and assault
upon the informant's son - Evaluation of
Evidences - defence taken that, no any eye
witnesses, no any evidence of common intention
and father of accused had already lodged an
FIR against the informant therefore in rebuttal
this case was lodged against them - but, from
perusal of FIR filed by accused appellants, court
finds that, name of informant is absent in the
list of accused - and further, documents which
are filed by accused-appellants in defence have
not been proven by any witnesses - appellants
fails to rebut the prosecution case - on the other
796 INDIAN LAW REPORTS ALLAHABAD SERIES
hand, prosecution has proved the charges u/s
324/34 & 323/34 IPC against the appellants -
court finds that, no illegality, irregularity or
impropriety nor any jurisdictional error in the
impugned order of court below - thus,
conviction is upheld - However, appellants are
entitled to get the benefit of section 4 of Act,
1958 - directions issued with regards to find and
compensation accordingly. (Para - 14, 25, 26,
35, 36, 37)

Appeal is partly allowed. (E-11)

List of Cases cited:

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

2. St. Vs Raj Kumar & anr., Sessions Trial No.
368 of 1988

3. Subhash Chand & ors. Vs St. of U.P. 2015
Law Suit (All) 1343

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

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

Heard Sri Surendra Nath Yadav,
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
14.03.1990 passed by Ist Additional
Sessions Judge, Bulandshahr, in Sessions
Trial No. 368 of 1988, State Vs. Raj Kumar
and another arising out of Case Crime No.
19 of 1983, under Sections 323 & 307
I.P.C., Police Station- Jahangirpur, District-
Bulandshahr.

3. By the impugned order, the trial
court has convicted the appellants, Raj
Kumar and Bhoora alias Omi u/s 324/34
and 323/34 I.P.C. with a fine of Rs.2,000/-
and Rs.1,000/- each respectively with
default clause. They are further sentenced
to imprisonment till the rising of the court
under the said count.

4. According to the prosecution case
about 4-5 days prior to the occurrence in
question i.e. 17.02.1983 at about 10 a.m.,
the accused-appellants, Raj Kumar and
Bhoora were opening fire at their tubewell.
Prasadi and his son, Mahavir, who were
residents of village- Bhoot Garhi, P.S.-
Jahangirpur, District- Bulandshahr, were
going to their own tubewell. They objected
to the accused whereupon the accused
threatened them with dire consequences, if
they disclosed the above incident of firing
to anybody else. The informant and his son
did not convey this information to any of
the villagers but the accused suspected the
informant and his son. On 17.02.1983 at
about 10 a.m., the accused, Bhoora and Raj
Kumar with one other person were running
with lathis and gandasa. On the main front
of the house of Om Prakash. All the three
assailants attacked Mahavir with lathi and
gandasa with the intention to kill him.
Accused Bhoora attacked Mahavir on his
head with the gandasa as a result of which
Mahavir fell down. The witnesses Bhoja,
PW2 Vikram Singh and other villagers
assembled on the spot to save Mahavir. The
accused ran away towards village- Pahasu.
The informant's wife and other villagers
took injured Mahavir to District Hospital,
Khurja. Bhoja went to Jahangirpur and
informed the informant, Pershadi about this
incident. Pershadi then went to Khurja and
saw his injured son who was admitted in
the hospital. The injured went thereafter to
P.S.- Jahangirpur and lodged the written
report (Ext.Ka.1).

5. On the basis of written report
(Ext.Ka.1), a chik FIR (Ext.Ka.4) was
prepared by PW5 Constable Omprakash
12 All. Raj Kumar & Anr. Vs. State of U.P.
797
Tyagi. On the basis of chik report, he made
the
G.D.
entry
(Ext.Ka.5).
The
investigation of the case was taken by PW6
Babu Ram Sharma. He recorded the
statement
of
Pershadi,
Mahavir
and
Vikram, made a local inspection at the spot
and prepared the site plan (Ext.Ka.6). On
25.02.1983, he took in his possession the
blood-stained clothes of injured Mahavir
and
prepared
the
recovery
memo
(Ext.Ka.7) to that effect. After completing
the investigation, he submitted charge-sheet
(Ext.Ka.8) against accused Bhoora on
19.03.1983 u/s 323, 307 I.P.C. On
21.07.1983, another S.I. Mojjam Singh
submitted another charge-sheet (Ext.Ka.9)
against accused Raj Kumar u/s 323, 307
I.P.C.

6. Both the accused were committed
to the Court of Sessions by order dated
03.08.1986
passed
by
learned
Chief
Judicial
Magistrate,
Bulandshahr.
On
18.01.1989, the court framed charge u/s
323/34 and 307/34 I.P.C. against accusedappellants, Raj Kumar and Bhoora @ Omi.
The appellants pleaded not guilty and
claimed to be tried for the charge.

