IMPORTANT POINT
The court established that first-time offenders can be granted probation under the Probation of Offenders Act, 1958, considering their character and the nature of the offence.

JUDGMENT :

Pankaj Purohit, J.

At the very outset, it needs to be mentioned that during the course of pendency of appeal, appellant no.4, namely, Gulshan passed away due to which the appeal stood abated against the said appellant vide order dated 18.09.2023 passed by this Court. Now, the appeal is heard and adjudicated qua remaining three appellants, namely, Kurban, Furkan and Gulfam.

2. Heard learned counsel for the parties.

3. This is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter to be referred as “the Cr.P.C.”) against the judgment and order dated 16/17.09.2009 passed by learned Additional Sessions Judge, Roorkee, Haridwar in Sessions Trial No.162 of 2007, whereby appellants have been convicted and sentenced as under:-

All the sentences were directed to run concurrently. However, the accused appellants were acquitted for the offence under Section 323/34 and 506 IPC by the trial court.

4. The facts of the case are that the prosecution was set into motion on the report filed by Imtiyaz (PW1) given on 23.07.2005 at Police Station Baghwanpur to the effect that the incident is of 22.07.2005 at about 11:00 p.m. his brother Ikram (PW2) was sleeping in his house. At that time, the informant heard screams on which he went to the house of the brother and saw that the people of his village namely, Kurban, Furkan, Gulfam and Gulsan (appellants herein) armed with sticks, baton, Palkati (a sharp edged weapon), sword and iron rods were assailing his brother. There was a light of electric bulb in the house. Meanwhile, informant’s brothers Zulfkar, Israr and sister-Zulfana also came on the spot for rescue when these people tried to rescue Ikram, all these four accused also attacked the informant party, due to which, they also sustained several injuries. On hearing alarm, several people from vicinity came on the spot and saved brother and sister of the informant. While fleeing away, accused persons also extended a threat to kill them in future.

5. On the basis of aforesaid report, the case was registered at the Police Station and the investigation of the case was started. The Investigating Officer during course of investigation recorded the statements of witnesses, inspected the place of occurrence and prepared the site plan and arrested the accused persons. On being satisfied, submitted a charge-sheet against the accused persons under Sections 323, 324, 452, 308 & 506 IPC in the court. Thereafter, charge was framed against the accused persons under Sections 323/34, 324/34, 308/34, 452 & 506 were framed against the accused, which the accused denied and claimed trial.

6. As many as twelve witnesses were produced by the prosecution to prove its case against the appellants. They are PW1-Imtiyaz (informant), PW2-Ikram, PW3- Israr, PW4-Zulfkar, PW5-Smt. Zulfana, PW6-Mustkim, PW7-Aalmgir, PW8-S.I. B.D. Uniyal, PW9-S.I. T.S. Rana, PW10-Constable Rakesh Singh, PW11-Dr. Ajay Kumar and PW12-Dr. Ajay Mohan.

7. After prosecution evidence, the statement of accused-appellants were recorded under Section 313 Cr.P.C. in which they stated that on 22/23.07.2005, Mumtaz, Israr, Imtiyaz, Ikram, Zulfkar had caused injuries to Kurban and Sabir, cross-case whereof is also going on and for this very reason, a false case has been registered against them. On completion of trial, the trial court convicted and sentenced the accused persons as mentioned in paragraph 3 of this judgment.

8. I have heard learned counsel for the parties at length and have carefully perused the entire documents available on record.

9. Learned counsel for the appellants having argued extensively finally submitt