# Ram Kishan @ Kishan Lal & Anr. (On Interim Bail) v. State of U.P

- **Citation:** (2023) 4 ILRA 1031
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Criminal Appeal No. 1599 of 1995
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishan-kishan-lal-anr-on-interim-bail-v-state-of-u-p-49788
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 323/34 & 427/34 Probation of
Offenders Act, 1958 - Sections 4 & 5 - The
Code of Criminal Procedure, 1973 -
Sections
313,
357,
360
-
Rigorous
imprisonment - Appeal against conviction
- As per FIR - On 26.06.1990, appellants
stopped the Bus, compelled the driver,
conductor and passengers to alight from
the bus - Appellants in furtherance of
common intention with such knowledge
caused injury to passenger, if death took
place, they would be guilty of culpable
homicide not amounting to murder -
Appellants also voluntarily caused injury
to driver - They pelted stones on the bus,
resulting in breaking of windowpanes,
causing damage of Rs. 15000/- Bus driver
(PW-1) lodged the FIR - Injuries were
simple in nature, caused by hard blunt
object - Prosecution examined PW-1 to
PW-4 as witnesses of fact, PW-5, PW-6 as
formal witnesses - From the evidence of
PW-4, it transpires that 4-5 days earlier to
the
occurrence,
there
was
quarrel
between PW-1 and accused persons, they
wanted
to
travel
by
bus
without
purchasing a ticket - Nothing has emerged
in cross examination of PW-4 which may
raise doubt about veracity of St.ment -
Evidence of PW-1, PW-2 and PW-4 proved
prosecution
case
-
Considering
the
evidence PW-5, defence fails to prove that
PW-1 and PW-2 received injury due to
assault of villagers - Hence, no illegality in
impugned order, conviction is upheld -
Directions accordingly. (Para 3, 4, 5, 10,
23, 25, 45)

Appeal is disposed of. (E-13)

List of Cases cited:

## Text

_Characters 0–39,737 of 46,122. This is a partial read: ask again with offset=39737 for what follows._

4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1031
(2023) 4 ILRA 1031
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1599 of 1995

Ram Kishan @ Kishan Lal & Anr.
 ...Appellants (On Interim Bail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri V.S. Singh, Sri Ajay Sengar

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 323/34 & 427/34 Probation of
Offenders Act, 1958 - Sections 4 & 5 - The
Code of Criminal Procedure, 1973 -
Sections
313,
357,
360
-
Rigorous
imprisonment - Appeal against conviction
- As per FIR - On 26.06.1990, appellants
stopped the Bus, compelled the driver,
conductor and passengers to alight from
the bus - Appellants in furtherance of
common intention with such knowledge
caused injury to passenger, if death took
place, they would be guilty of culpable
homicide not amounting to murder -
Appellants also voluntarily caused injury
to driver - They pelted stones on the bus,
resulting in breaking of windowpanes,
causing damage of Rs. 15000/- Bus driver
(PW-1) lodged the FIR - Injuries were
simple in nature, caused by hard blunt
object - Prosecution examined PW-1 to
PW-4 as witnesses of fact, PW-5, PW-6 as
formal witnesses - From the evidence of
PW-4, it transpires that 4-5 days earlier to
the
occurrence,
there
was
quarrel
between PW-1 and accused persons, they
wanted
to
travel
by
bus
without
purchasing a ticket - Nothing has emerged
in cross examination of PW-4 which may
raise doubt about veracity of St.ment -
Evidence of PW-1, PW-2 and PW-4 proved
prosecution
case
-
Considering
the
evidence PW-5, defence fails to prove that
PW-1 and PW-2 received injury due to
assault of villagers - Hence, no illegality in
impugned order, conviction is upheld -
Directions accordingly. (Para 3, 4, 5, 10,
23, 25, 45)

Appeal is disposed of. (E-13)

List of Cases cited:

1. Leela Ram (dead) through Dull Chandra Vs
St. of Har. & ors., (2000) SCC (Crl) 222

2. Krishna Mochi & ors. Vs St. of Bihar, (2002)
SCC (Crl.) 1220

3. St. of M. P. Vs Vikram Das (2019) 4 SCC 125

4. Manohar Singh Vs St. of Raj. & ors. (2015) 3
SCC 449

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

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

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

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

Heard Sri Ajay Sengar, learned
counsel for the appellants and Sri Sunil
Kumar Tripathi, learned A.G.A. for the
State.