7. To prove the charge, the court
examined PW1 Mahavir, PW2 Vikram and
PW3 Pershadi as witnesses of fact whereas
PW4 Ravi Kumar Sharma, PW5 H.C. Om
Prakash Tyagi and PW6 S.I. Babu Ram
Sharma,
were
examined
as
formal
witnesses.

8. PW3 informant Pershadi proved the
written report (Ext.Ka.1). He also proved
the
blood-stained
clothes
of
injured
Mahavir as material Exts.1, 2 and 3. He
stated in his evidence that above material
exhibits were packed and sealed before him
by the Investigating Officer and the
Investigating Officer prepared the memo
regarding taking them in his possession.

9. PW1 Mahavir and PW2 Vikram
deposed about the occurrence. PW4 Dr.
Ravi Kumar Sharma, the then Medical
Officer in Government Hospital, Khurja, on
17.02.1983 at 11.50 p.m. proved the injury
report of injured Mahavir (Ext.Ka.3). He
noted following injuries on the person of
injured Mahavir :-

(i) Incised wound 4 cm x 1 cm x
bone deep on the back of left side head 6
cm above and behind left ear, margins
clean cut. Both ends tapering, fresh
bleeding present.

(ii) Abrasion 3 cm x 11⁄2 cm on the
back of right elbow

(iii) Abrasion 1⁄2 cm x 1⁄2 cm on the
back and base of right ring finger.

(iv) Red contusion 3 cm x 2 cm on
the top of left shoulder.

In the opinion of the PW4 Dr.
Ravi Kumar Sharma, injury no. 1 was
caused by some sharp-edged weapon and
was kept under observation. X-ray of the
skull was advised. The remaining injuries
were caused by some hard blunt object and
are simple in nature. Duration of the
injuries is fresh.

10. PW5 H.C. Om Prakash Tyagi
proved the chik first information report and
G.D. relating to institution of criminal case.

11. The Investigating Officer, PW6
S.I. Babu Ram Sharma has proved the site
plan and two charge-sheets submitted
against accused, Raj Kumar and Bhoora.
798 INDIAN LAW REPORTS ALLAHABAD SERIES

12. On 06.02.1990, the court recorded
the statement of the accused-appellants, Raj
Kumar and Bhoora u/s 313 Cr.P.C. They
have denied the prosecution case and have
stated that the prosecution witnesses have
given false evidence against them due to
enmity. They have also stated that the
Investigating Officer has wrongly filed
charge-sheets against them.

13. The accused-appellants has stated
in their additional statement that on the date
of incident, the informant Pershadi had
done marpeet with his father and maternal
uncle regarding which first information
report was lodged against him. Therefore,
he filed wrong written report against the
accused.
The
accused
have
filed
documentary evidence in defense. They
have filed paper no. 59/A which is the
certificate issued by Janta Inter College,
Bhatauna, to the effect that accusedappellant, Raj Kumar had passed Class-
VIth in 1979-80 and his conduct has been
good. Paper No. 60A/1 is the certified copy
of the chik FIR lodged by Prahlad Singh
against Devi, Harvir, Giriya, Hari, Shanker
and Dariyav. Paper no. 60A/2 is the
certified copy of the written report of
Prahlad. Paper no. 61/A is the certified
copy of the medical report of Prahlad. The
defence has filed a copy of the FIR lodged
by Prahlad but it does not mention the
name of Mahavir.

14. It has been argued on behalf of the
appellants that FIR has been lodged after a
gap of 81⁄2 hours after much delay. It has
been argued that informant Pershadi is not
an eye witness and he was not present at
the place of occurrence. It has also been
stated that only one accused, Bhoora used
sharp-edged weapon balkati (gandasa) for
causing injury to Mahavir. The other
accused was having a lathi in his hand.
There is no evidence of common intention.
Accused-appellant, Raj Kumar cannot be
held guilty for offence u/s 324 r/w 34 I.P.C.
It has also been argued that on the date of
occurrence of the alleged incident, the
informant Pershadi has caused injury to
father of maternal uncle of the

15. Per contra, learned A.G.A. has
argued that on the basis of oral and
documentary evidence, the prosecution has
proved the charge against the accusedappellants beyond all reasonable doubts
and they have been rightly convicted u/s
323/34 and 324/34 I.P.C. and sentenced
accordingly.

16. Heard learned counsel for both the
parties
and
perused
the
impugned
judgement and order as well as the record
of the trial court.

