Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 1236

IN THE HIGH COURT OF ALLAHABAD
NARENDRA KUMAR JOHARI, J.
Bhawani Singh and Ors. - Appellants
Versus
The State of U.P. - Respondent
Criminal Appeal No. 289 of 2002
Decided On : 01-03-2023

Advocates:
Advocate Appeared:
For the Appellant : Mohan Singh, Shrawan Kumar.

The main legal point established in this judgment is that the prosecution must prove the intention to cause death in order to convict the accused under Section 307 IPC. If the intention to cause death is not proved, the accused may be convicted under a lesser offence, such as Section 324 IPC. The court also emphasized the importance of considering the benefit of probation under the Probation of Offenders Act, 1958, for first-time offenders.

Headnote:
Probation of Offenders Act, 1958 - The High Court considered the provisions of the Probation of Offenders Act, 1958 and directed the release of the appellants on probation for good conduct, taking into consideration their first-time offenders and the maximum sentence provided under Section 324 IPC.
Fact of the Case:
The appellants were convicted for the offence under Section 307/34 IPC and sentenced to rigorous imprisonment. The prosecution's case was that the appellants, along with others, attacked the informant and fired at him, causing an injury to his shoulder. The appellants challenged the conviction and sentence on various grounds, including delay in lodging the FIR, false and fabricated evidence, lack of independent witnesses, and discrepancies in the prosecution's case. The trial court convicted the appellants based on the testimony of the injured witness and medical evidence. The High Court, after considering the evidence and arguments, altered the conviction from Section 307/34 IPC to Section 324/34 IPC and directed the release of the appellants on probation for good conduct.
Finding of the Court:
The High Court analyzed the evidence and found that the prosecution had failed to prove the intention of the appellants to cause the death of the informant. The medical evidence showed that the injury was simple in nature and not fatal. The court also considered the motive of the offence, which was the long-standing enmity between the parties. Based on these findings, the court held that the appellants should be convicted under Section 324/34 IPC instead of Section 307/34 IPC. The court further noted that the trial court had failed to consider the benefit of probation under the Probation of Offenders Act, 1958, and directed the release of the appellants on probation for good conduct.
Ratio Decidendi: The High Court held that the appellants should be convicted under Section 324/34 IPC instead of Section 307/34 IPC, as the prosecution had failed to prove the intention to cause death. The court also directed the release of the appellants on probation for good conduct, considering their first-time offenders and the provisions of the Probation of Offenders Act, 1958.
Result: The appeal was partly allowed. The conviction of the appellants under Section 307/34 IPC was set aside, and their conviction under Section 324/34 IPC was confirmed. Instead of immediate imprisonment, the appellants were directed to be released on probation for good conduct. They were ordered to surrender before the trial court and released on bail upon furnishing personal bonds and sureties. The order of sentence was modified accordingly.

JUDGMENT :

1. This Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellants Bhawani Singh, Raksha Pal Singh, Ram Bahadur Singh and Sukhnandan Singh against the judgment and order dated 26.02.2002, passed by learned Additional Session Judge/1st F.T.C., Gonda in Session Trial No.642 of 1987 (State Vs. Bhawani Singh and others). By the impugned judgment and order, the learned trial court has convicted the appellant Sukhnandan Singh for the offence under Section 307 IPC and appellants Rakshpal Singh, Bhawani Singh and Ram Bahadur Singh for the offence under Section 307/34 IPC and have been sentenced to undergo Seven Years' Rigorous Imprisonment with a fine of Rs.2,000/- each. In case of default of payment of fine, they had to further undergo one month's additional Rigorous Imprisonment.

2. At the very outset, it is worthwhile to mention here that during pendency of the appeal, appellant No.4-Sukhnandan Singh died on 29.03.2007, therefore, the appeal was abated on his behalf vide order dated 24.08.2021.

3. In brief, the case of the prosecution is that on 06.03.1987, the informant gave a written application (Ext. Ka-1) at Police Station Tarabganj, District Gonda to the effect that informant was the resident of Village Liloi Kalan Pure Chauhan and he runs the business of diesel in Ragadganj Bazar. The enmity relating to immovable properties is subsisting between the informant and Sukhnandan Singh and others since long back and the cases are also pending in the courts of law. On the date of incident, his relative Prithviraj Singh, resident of Mujed along with one Lal Mohammad came to his house, who stayed with the informant in night. After having dinner, the informant arranged their bed in the shop of Ram Chander Tiwari. The informant was also sleeping in the shop along with all the persons. At about 4.00 A.M., the informant, having heard the murmuring in the room situated behind the bed room, informant Prithvi Raj Singh and Lal Mohammad awoke. The informant having torch and lathi in his hands, went at the place where he heard the voice and had felt the activities. In order to enquire, he asked them "who are you". Simultaneously, he saw found that Sukhnandan Singh of his village was standing with gun in his hands, Rakshpal, Ram Bahadur Singh and Bhawani Singh were also present there having Kanta, Bhala (spear) and lathi in their hands, from a distance of 30 steps, they intended to come towards informant. Bhawani Singh also lit the torch and recognized him, Rakshpal Singh exhorted to kill informant. Thereafter, Sukhnandan Singh opened fire at him, which hit the left shoulder of the informant. The informant, raising alarm, started running to save his life. Having heard the voice of fire, police party also reached at the place of occurrence and exhorted. All the four accused persons fled away through the field of wheat. Frightened informant could not go to the police station to lodge his F.I.R. in night. After dawn, he reached to the Police Station and gave written application to lodge the F.I.R.

4. On the basis of above contention, an F.I.R. vide Case Crime No.35 of 1987, under Section 307 IPC was registered at Police Station Tarabganj, District Gonda on 06.03.1987 at 7.15 hours, against accused persons Sukhnandan Singh, Rakshapal Singh, Ram Bahadur Singh and Bhawani Singh. On the basis of above F.I.R., the police proceeded to investigate the case. After conclusion of the investigation, police submitted charge sheet against the accused persons.

5. Vide order dated 31.10.1987, learned 1st Additional Muncif Magistrate, Gonda committed the case to the Court of Sessions for trial. The learned trial court framed charges against accused Bhawani Singh, Rakshapal Singh and Ram Bahadur Singh for the offence under Sections 307/34 IPC and against accused Sukhnandan Singh under Section 307 IPC. The accused persons abjured and denied the charges, pleaded not guilty and claimed trial.

6. In support of its case, the prosecution produce

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