2. This criminal appeal has been
instituted against the judgement and order
dated 15.09.1995 passed by Additional
Sessions Judge, Lalitpur in Sessions Trial
No. 64 of 1993, State of U.P. Vs. Ram
Kishan and another, arising out of Case
Crime No. 105 of 1909 u/s 308, 323 and
427 I.P.C., P.S.- Mahrauni, District-
Lalitpur.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES

3. By the impugned order, the trial
court has convicted the appellants, Ram
Kishan and Gore Lal u/s 323 r/w 34 and
427 r/w 34 I.P.C. and sentenced them to
one year rigorous imprisonment in both the
sections. The trial court also directed that
both the sentences shall run concurrently.
The State has not filed any appeal against
acquittal of the accused from the charge
under Section 308 I.P.C. Thus, the
judgment and order relating to acquittal of
accused under Section 308 I.P.C. has
become final.

4. Shorn of unnecessary details, the
prosecution case in brief if that on
26.06.1990
at
4
pm
near
Chhayan
Kumhairi Tiraha Road, Police Station
Mahraun, the appellants-accused Ram
Kishan and Gore Lal stopped the Bus No.
U.T.P. 4113 and compelled the driver,
conductor and passengers to alight from the
bus
then
the
appellants-accused
in
furtherance of common intention with such
knowledge caused injury to Jamuna Prasad
passenger of Bus No. U.T.P. 4113 that if
his death took place, they would be guilty
of culpable homicide not amounting to
murder.
The
appellants-accused
also
voluntarily caused simple injury to Prem
Narayan, the driver of the aforesaid Bus.
They also pelted stones on the bus resulting
in breaking of its 10 to 12 nos. of window
panes causing damage of about Rs. 15000/-
.

5. The first information report was
lodged on the basis of written report
(Ext.Ka.1) of bus driver, Prem Narayan on
26.06.1990 at 18.05 hours as Case Crime
No. 105 of 1990 u/s 308, 323, 427 I.P.C.
was registered in Police Station- Mahrauni,
District-
Lalitpur.
The
chik
F.I.R.
(Ext.Ka.5) and carbon copy of the G.D.
(Ext.Ka.6) is on record.

6. On 26.06.1990 at 6.30 p.m., Dr.
Pratap Singh, Medical Officer, Primary
Health
Centre,
Mahrauni,
examined
Jamuna Prasad and prepared injury report
(Ext.Ka.7). Following injuries were found
on the person of injured Jamuna Prasad :-

(i) Lacerated wound 5 cm x 1 cm
bone deep left side of head obliquely 11 cm
above left ear. Fresh blood present.

(ii) Contused swelling 7 cm x 4
cm in front and outside of left forearm 9 cm
above wrist joint

(iii) Contusion 15 cm x 2.5 cm left
side of back 23 cm below the tip of
shoulder.

Injury nos. (ii) and (iii) were
simple in nature. They were fresh and
caused by blunt object. Injury no. (i) was
kept under observation and x-ray was
advised.

7. On 26.06.1990 at 6.50 p.m., Dr.
Pratap Singh, Medical Officer, Primary
Health Centre, Mahrauni, examined Prem
Narayan and prepared injury report
(Ext.Ka.8).
Following
injuries
were
found on the person of injured Prem
Narayan :-

(i) Contusion with swelling 15 cm
x 4 cm on left side of left shoulder.

(ii) Contusion 8 cm x 2.5 cm on
left side of the back 4 cm below injury
no.(i).

(iii) Contusion 8 cm x 2.5 cm on
right side of back.

All the injuries were simple in
nature and caused by hard blunt object.
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1033

The formal proof of injury report
was admitted by learned counsel for the
applicant on which (Exts.Ka.7 and Ka.8)
was inscribed.

8. The case was investigated by
Investigating Officer PW5 A.S.I. Shiv
Shanker Tiwari. He inspected the place of
occurrence and on the pointing out of
informant Prem Narayan and prepared its
site plan (Ext.Ka.3). He arrested the
accused
persons
on
03.07.1990
and
interrogated them. He also recorded the
statements of the witnesses and after
completion of investigation, submitted
charge-sheet (Ext.Ka.4) in the court.

9. On 13.08.1993, charge u/s 308 r/w
34, 323 r/w 34 and 427 r/w 34 I.P.C. was
framed against accused-appellants, Ram
Kishan and Gore Lal. They denied the
charges and claimed trial.

