Suresh Kumar Gupta, J
1. Heard Mr. S.H. Ibrahim, learned counsel for the appellant, learned A.G.A. for the State as well as perused the record.
2. The present appeal has been preferred against the judgment and order dated 26.7.2003 passed by the Additional Sessions Judge Court No. 7, Lucknow in S.T. No. 584 of 1998 arising out of crime no. 151 of 1992 concerning Police Station- Hasanganj, District- Lucknow convicting and sentencing the appellant under Section 307 I.P.C. to undergo 5 years rigorous imprisonment and fine of Rs. 5000/- in default of payment of fine to undergo 2 months simple imprisonment.
3. The brief facts of the present case emerges as such F.I.R. of the alleged incident has been lodged by first informant, Raj Kumar Singh with the allegation that on 29.3.1992 at about 9:30 p.m. some persons had come at the house of informant for celebrating 'Holi' festival. After celebrating the Holi when first informant and his elder brother were going to see off then on the way son of Shiv Raj Singh opened fire from Awasthi Jee's roof with intention to kill. Due to the alleged incident of firing, the first informant, his elder brother and other persons have got several injuries on the body. On the basis of above allegations, the F.I.R. was lodged against Shailendra Singh(the present appellant), s/o Shiv Raj Singh under Sections 324/307 I.P.C.
4. Investigation of the present case was entrusted to the Investigating Officer. During the course of investigation, the name of Shailendra Singh(the present appellant), s/o Shiv Raj Singh first time came into light. Chiranjeet Lal, Mahendra Pratap Singh, K.K. Singh and R.K. Singh have got injuries in the present incident. During the course of the investigation, Investigating Officer collected the injury report of all the injured persons and prepared site map of incident. The Investigating Officer also recorded the statement of witnesses and after completing the formalities of the investigation filed charge sheet against the appellant under Section 307 I.P.C. Charge-sheet was submitted in the Magistrate Court wherein the case was committed to the court of sessions on 16.4.1998 where it was registered as S.T. No. 584 of 1998. The charges were framed against the appellant under Section 307 I.P.C. on 15.6.1998. The charges were read over to the appellant in Hindi. The appellant denied the charges levelled against him and claimed to be tried.
5. During the course of the trial following witnesses were examined by the prosecution, which are read as under:-
(i) P.W.-1 Raj Kumar Singh, who is complainant and also injured, has substantiated the entire version of the prosecution. Thus, the prosecution fully established the case against the appellant. P.W.-1 has proved the written report as Ext. Ka-1.
(ii) P.W.-2-Krishna Kumar Singh is also another injured eye-witness.
(iii) P.W.-3 - Mahendra Pratap Singh is also another injured eye- witness.
(iv) P.W.-4-Om Prakash Srivastava, who is also radiologist, has proved the X-ray report of Mahendra Pratap Singh as Ext. Ka-2, X-ray report of Krishna Kumar Singh as Ext. Ka-3 and X-ray report of Raj Kumar Singh as Ext. Ka-4.
(iv) P.W.-5- N.K. Kapil, the Investigating Officer, who proved the site plan as Ext. Ka-5, charge-sheet as Ext. Ka-6, chik F.I.R. as Ext. Ka-7 and G.D. No. 62 as Ext. Ka-8.
Injury report and supplementary affidavit of the injured was also admitted by the prosecution under Section 294 Cr.P.C. The medical report of Chiranjeet Lal was Ext. Ka-9, medical report of Mahendra Pratap Singh was Ext. Ka-10, medical report of Krishna Kumar Singh was Ext. Ka-11, medical report of R.K. Singh was Ext. Ka-12. X-ray report of the Chiranjeet Lal was Ext. Ka-13, supplementary report of Krishna Kumar Singh was Ext. Ka-14 and supplementary report of Raj Kumar Singh was Ext. Ka-15.
Thus, the prosecution relied upon oral evidences of P.W.-1 to P.W.-5 and relied upon documentary evidence of Ext. Ka-1 to Ext. Ka-15.
6. After recording the testimony of the witnesses, the statements of the accused/appellant was recorded under Section 313 Cr.P.C. by the trial court explaining the entire evidence and other incriminating circumstances against the appellant. In the statement recorded under Section 313 Cr.P.C. , the appellant denied the entire prosecution story in toto he has stated that the appellant has been falsely implicated by the first informant due to personal vengeance. He also denied open fire in order to commit murder. But he did not choose to lead any evidence in his defence.
7. After hearing learned counsel for both the parties and appreciating the oral and documentary evidence available on record, the learned trial court convicted the accused/appellant as aforesaid. Being aggrieved with the order dated 26.7.2003, the present appeal has been filed by the appellant.