17. The injured PW1 Mahavir has
stated in his evidence that one or two days
before the incident, he and his father while
returning from their kolhu, saw accusedappellants and one other person firing at
their tubewell. Accused-appellant and the
third person threatened them that they will
not
tell
anyone
about
the
incident.
Although PW1 Mahavir and his father did
not inform anyone about the incident but
the accused-appellant had apprehension
that they have informed others about the
firing incident. Due to that enmity, on the
date of occurrence when injured Mahavir
and his father Pershadi were standing
outside of their house, accused-appellants
and one other person attacked. Accusedappellant Raj Kumar was having lathi in his
hand and accused-appellant Bhoora was
holding balkati (gandasa) with which both
of them attacked. On their shouting, PW2
Vikram and Bhoja arrived there seeing
them on the place of occurrence. PW1
12 All. Raj Kumar & Anr. Vs. State of U.P.
799
Mahavir has also stated in his evidence that
his mother and brother carried him to
District Hospital, Khurja, where he was
medically examined and given medical
treatment. PW1 Mahavir has deposed that
on being informed, his father Pershadi
reached
the
hospital.
Thereafter,
he
prepared the written report and lodged the
FIR
in
P.S.-
Jahangirpur,
District-
Bulandshahr.

PW2 Vikram Singh, eye witness
of the occurrence, has also stated in his
evidence that on the date of occurrence, he
saw the appellant, Raj Kumar and Bhoora,
attacking injured Mahavir with lathi and
balkati (gandasa) respectively. He and
Bhoja reached there and saved the injured.
On their reaching there, accused-appellants
fled from the place of occurrence. PW2
Vikram Singh has also proved in his
evidence that injured Mahavir was carried
by his mother to District Hospital, Khurja.
He was admitted and underwent medical
treatment.

18. PW3 Pershadi has deposed in his
evidence that he was informed by Bhoja
about the incident while he was at his home
situated at P.S.- Jahangirpur. He reached
the hospital where he found his son,
Mahavir admitted in the hospital in an
injured state. He inquired from his son
about the incident and thereafter, got the
written report prepared by some Satyaveer
and submitted it at P.S.- Jahangirpur. After
the
written
report
(Ext.Ka.1)
was
submitted,
FIR
was
lodged
against
appellants, Raj Kumar and Bhoora.

19. PW3 Pershadi has also stated in
his evidence that the possession of bloodstained clothes (material Exts.1 to 3) was
taken by the Investigating Officer and
prepared the memo regarding it.

20. The oral evidence of injured
Mahavir is corroborated by the evidence
given by the witnessees, PW2 Vikram
Singh and PW3 Pershadi. The evidence of
aforesaid witnesses PW1, 2 and 3 appears
to be true, trustworthy and reliable and
even after lengthy cross-examination done
by the defence, nothing has been found in
their cross-examination so as to make their
evidence untrue or unreliable. The oral
evidence of PW1, 2 and 3 have been
corroborated by the documentary evidence,
namely, written report, chik FIR, report
regarding G.D. copy, site plan of the place
of occurrence and charge-sheets submitted
against the accused-appellants, Raj Kumar
and Bhoora.

21. The injury no. 1 of PW1 Mahavir
is an incised wound on the back of left side
on the head. According to the opinion of
PW4 Dr. Ravi Kumar Sharma, it has been
caused by sharp-edged weapon and x-ray
has been advised but in the x-ray report, no
fracture was found in the skull bone of the
injured. 2-3 days prior to the occurrence,
appellant, Raj Kumar and Bhoora, had
threatened
the
injured
Mahavir
and
Pershadi from disclosing to anyone about
firing done by them.

22. PW1 Mahavir, PW2 Vikram
Singh and PW3 Pershadi have deposed in
their evidence that the accused-appellants
had apprehension that injured, Mahavir and
his father, Pershadi had told about their
illegal activities to the villagers. On the day
of occurrence, accused-appellants, Raj
Kumar and Bhoora, chased them and in
pursuance of common intention, caused
injury to PW1 Mahavir as mentioned
above.

23. Thus, from the evidence produced
by the prosecution, motive of the accused-
800 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants to commit the offence has been
sufficiently proved by the prosecution.

24. PW1 Mahavir, PW2 Vikram
Singh and PW3 Pershadi have stated that
injured Mahavir's father was not present on
the
place
of
occurrence.
After
the
occurrence, the injured was carried to
District Hospital, Khurja, where he had
undergone medical examination and was
referred to medical treatment. On being
informed by witness Bhoja, informant
Pershadi reached the Khurja hospital and
after being informed by his son Mahavir
about the occurrence, he went to P.S.-
Jahangirpur and lodged the FIR. Thus, the
prosecution has sufficiently explained the
alleged delay in lodging of the FIR.

