IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.139 of 2017

In

CRIMINAL APPEAL (SJ) No.805 of 2016

Arising Out of PS. Case No.-329 Year-2009 Thana- BIHTA District- Patna

======================================================

Kamal Naiyan Singh S/o Late Ram Naresh Singh R/o village- Babahan Lai,

Police Station- Bihta, District Patna

... ... Appellant

Versus

1. The State of Bihar

2. Chandan Singh S/o Raj Deo Singh R/o village – Katari, Police Station –

Rani Talab, District – Patna.

3. Munmun Devi W/o Amrendra Singh R/o village- Babahan Lai, Police

Station- Bihta, District Patna

... ... Respondents

======================================================

with

CRIMINAL APPEAL (SJ) No. 746 of 2016

Arising Out of PS. Case No.-329 Year-2009 Thana- BIHTA District- Patna

======================================================

1.Jaimangal Singh @ Mangal Singh Son of Rajdeo Singh resident of village -

Katari, P.S. Rani Talab, District Patna

2.Amrendra Singh Son of Kamlesh Singh

3.Kamlesh Singh Son of Late Ram Naresh Singh

Both 2 and 3 resident of village - Babhan Lai, P.S. Bihta, District - Patna

... ... Appellants

Versus

The State of Bihar

... ... Respondent/s

======================================================

Appearance :

(In CRIMINAL APPEAL (DB) No. 139 of 2017)

For the Appellant/s: Mr. Pramod Kumar, Advocate

For the State : Mr. Bipin Kumar, APP

(In CRIMINAL APPEAL (SJ) No. 746 of 2016)

For the Appellant/s: Mr. Lakshmi Kant Sharma, Advocate

For the State : Mr. Ajay Mishra, APP

======================================================

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR

and

HONOURABLE MR. JUSTICE JITENDRA KUMAR

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)

Date : 30-04-2024

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

2/37

Both the appeals arise out of the same trial bearing

Sessions Trial No. 1517 of 2011. Hence, they are taken up

together for disposal.

2. Both the appeals have been preferred against the

judgment and order, both dated 05.09.2016, passed by Ld.

Additional District and Sessions Judge VII

th

Danapur, Patna

arising out of Bihta P.S. Case No. 329 of 2009, whereby two

accused, namely, Munmun Devi and Chandan Singh have been

acquitted of all the charges, whereas Amrendra Singh and

Jaimangal Singh have been convicted under Sections 341 and

325 of the Indian Penal Code, whereas Kamlesh Singh has been

found guilty of the offence punishable under Sections 341 and

323 of the Indian Penal Code. By the order of sentence dated

05.09.2016, Appellant Amrendra Singh and Jaimangal Singh

have been sentenced to rigorous imprisonment of seven years

and a fine of Rs. 10,000/- under Section 325 of the Indian Penal

Code each and in case of default to pay the fine, additional

rigorous imprisonment of six months, and under Section 341 of

the Indian Penal Code simple imprisonment of one month and

fine of Rs. 500/- and in case of default to pay the fine, additional

simple imprisonment of fifteen days. All the sentences have

been directed to run concurrently. Appellant Kamlesh Singh has

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

3/37

been sentenced to simple imprisonment of one year and fine of

Rs. 1,000/- under Section 323 of the Indian Penal Code and in

case of default to pay the fine, additional simple imprisonment

of one month and under Section 341 of the Indian Penal Code

simple imprisonment of one month and a fine of Rs. 500/- and in

case of default to pay the fine, additional simple imprisonment

of fifteen days. All the sentences have been directed to run

concurrently.

3. The First Information Report bearing Bihta P.S.

Case No. 329 of 2009 dated 26.12.2009 registered for the

offence punishable under Sections 147, 341, 323, 325 and 307

of the Indian Penal Code against all the five accused persons,

namely, Amrendra Singh, Munmun Devi, Kamlesh Singh,

Mangal Singh and Chandan Singh was registered on fardbeyan

of one Kamal Naiyan Singh as recorded by S.I. S.K. Sharma of

Bihta Police Station on 26.12.2009 at 14-15:00 hours at P.H.C,

Bihta.

4. The prosecution case as emerging from the

fardbeyan is that on 26.12.2009 at 12:00 noon, the informant,

Kamal Naiyan Singh was sitting in front of his house for taking

sun-rays. But, all of a sudden, accused Amrendra Singh,

Munmun Devi, Kamlesh Singh, Mangal Singh and Chandan

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

4/37

Singh came to him wielding Lathi and Gadasa and started

assaulting him repeatedly with intent to kill him. In the

meantime, when his wife Dharamsila Devi came in the midst of

the assault to save him, she was also injured by them grievously

breaking her right leg and left hand. On hulla, when the villagers

reached there, the Accused persons fled away. The reason of the

occurrence is previous dispute in regard to house and land.

5. After investigation, charge-sheet bearing no. 98 of

2010 dated 26.04.2010 was filed against all the five FIR named

accused persons for the offence punishable under Section 147,

341, 325, 326 and 307 of the Indian Penal Code. Subsequently,

cognizance of the offence was taken by Ld. Judicial Magistrate

and case was committed to the Court of Sessions. The charge

was framed against all the chargesheeted accused, namely,

Amrendra Singh, Munmun Devi, Kamlesh Singh, Mangal Singh

and Chandan Singh under Section 147, 341, 325, 326, 307 read

with Section 34 of the Indian Penal Code.