10.

The
prosecution
examined
informant injured PW1 Prem Narayan,
injured PW2 Jamuna Prasad, writer of the
written report and owner of bus PW3 Satish
Kumar Jain, eye witness and conductor of
bus PW4 Kailash Narayan as witnesses of
fact whereas Investigating Officer PW5 S.I.
Shiv Shanker Tiwari, the then Constable
Clerk at Police Station- Mahrauni PW6
Head
Constable
Karan
Singh
were
examined as formal witnesses.

11. On 01.09.1995, the court recorded
the statement u/s 313 Cr.P.C. of accused
persons, Ram Kishan and Gore Lal. They
denied the prosecution case that on the
alleged date, time and place of occurrence,
they stopped the Bus No. U.T.P. 4113,
assaulted the driver Prem Narayan, conductor
Kailash and passenger sitting therein, Jamuna
Prasad with lathi, causing them fatal injuries
and caused damage worth Rs.15,000/- to the
bus by pelting stones and lathi, breaking its
10-12 window panes. They stated that the
witnesses were giving false evidence.

12. Accused-appellants did not produce
any witness in defence.

13. It has been argued on behalf of
accused-appellants
that
without
proper
appreciation of evidence, the trial court
illegally convicted them of the alleged
offence and sentenced them vide impugned
judgement and order. It has also been argued
that the conviction and sentence is without
merit. It has been prayed that the sentence
awarded to them be set-aside.

14. Per contra, learned A.G.A. on
behalf of the State has submitted that on the
basis of oral and documentary evidence, the
charge against the accused-appellants, Ram
Kishan alias Kishan Lal and Gore Lal, has
been proved beyond all reasonable doubt and
the trial court has rightly convicted and
sentenced the appellants.

15. According to the prosecution case
occurrence took place on 26.06.1990 at 4 pm
at Kumhairi Tiraha Road. The medical
examination of injured Jamuna Prasad and
Prem Narayan was done on 26.06.1990 at
6.30 pm and 6.50 pm. From their injury
reports Exhibit Ka-7 and Exhibit Ka-8, it is
clear that in the opinion of the Medical
Officer, the injuries received by both the
injured were fresh in nature. Accused have
admitted the injury report of injured Jamuna
Prasad and Prem Narayan. Therefore, it can
be inferred that injured Jamuna Prasad and
Prem Narayan may have received the injury
on 26.06.1990 at 4 pm at the time of alleged
occurrence.

16. P.W.-1 Prem Narayan, who was
the driver of Bus No. U.T.P. 4113 has
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
stated in his evidence dated 18.07.1995 that
the incident of Mar-peet had taken place
about five years ago at 4 pm. At that time,
he was the driver of bus No. U.T.P. 4113.
He was driving the bus from village
Kumhedi to Karitoran. Kailash was the
conductor of the bus. He had left Kumhedi
village at 3.20 pm. After driving 4-5 km
when he reached Chhayan Kumhairi
Tiraha, he met accused Ram Kishan and
Gore Lal who was present in the Court.
They got the bus stopped and asked them to
come out of the bus. They stood before the
bus. Accused Ram Kishan and Gore Lal
had Lathi in their hands. PW-1 Prem
Narayan stated that after coming down
from the bus he sat on a nearby Pulia. The
accused stuck a Lathi on his back.
Passenger Jamuna Prasad came there to
save him. On receiving the Lathi blow he
became unconscious. At that time Kailash,
conductor
and
Komal,
cleaner
were
standing
nearby.
When
he
regained
consciousness he returned Mahrauni by
another bus. He informed the owner of the
bus Seth Satish Jain about the incident. He
had informed Seth Satish Jain that the
passengers had informed him that Ram
Kishan and Gore Lal had assaulted him.
PW-1 admitted that he is literate and he had
signed the report after reading it. The
written report was written by Satish Jain.
PW-1 stated that according to the opinion
given by him, the owner Satish Jain
prepared the written report. After reading
the report he signed it. PW-1 proves written
report Exhibit Ka-1.