8. Learned counsel for the appellant submitted that in this matter four persons have got injuries, which shall be established by supplementary report of Ext. Ka-14 and Ext. Ka-15. In the supplementary affidavit doctor opined that all the injured have got gun shot injuries by some fire weapon and clearly stated that in supplementary report that injuries was simple in nature. As per injury report only metallic density was found. So, learned counsel for the appellant argued that in this matter four persons have got injuries but Chiranjeet Lal,who was also injured, was not produced by the prosecution to prove its case. Learned counsel for the appellant also argued that prosecution miserably failed to establish the motive. He further submitted that occurrence has taken place in the night and there is no source of light is mentioned in the F.I.R., so the identity of the appellant is also doubtful. Learned counsel for the appellant submitted that if the court came to the conclusion that the alleged injuries was caused by the appellant then leniency be shown in favour of the appellant. Lastly, learned counsel for the appellant submitted that the appellant is neighbour of the injured and the matter is pertained to the year, 1992 and thus, 31 years have passed.
9. Learned counsel for the appellant further submitted that the injuries, which were inflicted to the injured, are simple in nature. All the injuries which were inflicted to the injured are on non vital part of the body. The injuries were not life threatening. If the case of the prosecution is accepted as such, the offence does not travel beyond the scope of Section 324 I.P.C. Learned counsel for the appellant submitted that benefit of probation be given to the appellant, therefore, he prays to release the appellant on probation.
10. Learned A.G.A. vehemently opposed and submitted before the Court that the prosecution has fully established the charges against the appellants. Therefore, learned trial court after appreciating the evidence available on record rightly convicted the appellants.
11. Considering the nature of injuries, which were inflicted to the appellant, I am of the considered opinion that injuries caused to the appellant by the fire arm were simple in nature. As per supplementary report of the injuries, I am also of the considered opinion that offence does not travel beyond Section 324 I.P.C. Therefore, the conviction of appellant is altered from Section 307 I.P.C. to Section 324 I.P.C. Thus, the conviction of the appellant under Section 324 I.P.C. is hereby confirmed. It is also an admitted fact that period of incarceration of the appellant is three months. The appellant has no previous criminal history. Presently, the appellant and injured are well rooted in the society. 31 years had already passed and no useful purpose will be served to send the appellant in jail again. Therefore, considering the entire facts and circumstances, appellant deserves for probation.
12. Since learned counsel for the appellant restricted his arguments to grant benefit of probation, therefore, in these circumstances, It would be appropriate to quote Section 360 Cr.P.C., 361 Cr.PC. reads as follows:-
Section 360 Cr.P.C. reads as follows:
"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 subsection 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 recognisance, 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 warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and 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 1951), 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."
Section 361 Cr.P.C. reads as under:-
361. Special reasons to be recorded in certain cases. Where in any case the Court could have dealt with,-
(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958 ), or
(b) a youthful offender under 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, but has not done so, it shall record in its judgment the special reasons for not having done so.
Section 3, 4 and 5 of the Probation of First Offenders Act reads as under:-
Section 3- Power of court to release certain offenders after admonition.
When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.
Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
Section 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 sub-section (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.
Section 5-Power of court to require released offenders to pay compensation and costs.
(1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay--
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under sub-section(1) may be recovered as a fine in accordance with the provisions of sections 386 and 387 of the Code.
(3) A civil court trying any suit, arising out of the same matter for which the offender is prosecuted, shall take into account any amount paid or recovered as compensation under sub-section (1) in awarding damages.
13. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?
14. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:
"While the award or refusal of compensation in a particular case may be within the court's discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."
15. Section 357 Cr.P.C. and Section 5 of the Offenders Act empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victim that he is not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 Cr.P.C. depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay, which the Court has to conduct a summary inquiry as well as considering the submission of learned counsel for appellant as earlier, this Court is of the view that benefit of Section 4 of the Probation of First Offender Act, 1958 should be provided to the appellants.
16. Thus the appeal is partly allowed. The conviction as directed by trial court is altered from 307 I.P.C. to 324 I.P.C. and on the point of sentence it is directed to be released the appellant on probation and under section 4 of the U.P. of the Probation of Offenders Act with stipulated condition that he will keep peace and good conduct for one year subject to furnishing personal bond of Rs.40,000/- and two sureties of the like amount before the Court.
17. Considering the law propounded by Hon'ble Apex Court and as per provisions of Section 357 Cr.P.C. and Section 5 of the Probation of the Offenders Act, 1958, I am of the view that compensation should be awarded to the injured persons, namely, Raj Kumar Singh, Krishna Kumar Singh, Mahendra Pratap Singh and Chiranjeet Lal. So the compensation of Rs. 40,000/-is imposed upon the appellant and out of Rs. 40,000/-, Rs. 10,000/- be paid to the each injured persons, namely , Kumar Singh, Krishna Kumar Singh, Mahendra Pratap Singh and Chiranjeet Lal. In case of death of any injured persons, same shall be payable to legal heirs of the injured persons. If the appellant fails to pay alleged amount within fifteen days from the date of production of certified copy of this order, then he shall undergo simple imprisonment of one year.
18. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence.
19. Office is directed to communicate this order to the trial court concerned. The trial court record be sent back.