6. During trial, the following six witnesses have been

examined:-

(i) PW-1 – Dharmendar Sharma.

(ii) PW-2 – Dharamsila Devi – who is wife of

Informant

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

5/37

(iii) PW-3 – Kamal Naiyan Singh – who is informant.

(iv) PW-4 – Dr. Ramesh Prasad Singh.

(v) PW-5 – Surendra Kumar Sharma who is

Investigating Officer

(vi) PW-6 – Dr. Pramod Kumar Singh.

7. The prosecution has also brought on record the

following documentary evidences:-

(i) Ext. 1 – Injury report of Kamal Naiyan Singh.

(ii) Ext. 1/1 – Supplementary injury report of Kamal

Naiyan Singh.

(iii) Ext. 2 – Injury report of Dharamsila Devi.

(iv) Ext. 2/1 – Supplementary injury report of

Dharamsila Devi.

(v) Ext. 3 – Fardebayan.

(vi) Ext. 4 – Letter regarding injury of Kamal Naiyan

Singh.

(vii) Ext. 4/1 – Letter regarding injury of Dharamsila

Devi.

(viii) Ext. 5 – Formal FIR.

(ix) Ext. 6 – Charge-sheet.

(x) Ext. 7 – Signature of doctor on discharge slip.

(xi) Ext. 8 – Medicine slip.

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

6/37

(xii) Ext. 9 to 9/B – X-ray report of Kamal Naiyan

Singh.

(xiii) Ext. 10 to 10/A – X-ray report of Dharamsila

Devi.

8. The prosecution has also brought following

documents on record for identification.

(i) Ext. X to X/30 – Medicine Slips of Dharamshila

Devi.

(ii) Ext. Y to Y/29 – Medicine slips of Kamal Naiyan

Singh.

9. The prosecution has also brought on record the

following material exhibits :-

(i) Ext. I to I/V – X-ray plate of Dharamshila Devi.

(ii) Ext. II to II/XXI – X-ray plate of Kamal Naiyan

Singh.

10. After closure of the prosecution evidence, the

Accused Appellants were examined under Section 313 Cr. PC

confronting all the incriminating circumstances so that they

could explain them.

11. No evidence has been adduced on behalf of the

defence.

12. Ld. Trial Court after appreciating the evidence on

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

7/37

record and considering the submissions of the parties, passed the

impugned judgment and sentencing order. Ld. Trial Court found

that as per the evidence on record, offence under Section 307 of

the Indian Penal Code is not made out against any of the

accused persons in view of the nature of the injuries and want of

requisite intention on the part of the Accused persons. Ld. Trial

Court also found that charge under Section 326 of the Indian

Penal Code is not proved in view of the nature of the means

used for causing injury on person of the victims, holding that for

the offence punishable under Section 326, dangerous weapon is

required to have been used by the Accused, but the same being

not the case as per the evidence on record. Ld. Trial

Court further found that there is no evidence on record to prove

charge framed under Section 147 of the Indian Penal Code

against the Accused Persons. Hence, Ld. Trial Court has

acquitted all the Accused Persons of the charges framed under

Sections 307, 326 and 147 of the Indian Penal Code.

13. Ld. Trial Court further found that there is no

sufficient evidence on record in support of the charge framed

against two Accused persons, namely, Munmun Devi and

Chandan Singh. Hence, for want of sufficient evidence against

these two Accused, Ld. Trial Court acquitted them of all the

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

8/37

charges giving benefit of doubt to them.

14. However, Ld. Trial Court found sufficient material

against Amrendra Singh and Jaimangal Singh to convict them

under Sections 325 and 341 of the Indian Penal Code. Ld. Trial

Court also convicted Kamlesh Singh under Sections 323 and

341 of the Indian Penal Code. The prayer of the convicts for

extending benefits of the Probation of Offenders Act, 1958 was

rejected and they were accordingly sentenced.

15. However, Ld. Trial Court has failed to give finding

regarding victim of the crime committed by the convicts. It also

failed to pass any order regarding compensation to the victims

of the crime either under Section 357 or Section 357A of the Cr.

PC.

16. We heard Ld. Counsel for the Appellants and Ld.

APP for the State.

17. Criminal Appeal (DB) No. 139 of 2017 has been

preferred by the Informant, Kamal Naiyan Singh, against

acquittal of Munmun Devi and Chandan Singh, whereas

Criminal Appeal (SJ) No. 746 of 2016 has been filed against

conviction of the Appellants.

18. Ld. Counsel for the Appellants in Cr. Appeal (DB)

No. 139 of 2017 submits that Ld. Trial Court has failed to

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

9/37

properly appreciate the prosecution evidence on record and

erroneously acquitted Munmun Devi and Chandan Singh. There

is sufficient evidence on record to convict the Accused Munmun

Devi and Chandan Singh also. He further submits that Ld. Trial

Court should have also passed order providing compensation to

the victims.