17. In his cross examination by the
prosecution, PW-1 Prem Narayan stated
that after receiving injury he became
unconscious and the window panes of the
bus was broken by accused Ram Kishan
and Gore Lal. Due to breaking of the wind
shield, there was damage of about Rs.
8000/- to 9000/-. P.W.-1 further stated in
his cross examination that he had informed
the I.O. that about 4-5 days earlier to the
incident accused Gore Lal and Ram Kishan
had quarrelled with him when he asked
them to purchase a ticket for journey on the
bus. Due to this enmity the accused had
committed Marpeet with him. P.W.-1 Prem
Narayan stated in his cross examination
that he routinely stops the bus at Chhayan
bus stop. Quarrel was going on between the
villagers of Chhayan village and the
persons driving the bus. He admitted that
when he alighted from the bus there was no
stampede near the bus and the passengers
were not running here and there. When he
was sitting on the Pulia he received injuries
on his back. PW-1 admitted that Satish
Kumar Jain had shown him the written
report and after reading it he found that it
was correct and therefore he signed it.

18. Although PW-1 Prem Narayan
has not clearly mentioned in his statement
that accused Ram Kishan and Gore Lal beat
him but he has stated that accused asked
him to stop the bus and alight from the bus.
They were carrying Lathi in their hands. He
has also stated that when he was sitting on
the Pulia, accused persons assaulted with
Lathi on his back. From the statement of
PW-1 it is clear that he is deliberately
avoiding to mention the name of the
accused although he has admitted the fact
of accused beating him with Lathi on his
back. He has admitted that he read the
written report and after finding that it is
correct he has signed it. Thus, he supports
the prosecution case that on 26.06.1990 at 4
pm at Kumhedi Tiraha accused persons
stopped the bus. They were having Lathi in
their hands and beat P.W.-1 with Lathi on
his back. PW-1 has also admitted that he
had signed the written report which
correctly mentions date, time, place of the
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1035
occurrence and participation of the accused
Ram Kishan and Gore Lal in the incident of
beating him and causing damage to the
window panes of the bus.

19. The author of the written report,
P.W-3 Satish Kumar Jain has stated in his
evidence that on his arrival at Mahrauni,
driver Prem Narayan informed him that
quarrel took place at Chhayan Tiraha. He
had mentioned all the facts in the written
report as told by the driver Prem Narayan.
The written report was read before Prem
Narayan and after hearing it he signed it.
The written report (Exhibit Ka-1) is in his
writing and his signature is affixed therein.
P.W.-3 Satish Kumar Jain stated in his
cross examination that Prem Narayan had
told him the names of the accused persons
beating him. PW-3 has emphatically
asserted that the written report was written
as told by Prem Narayan. Nothing has been
found in the cross examination of PW.-3
which may raise doubt about the veracity of
his statement.

20. Passenger of bus No. U.T.P. 4113,
P.W.-2 Jamuna Prasad deposed in his
evidence that when the bus reached
Chhayan Tiraha, two accused persons Gore
Lal and Ram Kishan came there holding
Lathi in their hands. P.W.-2 Jamuna Prasad
identified accused Gore Lal and Ram
Kishan who were present in the Court. He
has stated that these accused persons
caused the bus to stop and asked Prem
Narayan to alight from the bus. When Prem
Narayan alighted and was sitting on the
Pulia they started beating him with Lathi.
PW-2 stated that when he forbid the
accused to beat Prem Narayan, accused
assaulted him with Lathi. He received one
Lathi blow on his head and one on his
back. At that time Kailash and other
passengers came there to save them.
Accused persons broke the window panes
of the bus. PW-2 Jamuna Prasad admitted
that accused were earlier not known to him
but at the time of incident he came to know
about
their
names.
Passengers
were
mentioning the name of the accused
persons. At that time no bus of Jhansi
Madanpur was standing there. He returned
Mahrauni by another bus. He has no enmity
with the accused persons. At Mahrauni bus
station Prem Narayan met Satish Jain.
From the evidence of PW-2 Jamuna Prasad,
it is clear that when he reached there to
protect Prem Narayan accused persons beat
him with Lathi. The x-ray of the skull of
Jamuna Prasad was done on 27.06.1990 in
District Hospital Lalitpur but no fracture
was found in it and the injury received by
Jamuna Prasad was simple in nature. PW.-2
corroborates the prosecution case that
accused Ram Kishan and Gore Lal beat
him and broke the window panes of the
bus.

21. In the cross examination of PW-2
by the defence nothing emerges which may
raise doubt about the veracity of his
statement. There is nothing found in his
cross examination that due to enmity he is
falsely implicating the accused persons.