25. The documents filed by accusedappellants in defence have not been proved
by any witness. Thus, reliance cannot be
placed on them.

26. Accused-appellants have proved that
accused father had lodged the FIR against the
informant therefore in rebuttal, the present case
was lodged against them. From the perusal of
the FIR filed by accused-appellant, it transpires
that in the list of accused, the name of Pershadi
is absent. The defence has not made it clear that
who are the named accused in the FIR lodged
by Prahlad. Thus, the accused-appellants do not
get any benefit from the documents filed by
them. Thus, the documents filed by the
accused-appellants
does
not
rebut
the
prosecution case.

27. From the appreciation of the evidence
on record, this Court has made considered
opinion that prosecution has proved the charge
u/s 324/34 and 323/34 I.P.C. against the
appellants beyond all reasonable doubts.

28. Learned counsel for the appellants
has argued that the occurrence took place
on 17.02.1983 about 39 years before and on
the date of occurrence, accused-appellants
were in their teens. They may be granted
benefit of the Probation of Offenders Act,
1958.

29. 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.
12 All. Raj Kumar & Anr. Vs. State of U.P.
801

(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.

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

360.
Order
to
release
on
probation of good conduct or after
admonition.

(1) When any person not under
twenty- one years of age is convicted of an
offence punishable with fine only or with
imprisonment for a term of seven years or
less, or when any person under twenty- one
years of age or any woman is- convicted of
an offence not punishable with death or
imprisonment for life, and no previous
conviction is proved against the offender, if
it appears to the Court before which he is
convicted, regard being had to the age,
character or antecedents of the offender,
and to the circumstances in which the
offence was committed, that it is expedient
that the offender should be released on
probation of good conduct, the Court may,
instead of sentencing him at once to any
punishment, direct that he be released on
his entering into a bond with or without
sureties, to appear and receive sentence
when called upon during such period (not
exceeding three years) as the Court may
direct and in the meantime to keep the
peace and be of good behaviour:

Provided that where any first
offender is convicted by a Magistrate of the
second class not specially empowered by
the High Court, and the Magistrate is of
opinion that the powers conferred by this
section should be exercised, he shall record
his opinion to that effect, and submit the
proceedings to a Magistrate of the first
class, forwarding the accused to, or taking
bail for his appearance before, such
Magistrate, who shall dispose of the case in
the manner provided by sub- section (2).

(2)
Where
proceedings
are
submitted to a Magistrate of the first class
as provided by sub- section (1), such
Magistrate may thereupon pass such
sentence or make such order as he might
have passed or made if the case had
originally been heard by him, and, if he
thinks
further
inquiry
or
additional
evidence on any point to be necessary, he
802 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.

31. 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
12 All. Raj Kumar & Anr. Vs. State of U.P.
803
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.

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

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

33. 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
804 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

34. 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.

35. 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 324/34 and
323/34 I.P.C. is upheld and is not required
to be disturbed.

36. However, instead of sending the
appellants to jail, they shall get the benefit
of Section 4 of the Probation of Offenders
Act, 1958. Consequently, the appellants
shall file 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
the period of one year. If there is breach of
any of the conditions, they will subject
themselves to undergo sentence before the
court below. It is also desirable that
accused-appellants may be directed to
deposit Rs.4,000/- each as cost and
compensation in this case within two
months.
From
the
aforesaid
amount
deposited
by
the
accused-appellants,
Rs.5,000/- shall be paid to injured Mahavir
or in case of his death to his legal
representatives. The bonds and sureties
aforesaid be filed by the accused persons
within two months from the date of the
judgment in the court concerned as per law
and rules. In case surety bonds and
compensation is not deposited, appellants
shall be sentenced to simple imprisonment
for one year.

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

38. Let a certified copy of this order
along with record be sent to the court
concerned for compliance.
----------
(2022) 12 ILRA 804
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE

THE HON'BLE MRS SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 1447 of 2013
With
Criminal Appeal No. 2710 of 2013

Kallu Yadav ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pramod Kumar Srivastava, Sri Mohd.
Samiuzzaman Kha, Sri Nisar Uddin, Sri
Moeez Uddin

Counsel for the Opposite Party:
G.A., Sri Rahul Kumar Tripathi

(A) Criminal Law - Criminal Procedure
Code, 1973 -Sections 207 & 313 - Indian
Penal Code, 1860 -Sections 201, 302 &
364 - India Evidence Act, 1872 - Section -
27 - Criminal Appeal - challenging the order of
Conviction & Sentence - U/s 302 for Life
imprisonment with fine, U/s 201 for 3 Years RI
with fine & U/s 364 for 5 Years RI with fine -