19. Ld. Counsel for the Appellants in Cr. Appeal (SJ)

No. 746 of 2016 submits that Ld. Trial Court has erroneously

convicted the Appellants. There is no evidence on record to

prove any charge framed against the Appellants beyond

reasonable doubts. He further submits that there is material

contradictions in evidence of prosecution evidence. He also

submits that Ld. Trial Court failed to appreciate that on account

of previous enmity between the Appellants and the Informant

due to land dispute, the Appellants have been falsely implicated

by the Informant. He further submits that with the same set of

evidence, two accused were acquitted by giving benefit of

doubt, but the same benefit has not been extended to the

Appellants. Hence, the Appellants should have been acquitted of

all the charges or at least extended the benefit of the Probation

of Offenders Act, 1958. He further submits that there is no

question of paying compensation by the Appellants to the

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

10/37

injured, because they have not committed the offence against

them.

20. We carefully perused all the relevant materials on

record and sincerely considered the submissions advanced by

both the parties. Following questions arise for consideration by

this Court:

(i) Whether acquittal of Munmun Devi and Chandan

Singh of all the charges is sustainable in the eye of

law.

(ii) Whether the conviction of the Appellants of Cr.

Appeal (SJ) No. 746 of 2016 is sustainable in the eye

of law.

(iii) Whether the convicts are appropriately sentenced

as per law.

(iv) Whether the Appellant convict of Cr. Appeal (SJ)

No. 746 of 2016 are entitled to get the benefit of the

Probation of Offenders Act, 1958.

(v) Who are victims of the crime and whether they are

entitled to any compensation, if yes, what amount and

from whom.

21. Coming to the prosecution evidence on record , we

find that P.W.-3, who is informant and P.W.-2, Dharamsila

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

11/37

Devi, who is the wife of the informant, are eye witnesses to the

alleged occurrence.

22. P.W.-4, 5 and 6 are official witnesses. P.W- 4, Dr.

Ramesh Prasad Singh is a doctor who had examined the injury

on the person of the informant and his wife, Dharamsila Devi.

P.W. 5 is the investigating officer of the case and P.W. 6 is also a

doctor, working at Appolo Trauma Centre, Kankarbagh where

the informant and his wife got treatment. PW 1 is also not an eye

witness.

23. We find that, as per the fardbeyan, the Accused

persons had come to the place of occurrence with lathi and

gadasa. But there is no mention of any rod being carried by any

of the accused. There is also no specific allegation against any of

the Accused, the allegation being omnibus in nature. As per the

fardbeyan, the Accused persons armed with Danda and Garasa

came to the Informant and started assaulting him and when his

wife, who is P.W. 2, Dharamsila Devi, came to the place of the

occurrence to save him, she was also injured grievously

breaking her right leg and left hand and when the villagers came

on hulla, the Accused persons fled away.

24. The informant has been examined as P.W.-3. In

his examination-in-chief, he has somewhat developed the

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

12/37

prosecution case by deposing that the Accused Amrendra Singh

was carrying rod in his hand and he had assaulted him on his

head resulting into fracture. Amrendra Singh had also assaulted

him on his teeth and consequently, his three teeth got broken. He

has further deposed that Jaimangal Singh was carrying gadasa

and he assaulted him on his legs and hands, but not from the

sharp side of the gadasa but by its rear side, as a result of which

his legs and hands got broken. Kamlesh Singh was carrying

danda and he broke his left hand. Munmun Devi and Chandan

Singh also assaulted him with danda. When his wife,

Dharamsila Devi came, she was also assaulted by Amrendra

Singh, Munmun Devi, Kamlesh Singh, Chandan Singh and

Mangal Singh. Her right hand and left leg were broken and

when the villagers came all the Accused persons fled away.

After the occurrence, this witness along with his wife went to

Referral Hospital, Bihta for treatment and his statement was also

recorded by the police at Bihta. Thereafter, they went to military

hospital, Danapur for better treatment. Again, they went to

Appolo Hospital, Kankarbagh for better treatment. Even after

discharge from this hospital, their treatment continued as an

outdoor patient for six months. In his cross examination, he has

deposed that all the Accused persons are family members and

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

13/37

the occurrence had taken place on account of land dispute and

partition and criminal cases are also going on between the

informant and the Accused persons.

25. The wife of the informant, Dharamsila Devi,

who is injured in the alleged occurrence has been examined as

P.W. 2. In her examination-in-chief she has deposed that the

Accused Kamlesh was carrying danda and Accused Amrendra

was carrying rod, Jaimangal was carrying farsa and Munmun

Devi and Chandan Singh were carrying danda in their hands and

they broke both hands and legs of the Informant. Accused

Amrendra assaulted the informant on his head and mouth

resulting into fracture of his head and breaking of his teeth and

tearing of his lips. Amrendra Singh also broke her left leg and

right hand. Both the informant and this witness went to Referral

Hospital, Bihata where they were admitted in night and

thereafter they went to Appolo Hospital for treatment and

remained admitted there for a month. After discharge from the

hospital they also got outdoor treatment for a year. The

occurrence had taken place on account of land dispute and Civil

Litigation is going on between the Accused and the informant

regarding partition and even one criminal case has been lodged

by Munmun Devi against the informant in Bihta police station

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

14/37

which is pending in the Court. Amrendra Singh has also lodged

false criminal case against her husband which is also going on.