22. The conductor of the bus, PW-4
Kailash has corroborated the evidence of
PW-1 Prem Narayan and PW-2 Jamuna
that when the bus reached Chhayan Tiraha
near the Pulia at 4 pm accused Ram Kishan
and Gore Lal stopped the bus and they
were having Lathi in their hands. They
caused the driver Prem Narayan to alight
from the bus and started beating him with
Lathi. When Jamuna Prasad reached there
to save the driver, the accused persons also
beat him with Lathi. The witness has stated
in his evidence that in the incident Jamuna
Prasad and Prem Narayan had received
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
injuries. After beating Prem Narayan and
Jamuna Prasad accused broke the window
panes of the bus and ran away from the
place of occurrence. PW-4 has stated in his
evidence that about 4-5 days earlier there
was quarrel between Prem Narayan and the
accused persons as the accused persons
wanted to travel on the bus without
purchasing a ticket. PW-4 Kailash had
admitted that at that time a bus was
standing at Dhaura Sagar Badavara road
but there was no quarrel going on between
the villagers of Chhayan and passenger of
the bus. These villagers were not beating
the persons sitting in the bus. PW-4 has
categorically stated that there was no
accident due to other bus and no child was
killed in the accident. PW-4 has stated in
his cross examination that Prem Narayan
received Lathi blows on his back but he did
not become unconscious due to the injuries.
Jamuna Prasad received injury on his hand.
Jamuna Prasad also did not become
unconscious.

23. From the evidence of PW-4
Kailash, it transpires that 4-5 days earlier
to the occurrence, there was quarrel
between Prem Narayn and the accused
persons as they wanted to travel by bus
without purchasing a ticket. On the day of
occurrence accused persons stopped the
bus and asked the driver Prem Narayan to
alight from bus and they beat him with
Lathi and when Jamuna Prasad reached to
save him, they assaulted him also with
Lathi, causing head injury to him.
Nothing has emerged in the cross
examination of PW-4 Kailash which may
raise
doubt
about
veracity
of
the
statement. Thus, the prosecution case is
proved by the evidence of injured PW-1
Prem Narayan and PW-2 Jamuna Prasad
and eye witness PW-4 Kailash. The oral
evidence of PW-1 Prem Narayan, PW-2
Jamuna
and
PW-4
Kailash
is
corroborated
by
the
documentary
evidence, written report (Exhibit Ka-1),
chik FIR (Exhibit Ka-5), injury report of
Prem Narayan and Jamuna (Exhibit Ka-8
& Exhibit Ka-7), site plan (Exhibit Ka-3)
and charge sheet (Exhibit Ka-4).

24. It has been argued by the learned
counsel for the appellant that on the day
and time of occurrence, there was a bus
accident on the Sagar Madawara Road in
which a child of Chhayan village had
received injury, therefore, villagers of
Chhayan
village
were
beating
the
conductor and driver of that bus and during
that period when Prem Narayn and Jamuna
Prasad came there on the bus villagers also
started beating them. The argument of
learned counsel for the appellant is not
supported with evidence available on the
record. It is true that PWs Prem Narayan
and Kailash has mentioned in their
evidence that at some distance from there
another bus was standing but they had
specifically denied that the villagers were
beating the drivers and conductors of the
other bus. No suggestion has been made by
the defence to PW-1 Prem Narayan and
PW-4 Kailash that Prem Narayan and
Jamuna Prasad were beaten by the
villagers. It is clear from the evidence of
the witnesses that there was no stampede
near the bus and the passenger were not
running here and there, although there was
quarrel going on between the persons of
bus of the Madanpur and the villagers. The
defence had made suggestion to the
Investigating Officer, P.W.-5 Shiv Shankar
Tiwari that on the day of occurrence a child
had received injury due to bus accident.
After going through the G.D. of 26.06.1990
he replied that on that day in the GD there
is no mention of any bus accident causing
injury to a child. The I.O. denied that any
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1037
report was lodged regarding bus accident of
a child.

25. Considering the evidence of the
witnesses, specifically the Investigating
Officer, PW-5, S.I. Shiv Shankar Tiwari,
there is no force in the plea advanced on
behalf of the defence that Prem Narayan
and Jamuna Prasad received injury due to
assault of the villagers.

