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MANGI LAL v STATE - CRLA Case No. 11 of 1988  RD-RJ 1428 (4 July 2006)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
O R D E R
S.B. CRIMINAL APPEAL NO.11/1988
(Mangi Lal Vs. State)
Date of order : 4.7.2006
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Manish Shishodia with
Mr. G.R. Rathore, for the appellant.
Mr. L.R. Upadhyay, Public Prosecutor.
By way of filing the present appeal, the appellant Mangi Lal has challenged the judgment dated 17.12.1987 passed by Additional Sessions Judge,
Chittorgarh in Sessions Case No.107/1985 whereby the appellant Mangilal was convicted for offence under
Section 325 I.P.C. and sentenced to two years RI with fine of Rs.250/- and in default of payment of fine to further undergo six months RI and for offence under
Section 452 I.P.C., the trial court sentenced him to one year RI with fine of Rs.100/- and in default of payment of fine to further undergo four months RI.
In this case, initially FIR was registered on the statement of injured Kanhaiyalal for offence under
Sections 307, 452, 147, 148, 149 I.P.C. on 3.12.1983 before Police Station Begu District Chittorgarh.
After investigation, police filed challan under
Sections 452, 325 read with Sections 147, 148, 149
I.P.C. After filing challan, the Magistrate having perused the challan papers took cognizance against the appellant and other co-accused for offence under
Section 307 I.P.C. also. Thereafter, the case was committed to the Sessions Court for trial. Later on, for the purpose of trial the case was transferred to the Additional District and Sessions Judge,
After due trial, the learned trial court passed the judgment dated 17.12.1987 whereby all the accused persons who were tried along with the present appellant were acquitted from the charges for offence under Section 307-307/149 I.P.C. levelled against them but the learned trial court recorded the finding of guilt only against the appellant Mangilal for offence under Sections 325 and 452 I.P.C. and convicted him and sentenced him as aforesaid.
The appellant preferred the present appeal challenging the validity of the said order on various grounds. According to the allegations levelled in the
FIR, it was alleged by complainant Kanhaiyalal that 13 persons including the present appellant entered into his house and beaten him. The present appellant was armed with iron road and he inflicted three injuries upon his head and other accused-persons also caused injuries to him. It was further alleged in FIR that complainant's wife was also beaten by all of them and thereafter all the accused-persons kidnapped his wife.
Upon this FIR, a thorough investigation was made by
Police and challan was filed under Sections 325, 452, 147, 148 and 149 I.P.C. The Magistrate took cognizance for offence under Section 307 I.P.C. and case was committed to Sessions Court for trial and at last the case was transferred to Additional District &
Sessions Judge, Chittorgarh.
It is contended by the learned counsel for the appellant that there are major discrepancies in the statement of witnesses with regard to inflicting injuries. The learned trial court after trial came to the conclusion that prosecution has filed to prove the case beyond reasonable doubt against all the accused persons except the present appellant Mangilal. It is also contended that the learned trial court has not appreciated the evidence in right perspective as far as the present appellant is concerned. Against the appellant in the FIR, the allegation was for inflicting three injuries to the complainant
Kanhaiyalal by iron rod whereas in the statement recorded before the court, he has improved his version and the learned trial court acquitted all the accused who were challaned for offence under Section 307 read with Section 147 and 149 I.P.C. and only the present appellant has been held guilty for offence under
Section 325 and 452 I.P.C. Therefore, the judgment rendered by learned trial court is erroneous because the learned trial court has not appreciated the statement of injured Kanhaiyalal in right perspective and he has falsely implicated all the relatives of
Mst. Vardi - the so-called wife of Kanhaiyalal. It is also contended by learned counsel for the appellant that the learned trial court has erred in law in not appreciating that the first information was grossly belated. It is further contended that it cannot be lost sight of that Kanhaiyalal has tried to use the injury sustained by him by accidental fall and otherwise just to put pressure on the appellant and his relatives to some how permit him to confine and retain Mst. Vardi with him. For offence under Section 452 I.P.C., it is vehemently argued by the learned counsel for the appellant that venue of offence has been deliberately shifted and that apart looking to the place of occurrence no offence of house trespass can be said to be proved. It is further contended that from the prosecution evidence itself even if it is assumed that accused appellant entered the premises, there is no criminal trespass as such as the entry is in the exercise of right to release the woman from unlawful detention. Lastly, learned counsel for the appellant submitted that this case is pending since 1988 and the occurrence is of the year 1983, thus near about 23 years have elapsed and the learned trial court refused to accept the prayer of the appellant for granting the benefits of Probation of
Offenders Act. Therefore, looking to the totality of the circumstances and the fact that there was major contradiction in the statement of prosecution witnesses, in the interest of justice, the appellant may be granted the benefits of probation.