Even her husband/informant has lodged one case regarding

assault against the Accused persons.

26. P.W. 4 is a Medical Officer, who has treated the

injured informant and his wife on 26.12.2009 at P.H.C Bihta and

he has found the following injuries on the person of the

Informant:

“(1) Swelling with lacerated wound

4"x2"x1" on right lower leg, (2) Lacerated wound

with swelling 3"x2"x1" on left ankle, (3) Lacerated

wound 2"x1/4"x1/4" on front of head, (4) Lacerated

wound 1"x1/4"x1/4" on upper left side of upper lip,

(5) Swelling on upper jaw, (6) Lacerated wound

3"x1/4"x1/4" on right palm, (7) Swelling

2"x2"x1/2" on right lower hand, (8) Swelling

3"x2"x1" left arm, (9) Lacerated wound

1"x1/4"x1/4" below left lower hand, (10) Swelling

3"x1"x1" left upper hand. All the injuries caused by

hard and blunt object. Nature of injuries 1,2,5,7,8

and 9 opinion reserved to P.M.C.H, Patna. Injury

no. 3, 4, 6, 9 are simple.”

27. According to the supplementary injury report,

following injuries were found on the person of the informant :

“A. According to x-ray report fracture upper

1/3rd. right tibia with fracture shaft of Fibula with

ilizaror fixator in the place.

B. According to x-ray report fracture of left fibula

of three sides of lower shaft on lower mid shaft,

second is on lower shaft and third is upper portion

of medial mellous.

C. For injury no. 5: According to Dentist report

dental fracture on left maxillary region with mobile

% and fracture bonny segment removal of mobile

and bonny segment.

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

15/37

D. For injury no.7: According to x-ray report lower

1/3rd. Of right ulna with plate and screw in place.

E. For injury no.8: Swelling 3"x2"x1" on right

palm.

F. For injury no.10: According to x-ray and report

fracture 1/3rsd. On left ulna with plat and screw in

place. Cause Hard blunt substance. Opinion: Injury

no. 1,2,5,7and 10 are grievous and injury no. 8 is

simple.”

28. P.W.4 had also examined, on the same day, the

victim Dharmsheela Devi, wife of the informant and the

following injuries were found on her person:

“ 1. Lacerated wound 1"x1/2"x1/4" in

middle of right ring finger. 2 Lacerated wound

1"x1/4"x1/4" on right thumb. 3 Swelling

2"x1/2"x1/2" on the right upper hand. 4 Swelling

3"x1/2"x1/2"on back. 5 4"x1"x1" on left knee.

Cause- Hard blunt object. Nature of injuries:

Injury no.1, 2 are simple, injury no. 3, 4 and 5

opinion reserved. (Ext.2).”

29. According to her supplementary injury report, the

following injuries were found on her person :

“(a) On injury no.3 - fracture shaft of

ulna plate and screw in place. (b). -For injury

no.4 - swelling 3"x1/2"x1/2" on back. (c) - For

injury no.5 - According to x-ray and report

fracture petella and tension bond wiring caused

by hard substance. Nature: Injury no.3 and 5 are

grievous. Injury no.4 is simple.”

30. The above injuries have been further supported by

various documents which are proved by P.W.6 Dr. Promod

Kumar, Ex-Orthopedic Surgeon of Apollo Trauma Center,

Kankarbagh, Patna Documents were marked as Ext.7 to 10/A

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

16/37

and material Exts. I to II/XXI the X-ray reports.

31. P.W.-5 is Sri Surendra Kumar Sharma,

Investigating Officer of the case. In his cross-examination, he

had deposed that he has not recorded the statement of

Dharmendra Sharma, who is P.W.-1 herein. He has also deposed

that Dharamsila Devi, who is P.W.-2, had not stated in her

statement under Section 161 that she was sitting with

Dharmendra Sharma at her door, instead she had stated to him

that she was sitting on the door. He has further deposed that

Dharmasila Devi had not stated to him that Amrendra Singh was

carrying rod in his hand and Jaimangal Singh was carrying farsa

and Chandan Singh and Munmun Devi were carrying danda,

instead she had stated that all the accused were carrying danda

and gadasa. He has also deposed that Dharamsila Devi had not

stated to him that Amrendra Singh had attacked the informant

with rod on his head. He has further deposed that the informant

Kamal Naiyan Singh has not given statement before him that

Amrendra Singh was carrying rod in his hand. He has also not

stated him that Munmun Devi had assaulted him by danda.

32. P.W.-6 is Dr. Pramod Kumar Singh, who was a

doctor at Apollo Trauma Centre and he has proved that the

informant and his wife Dharamsila Devi has got treated at his

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

17/37

hospital.

33. P.W.-1 is Dharmendra Sharma. But he is not an

eye witness, because

P.W.-2, Dharamsila Devi has not stated to

the police that she was sitting with Dharmendra Sharma on her

door and after hearing the hulla, she went to the place of

occurrence along with him where the informant/husband was

assaulted. Even police had not examined him under Section 161.