26. Accused Ram Kishan has stated in
his statement under Section 313 Cr.P.C.
that he had litigation with PW-4 Kailash,
therefore, he has given false evidence
against him but no suggestion has been
made in the cross examination of PW-4
regarding his litigation with accused Ram
Kishan. Apart from this, accused Ram
Kishan has not filed any documentary
evidence
in
support
of
his
above
statements.
Under
these
facts
and
circumstances, there is no force in his plea
and it is not acceptable.

27. Learned counsel for the appellants
has attracted the attention of this Court
towards the deposition of the various
witnesses
and
stated
that
there
is
contradiction in their deposition. From the
perusal of the above mentioned statements,
it is found that witnesses have deposed
more than five years after the date of
occurrence. Therefore, minor contradiction
in the statement of the witnesses is natural.
It does not demolish their evidence.

28. In Leela Ram (dead) through
Dull Chandra vs. State of Haryana and
others, (2000) SCC (Crl) 222, the Apex
Court has held as under:

"...There are bound to be some
discrepancies between the narrations of
different witnesses when they speak on
details, and unless the contradictions are of
a material dimension, the same should not
be used to jettison the evidence in its
entirety. Incidentally, corroboration of
evidence with mathematical niceties cannot
be expected in criminal cases. Minor
embellishment, there may be, but variations
by reason therefor should not render the
evidence of eyewitnesses unbelievable.
Trivial
discrepancies
ought
not
to
obliterate
an
otherwise
acceptable
evidence...

...one hardly comes across a
witness whose evidence does not contain
some exaggeration or embellishment --
sometimes there could even be a deliberate
attempt
to
offer
embellishment
and
sometimes in their overanxiety they may
give a slightly exaggerated account. The
court can sift the chaff from the grain and
find out the truth from the testimony of the
witnesses. Total repulsion of the evidence is
unnecessary. The evidence is to be
considered from the point of view of
trustworthiness...."

Similar law has been propounded
by the Apex Court in Krishna Mochi and
others vs. State of Bihar, (2002) SCC
(Crl.) 1220.

29. Considering the facts and
circumstances of the law in the light of the
law propounded by the Apex Court, the
plea advanced by learned counsel for the
appellant is not enable and it is rejected.

30. From the discussion of the above
evidence of the case, the Court is of the
view that on 26.06.1990 at 4 pm at
Chhayan Kumhedi Tiraha in P.S. Mahrauni
appellant accused Ram Kishan and Gore
Lal stopped the bus No. U.T.P. 4113, asked
the driver Prem Narayan to alight from the
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
bus and beat him with Lathi and when
passenger Jamuna Prasad came there to
save him they beat him also with Lathi. The
accused persons broke the wind shield of
the bus causing damage of more than Rs.
50/- to the owner of the bus. Thus the
prosecution has proved the charge under
Sections 323/34 and 427/34 I.P.C. against
the appellants-accused beyond reasonable
doubt. The accused persons Ram Kishan
and Gore Lal has been rightly convicted by
the Trial Court under Sections 323/34 and
427/34 I.P.C.

31. The learned counsel for the
appellants-accused had alternately pressed
that appellants-accused be granted the
benefit of probation. It has been argued that
since the incident has taken place more
than 32 years back on 26.06.1990, the
appellants have suffered the expenses and
hardships of trial for more than about 5
years and they have undergone the agony
and uncertainty of the pending criminal
appeal for more than 25 years and apart
from this case there is no criminal
antecedents against the appellants-accused,
they may be treated leniently and instead of
sending them to jail they may be released
on probation.

32. It has also been submitted that it is
obvious from the statement of PW-5 S.I.
Shiv Shankar Tiwari that appellant accused
were arrested on 03.07.1990 and from the
bail bonds available on the trial court's
record it is clear that their bail bonds were
accepted on 11.07.1990, therefore, during
investigation and trial they have remained
in custody for eight days. Sending them
again to jail after the gap of more than
thirty two years shall not be justified.

33. The learned A.G.A. for the State
has argued that due to enmity of not letting
the appellants-accused travel on the bus
without ticket on the day of occurrence,
appellants-accused stopped the bus caused
the driver to alight from the bus and beat
him with Lathi and when Prem Narayan
and passenger Jamuna Prasad reached there
to save the driver they also beat him and
caused damage to the wind shield of the
bus. They should be punished severely so
that it may be a lesson to those indulged in
unlawful activities.