Learned counsel for the appellant has invited the attention of this Court towards the Division Bench judgment rendered by this Court in case of State of
Rajasthan Vs. Shyoji & 4 others, reported in 1980
Cr.L.R. (Raj.) 70 and another judgment rendered by
Hon'ble Supreme Court in case of Bhalinder Singh Vs.
State of Punjab, reported in 1994 SCC (Cri) 462 as also the judgment rendered by this Court in case of
Ismial Khan & Ors. Vs. State of Raj., reported in 1986
Cr.L.R. (Raj.) 399 and prayed that the appellant may be given benefits of probation under Section 360
Cr.P.C. and Section 4 of Probation of Offenders Act.
The provisions of Section 360 Cr.P.C. have been enacted to make the theory of reformative punishment more liberal then the provisions enacted under the
Probation of Offenders Act which is evident by Section 361 Cr.P.C. The section requires of the court to assign cogent reasons for not extending the benefit and it is essential, therefore, not only to take into consideration the provisions of section 4 of Probation of Offenders Act but also the provisions under Section 360 Cr.P.C. before sentence is passed.
Par contra, learned Public Prosecutor vehemently opposed the prayer made by the learned counsel for the appellant and contended that the learned trial court has rightly recorded the finding of guilt against the appellant for offence under
Sections 325 and 452 I.P.C. It is also contended by learned Public Prosecutor that looking to the fact that a number of injuries were inflicted by appellant, therefore, the learned trial court rightly refused to grant the benefits of probation to the appellant.
I have heard learned counsel for the appellant as well as learned Public Prosecutor and carefully perused the entire record of the case. It is true that initially FIR was filed by injured
Kanyaiyalal and in the FIR the specific allegations was levelled against the appellant for inflicting three injuries though the case was registered under
Sections 147, 148, 149, 452, 307 and 366 I.P.C. but after investigation, the police filed challan under
Sections 147, 148, 325 and 452 I.P.C. but learned
Magistrate having perused the challan registered the case under Sections 147, 148, 325, 452 read with
Section 149 I.P.C. and added Section 307 I.P.C. and committed the case to the Sessions Court but after trial, the trial court came to the conclusion that no offence under Section 307 I.P.C. is made out and acquitted all the persons against whom challan was filed including the present appellant for offence under Section 307 I.P.C. However, only appellant was convicted for offence under Section 325 and 452 I.P.C.
As per the record of the case, the appellant was near about 40 years of age at the time occurrence took place i.e. in the year 1983. At this belated stage and looking to the totality of the circumstances and evidence on record, it is desirable that the appellant may be granted benefits of Probation of Offenders Act.
Upon the record, there is no evidence with regard to any previous conviction of the appellant or commissions of any offence by him.
In the present case, the incident is of the year 1983 and the case was finally decided by trial court in the year 1987 and the appeal is pending before this Court since 1988. Therefore, while following the decision cited by the learned counsel for the appellant and to secure the ends of justice, this appeal is partly allowed and while maintaining the conviction of accused-appellant, instead of sentences imposed upon him, the appellant is hereby granted the benefits of probation. Accordingly, he is directed to be released upon executing personal bond in the sum of Rs.5000/- along with one surety in the like amount to the satisfaction of the trial court for keeping peace and be of good behaviour for a period of two years. Two months time is granted to execute the bond.
(GOPAL KRISHAN VYAS), J. arun
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