He has deposed only in court.

34. As such, we find that there is no cogent evidence

to prove that the accused were carrying any iron rod. The

accused as per the evidence on record, were carrying Danda and

Garasa. Even Garasa was used not by its sharp edge side.

Clearly, the nature and the manner of assault shows that there

was no intention on the part of Accused persons to kill the

informant or his wife. Had there been such intention on the part

of the Accused, they could not have attacked the informant and

his wife by the rear side of the gadasa and even the assault was

mainly on non vital part of the body, except some assault on

head of the informant. As such, for want of intention to cause

death of the informant and his wife, Section 307 IPC is not

attracted in the given facts and circumstances.

35. We further find that for application of Section 326

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

18/37

of the Indian Penal Code, use of dangerous weapon is required

by the Accused, but there is no such use of dangerous weapons.

The Accused have used danda and rear side of gadasa to cause

injury to the informant and his wife. As such, even Section 326

IPC is not attracted in the given facts and circumstances.

36. Ld. Trial Court has rightly acquitted all the

Accused persons of charge framed under Section 307 and 226 of

the Indian Penal Code.

37. We also find no error to have been committed on

the part of the Ld. Trial Court when it acquitted the Accused

Munmun Devi and Chandan Singh giving them benefit of doubt.

We find no sufficient evidence on record to prove any charge

against them beyond reasonable doubt. As per evidence on

record, Munmum Devi and Chandan Singh were carrying

Danda. But PW 2 Dharmshila Devi has not deposed about any

overt act on their part, though Informant PW 3 has alleged some

minor role in the assault on him, it would be not safe to convict

these Accused on such evidence, particularly in view of intense

previous enmity between the informant and the accused side.

38. In view of the acquittal of the aforesaid two

accused persons, out of the five, even Section 147 of the Indian

Penal Code will not apply against the rest accused persons.

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

19/37

39. However, as per the evidence on record regarding

the overt acts of the rest three accused and the nature of the

injuries received by the victims, Appellants Amrendra Singh and

Jaimangal Singh have been rightly convicted under Section 325,

and 341 of the IPC. Appellant Kamlesh Singh has been also

rightly convicted under Sections 323 and 341 of IPC.

40. Now question is whether the convicts have been

properly sentenced. Ld. Trial Court has rejected the prayer of the

convicts/Appellants for extending benefit of theProbation of

Offenders Act, 1958 holding that convicts have already been

given benefit of doubts regarding charge under Sections 307 and

326 IPC and the way they have caused the injuries to the victims

is brutal and cruel.

41. However, before we consider the submission of

the Convicts / Appellants regarding extending benefits under the

Probation of offenders Act, 1958 to them, it would be pertinent

to examine the provisions of the Probation of offenders Act,

1958.

42. The Probation of Offenders Act, 1958 provides

for the release of offenders of certain categories on probation or

after due admonition. The Act was enacted in view of the

increasing emphasis on the reformation and rehabilitation of the

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

20/37

Offenders as a useful and self-reliant members of society

without subjecting them to deleterious effects of jail life. In

Ratan Lal Vs. States of Punjab as reported in AIR 1965 SC

444, Hon'ble Supreme Court has held that the Act is a

milestone in the Progress of the modern liberal trend of reform

in the field of Penology. It is the result of the recognition of the

doctrine that the object of criminal law is more to reform the

individual offender than to Punish him.

43. In Arvind Mohan Sinha Vs Amulya Kumar

Biswas as reported in (AIR 1974 SC 1818), Hon'ble Supreme

Court has pointed out that the Probation of Offenders Act is a

reformative measure and its object is to reclaim amateur

offenders who, if spared the indignity of incarceration, can be

usefully rehabilitated in society. A jail term should normally be

enough to wipe out the stain of guilt but the sentence which the

society passes on convicts is relentless. The ignominy

commonly associated with a jail term and the social stigma

which attaches to convicts often render the remedy worse than

the disease and the very purpose of punishment stands in the

danger of being frustrated. In recalcitrant cases, punishment has

to be deterrent so that others similarly minded may warn

themselves of the hazards of taking to a career of crime. But the

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

21/37

novice who strays into the path of crime ought, in the interest of

society, be treated as being socially sick. Crimes are not always

rooted in criminal tendencies and their origin may lie in

psychological factors induced by hunger, want and poverty. The

Probation of Offenders act recognizes the importance of

environmental influence in the commission of crimes and

prescribes a remedy whereby the offender can be reformed and

rehabilitated in society. An attitude of social defiance and

recklessness which comes to a convict who, after a jail term,is

apt to think that he has no more to lose or fear may breed a litter

of crime. The object of the Probation of Offenders Act is to nip

that attitude in the bud.

44. In Arvind Mohan Sinha case (Supra) ,

Hon'ble Supreme Court also held that there is no foundation

for the fear that offenders released on probation may hold the

society to ransom and the society may therefore look upon the

release of offenders on probation as the triumph of criminals

over the weaknesses of law. An offender released on probation is

convicted but not forthwith sentenced in the sense of penal laws.