34. Indian legislature has not given
any sentencing policy, though Malimath
Committee (2003) and Madhava Menon
Committee (2008) has asserted the need of
sentencing policy in India.

35. Principle of sentencing has been
an issue of concern before the Supreme
Court in many cases and tried to provide
clarity on the issue. Apex Court has time
and again cautioned against the cavalier
manner considering the way sentencing is
dealt by High Courts and Trial Courts.

"...
It
is
established
that
sentencing
is
a
socio-legal
process,
wherein a Judge finds an appropriate
punishment for the accused considering
factual circumstances and equities. In light
of the fact that the legislature provided for
discretion to the Judges to give punishment,
it becomes important to exercise the same
in a principled manner." (para 49 of
Accused 'X' vs. State of Maharastra
(2019) 7 SCC 1)

"12. Sentencing for crimes has to
be analysed on the touchstone of three tests
viz.
crime
test,
criminal
test
and
comparative proportionality test. Crime
test involves factors like extent of planning,
choice of weapon, modus of crime, disposal
modus (if any), role of the accused, anti-
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1039
social or abhorrent character of the crime,
state of victim. Criminal test involves
assessment of factors such as age of the
criminal, gender of the criminal, economic
conditions or social background of the
criminal, motivation for crime, availability
of defence, state of mind, instigation by the
deceased or any one from the deceased
group, adequately represented in the trial,
disagreement by a Judge in the appeal
process,
repentance,
possibility
of
reformation, prior criminal record (not to
take pending cases) and any other relevant
factor (not an exhaustive list).

13. Additionally, we may note
that under the crime test, seriousness needs
to be ascertained. The seriousness of the
crime may be ascertained by (i) bodily
integrity of the victim; (ii) loss of material
support
of
amenity;
(iii)
extent
of
humiliation; and (iv) privacy breach."
(State of Madhya Pradesh vs. Udham and
others (2019) 10 SCC 300)"

36. It is also notable that "... where
minimum sentence if provided for, the
Court cannot impose less than minimum
sentence." (Para 8 of State of Madhya
Pradhesh vs. Vikram Das (2019) 4 SCC
125)

37. Section 357 Cr.P.C. provides
power to the Court to award compensation
to victim, which is in addition and not
ancillary to other sentences. While granting
just and proper compensation Court ought
to have consider capacity of the accused for
such payment as well as relevant factors
such as medical expenses, loss of earning,
pain and sufferings etc.

38. Supreme Court has reiterated need
for proper exercise of power of granting
compensation under Section 357 Cr.P.C. in
Manohar Singh Vs. State of Rajasthan
and others : (2015) 3 SCC 449 and in paras
11, 31 and 54 it is stated that:

"11....Just compensation to the
victim has to be fixed having regard to the
medical and other expenses, pain and
suffering, loss of earning and other
relevant factors. While punishment to the
accused is one aspect, determination of just
compensation to the victim is the other. At
times, evidence is not available in this
regard. Some guess work in such a
situation is inevitable. Compensation is
payable under Section 357 and 357- A.
While under section 357, financial capacity
of the accused has to be kept in mind,
Section 357-A under which compensation
comes out of State funds, has to be invoked
to make up the requirement of just
compensation."

"31.
The
amount
of
compensation, observed this Court, was to
be determined by the courts depending
upon the facts and circumstances of each
case, the nature of the crime, the justness of
the claim and the capacity of the accused to
pay."

"54. Applying the tests which
emerge from the above cases to Section
357, it appears to us that the provision
confers a power coupled with a duty on the
courts to apply its mind to the question of
awarding compensation in every criminal
case. We say so because in the background
and context in which it was introduced, the
power
to
award
compensation
was
intended to reassure the victim that he or
she is not forgotten in the criminal justice
system. The victim would remain forgotten
in the criminal justice system if despite the
legislature having gone so far as to enact
specific provisions relating to victim
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
compensation, courts choose to ignore the
provisions altogether and do not even
apply their mind to the question of
compensation. It follows that unless Section
357 is read to confer an obligation on the
courts to apply their mind to the question of
compensation, it would defeat the very
object behind the introduction of the
provision."

39. 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.

40. A similar provision finds place in
the Code of Criminal Procedure. Section
360 Cr.P.C. provides:
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1041

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
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

41. 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.

42. 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
4 All. Ram Kishan @ Kishan Lal & Anr. Vs. State of U.P.
1043
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.