Under the disposition made by the court, the sentence is

suspended during the period of probation. Section 4(1) of the

Act provides that instead of sentencing the offender "at once",

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

22/37

the court may direct his release on his entering into a bond to

"receive sentence when called upon" during the probationary

period and in the meantime to keep the peace and be of good

behaviour. Thus it is. only in a limited, though a socially

significant, sense that the Act constitutes as exception to the

broad and general principle of criminal law.

45. The object of the Act has been also pointed out

by Hon'ble Supreme Court in Ramnaresh Pandey Vs State of

Madhya Pradesh ( AIR 1974 SC 35) and Jugal Kishore

Prasad v. State of Bihar (AIR 1972 SC 2522) stating that the

object of the Act is to prevent the conversion of youthful

offenders into obdurate criminal as a result of their association

with hardened criminals of mature age in case the youthful

offenders are sentenced to undergo imprisonment in jail. The

above object is in consonance with the present trend in the field

of penology, according to which efforts should be made to bring

about correction and reformation of the individual offenders and

not to resort to retributive justice. Modern criminal

jurisprudence recognizes that no one is a born criminal and that

a good many crimes are the product of socio-economic milieu.

Although not much can be done for hardened criminals,

considerable stress has been laid on bringing about reform of

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

23/37

young offenders not guilty of very serious offences and of

preventing their association with hardened criminals. The Act is

statutory recognition to the above objective. It is therefore

provided that youthful offenders should not be sent to jail ,

except in certain circumstances.

46. As for the scheme and provisions of the Act, we

find that Sections 1 of the Act deals with short, title, extent and

commencement of the Act whereas section 2 deals with

definitions. Sections 3 to 12 of the Act deal with Role of Court

for the application of provisions of the Act. Section 13 to 16 deal

with Role of Probation Officer. Section 17 deals with power of

Government to make rules. Section 18 deals with saving of

operation of certain enactments, and Section 19 provides for

application of this Act to certain States.

47. Section 3 of the Probation of Offenders Act

provides as follows:

"Sec. 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

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

24/37

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

Sec. 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 Sec. 4 "

48. As such, as per Section 3 of the Act, the Court

has power to release convicts after admonition on fulfillment of

the following conditions:

“1. The offender is found guilty of the offences

punishable under section 379, or 380 or 381 or 404

or 420 of Indian Penal Code,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,

2. Offender should not have been previously

convicted,

3. The Court considers it expedient to release the

offender to release him after admonition

considering the nature of the offence and the

character of the offender. The word character is

not defined in the Act. Hence it must be given the

ordinary meaning,

4. The Court may release the offender after due

admonition, instead of sentencing him or releasing

him on probation of good conduct applying section

4 of the Act.”

49. Sec. 4 of the Probation of Offenders Act,

1958 reads as follows:

“Sec. 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 record 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,

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

25/37

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“Sec. 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 record 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

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

26/37

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 offenders.

(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.

50. As such, as per Section 4, if 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 behavior.

The word character is not defined in the Act. Hence it must be

given the ordinary meaning.

51. The court may also require the offender to remain

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

27/37

under the supervision of a probation officer during certain

period, if it thinks that it is in the interests of the offender and of

the public. It can also impose appropriate conditions which

might be required for such supervision. In case the court does

specify such conditional release, it must require the offender to

enter into a bond, with or without sureties, enumerating the

conditions. The conditions may relate to place of residence,

abstention from intoxicants, or any other matter as the court

thinks appropriate to ensure that the crime is not repeated.

52. An order of release on probation can be passed

only after the accused is found guilty. The order of release on

probation of the offender is merely in substitution of the

sentence to be imposed upon him by the court.

53. Power of the court under Sec.3 and Sec. 4 of the

Act is discretionary and it has to be exercised considering the

nature of the offence and the character of the offender. Hon'ble

Supreme Court has observed time and again through decisions

that the benefits mentioned in Section 3 and 4 are subject to the

limitations laid down in those provisos and that the word 'may'

in Section 4 of the Act is not be understood as `must'. Reliance

is placed on the following authorities:

(i) Ramji Missar vs. State of Bihar: AIR 1963 SC 1088;

(ii) Rattan Lal vs. State of Punjab; 1964 (7) SCR 676

(iii) Isher Das vs. State of Punjab : AIR 1972 SC 1295;

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

28/37

(iv) Ram Parkash vs. State of Himachal Pradesh AIR 1973 SC 780.

54. In Commandant 20 Bn ITB Police Vs Sanjay

Binjola as reported in 2001 CrLJ 2349 (SC) , Supreme Court

has held that nobody can claim the benefit of Sections 3 and 4

of the Probation of Offenders Act as a matter of right and the

court has to pass appropriate orders in the facts and

circumstances of each case having regard to the nature of the

offence, its general effect on the society and the character of the

offender, etc. In Sita Ram Paswan & Anr Vs State of Bihar, as

reported in AIR 2005 SC 3534, Hon'ble Supreme Court has

held that for exercising the power which is discretionary, the

Court has to consider circumstances of the case, the nature of

the offence and the character of the offender. While considering

the nature of the offence, the Court must take a realistic view of

the gravity of the offence, the impact which the offence had on

the victim. The benefit available to the accused under Section 4

of the Probation of Offenders Act is subject to the limitation

embodied in the provisions and the word "may" clearly indicates

that the discretion vests with the Court whether to release the

offender in exercise of the powers under Section 3 or 4 of the

Probation of Offenders Act, having regard to the nature of the

offence and the character of the offender and overall

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

29/37

circumstances of the case.

55. In Nilgiri Bar Association Vs T K Mahalingam

& Anr, as reported in AIR 1998 SC 398 , Hon'ble Supreme

Court has held that by the words so couched in the Sub-section

(1) of Section 4 , Parliament has taken care to emphasize that

before the relief (envisaged in the provision) is granted court

must take into account the circumstances of the case, among

which "the nature of the offence and the character of the

offender" must have overriding considerations. After bestowing

judicial consideration on those factors, the court must form an

opinion as to whether it would be appropriate in that case to

release the particular accused therein as envisaged in the sub-

section.

56. Hon'ble Supreme Court in In Nilgiri Bar

Association Case (Supra) has further held that when

considering the nature of the offence, the court must have a

realistic view on the gravity of the offence, the impact which the

offence could have had on the victims and whether

considerations of deterrence can be overlooked etc. No fixed

yard-stick can be laid down to measure the nature of the offence

for affording or denying the relies envisaged in Section 4 of the

Act.

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

30/37

57. Age of offender has to be reckoned on the date of

imposition of the sentence of imprisonment as held by Hon'ble

Supreme Court in Sudesh Kumar Vs State of Uttarakhand

(AIR 2008 SC 1120) relying upon Ramji Missar Vs State of

Bihar (AIR 1963 SC 1088) .

58. In regard to the power of Appellate Courts under

the Probation of the Offenders Act,1958, the relevant provisions

have been provided in Sec. 11 of the Act which reads as

follows:

"Sec. 11. Courts competent to make order under

the act, appeal, revision and powers of courts in

appeal and revision- (1) Notwithstanding anything

contained in the Code or any other law, an order

under this Act may be made by any Court

empowered to try and sentence the offender to

imprisonment and also by the High Court or any

other Court when the case comes before it on appeal

or in revision.

(2) Notwithstanding anything contained in the

Code, where an order under section 3 or section 4 is

made by any Court trying the offender (other than a

High Court), an appeal shall lie to the Court to

which appeals ordinarily lie from the sentences of

the former Court.

(3) In any case where any person under twenty-one

years of age is found guilty of having committed an

offence and the Court by which he is found guilty

declines to deal with him under section 3 or section

4, and passed against him any sentence of

imprisonment with or without fine from which no

appeal lies or is preferred, then, notwithstanding-

any thing contained in the Code or any other law,

the Court to which appeals ordinarily lie from the

sentences of the former Court may, either of its own

motion or on an application made to it by the

convicted person or the probation officer, call for

and examine the record of the case and pass such

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

31/37

order thereon as it thinks fit.

(4) When an order has been made under section 3 or

section 4 in respect of an offender, the Appellate

Court or the High Court in the exercise of its power

of revision may set aside such order and in lieu

thereof pass sentence on such offender according to

law:

Provided that the Appellate Court or the High

Court in revision shall not inflict a greater

punishment than might have been inflicted by the

court by which the offender was found guilty.

59. In Rattan Lal Case (Supra), Hon'ble Supreme

Court has held that it is clear from the language of sub-sec. 1

of Sec 11 that original trial Court is empowered to order under

the Act in the first instance and orders under the Act can also be

made by the High Court or any other Court when the case

comes before it in appeal or in revision.

60. In regard to applicability of Sec. 360 of Cr.P.C.

and the Probation of Offenders Act, 1958, there was some

confusion prevailing in the state of Bihar before decision of the

Hon'ble Patna High Court in Upendra Nath Chaudhary Vs.

High Court of Judicature at Patna(2007 CriLJ 2913) . Trial

courts had developed tendency to mostly proceed under section

360 of the Cr. PC under the mistaken notion that the provisions

of that section were substitute and alternate to the provisions of

the Probation of Offenders Act, 1958. In the said case, this

Court after discussing the relevant provisions of the Act of

1958 and the binding authorities of Hon'ble Supreme Court, it

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

32/37

was held that the provisions of Sec. 360 of the Code have no

application to this State and the issue of release of the convict

on probation of good conduct must, therefore, be dealt with

under the provisions of the Act of 1958 which has been made

applicable to the whole of the State, w.e.f. 15-6-1959 vide

notification published in the Bihar Gazette of 6-6-1959.

61. As such, the Probation of Offenders Act is

operative in the State of Bihar excluding the application of Sec.

360 of the Cr.P.C 1973 and the courts are duty bound to invoke

the provisions of the Probation of Offenders Act,1958 while

dealing with the issue of release of offenders on probation. We

also find that this appellate court has also similar jurisdiction in

appeal like that of trial court of first instance under the

provisions of the Act to deal with the issue of probation.

62. Now the question is whether the

appellants/convicts are entitled to get relief under the provisions

of the Probation of Offenders Act, 1958 in the facts and

circumstances of the case and the prevailing law as discussed

above.

63. In this context, we find that the appellants have

been found guilty of offence punishable under section 341, 323

and 325 of I.P.C. As such the offences committed by the

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

33/37

appellants are not punishable with death or imprisonment for

life. We also find that at the time of imposing sentence by the

trial court on 05.09.2016, the appellant Amrendra Singh,

Jaimangal Singh and Kamlesh Singh were 36 years, 40 years,

and 76 years old respectively. At present they have become

older by about 8 years and they have also spent their lives in

custody during trial and during pendency of the present appeal.

They have been also acquitted of charge under sections 307 and

326 IPC giving benefit of doubt. Some injuries caused by them

are also grievous in nature. In such circumstances, it would not

be desirable to extend the benefits of the Probation of Offenders

Act. The interest of justice would be better served if the

sentence is modified and compensation is paid by the convicts

to the victims Kamal Naiyan Singh and Dharamsila Devi, who

have suffered injuries on their persons at the hands of the

convicts. Here, it would be very apt to refer to Maru Ram Vs.

Union of India, (1981) 1 SCC 107, where legendary Justice

Krishna Iyer, speaking for Hon’ble Supreme Court had said as

follows which provides guidance to Courts while passing

sentencing orders:

74. ………If crime claims a victim criminology must

include victimology as a major component of its concerns.

Indeed, when a murder or other grievous offence is

committed the dependents or other aggrieved persons must

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

34/37

receive reparation and the social responsibility of the

criminal to restore the loss or heal the injury is part of the

punitive exercise. But the length of the prison term is no

reparation to the crippled or bereaved and is futility

compounded with cruelty………….”

64. Section 357 and 357A of Cr. PC deal with

compensation. Section 357 Cr. PC empowers Court to direct the

convicts to pay compensation to the victims of their crime.

Under sub-section 1 of Section 357, the Court can impose fine

and direct the payment of the whole fine or part thereof to the

victims by way of compensation. Under sub-section 3 of Section

357 Cr. PC, Court can direct the convict to pay compensation to

the victim even when fine is not imposed on the convicts. As per

sub-section 4 of the Section 357 Cr. PC, even the Appellate and

Revisional Courts are empowered to pass such order of

compensation. When payment of compensation under Section

357 Cr.PC is not sufficient, Court is empowered to resort to

Section 357A Cr. PC to recommend the Legal Service Authority

to make additional compensation to the victims as per the

scheme of the government framed under Section 357A Cr. PC.

Division Bench of this Court in Sunil Kumar Jha Vs. State of

Bihar ( 2024 SCC Online Pat 960) has dealt with the subject of

compensation to the victims in great detail adverting to relevant

statutory provisions and case laws, holding as follows:

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

35/37

“ 105. It clearly emerges from the aforesaid statutory

provisions and case laws that the Court conducting a

criminal trial is duty bound to pass reasoned order, on the

conclusion of the trial, regarding compensation to victims

as per Section 357 and Section 357 A Cr. P.C., irrespective

of conviction, acquittal or discharge. Such order has to be

passed by the Trial Court even when the victim has not

filed an application for compensation. In such order, the

Court is required to give finding whether the alleged

offence has been committed or not, and if committed who

is victim of the committed offence, and if there is any

victim in terms of Section 2 (wa) Cr. P.C., whether victim

is entitled to compensation under Section 357 and Section

357 A Cr. P.C. and if yes, how much and from whom.

106. The Appellate and Revisional Court are equally

duty bound to pass such order regarding compensation to

the victims in their final judgments even if the

appeals/revisions have been filed by a party other than the

victim, only condition being that appeal or revision or any

other proceeding arising out of the crime is pending before

the Court.

107. Moreover, victims are entitled to benefits under

State Victim Compensation Scheme made under Section

357A Cr. P.C. even when the concerned offence has been

committed prior to the scheme coming into force if the

trial, appeal or revision are pending on or after the scheme

came into force.

108. In case of conviction of the Accused,

compensation payable to the victim may be imposed upon

the convict as per his paying capacity either by way of fine

or otherwise under Section 357 Cr. P.C. and if the

compensation directed to be paid under Section 357 Cr.

P.C. is not sufficient to rehabilitate the victim, the Court is

empowered to recommend the Legal Services Authority to

pay the compensation to the victim from the State fund

created under Victim Compensation Scheme made under

Section 357A Cr. P.C. In case of acquittal of the Accused-

Appellant, the Court is duty bound to resort to Section

357A Cr. P.C. to recommend Legal Services Authorities to

pay compensation to the victim as per Victim

Compensation Scheme of the State as made under Section

357A Cr. P.C.”

65. Coming back to the case on hand, both the Appeals

are, accordingly, dismissed, upholding the acquittal of

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

36/37

Respondent no. 2, Chandan Singh and Respondent no. 3

Munmun Devi of the Criminal Appeal (DB) No. 139 of 2017

and conviction of the Appellants Jaimangal Singh, Amrendra

Singh and Kamlesh Singh of Criminal (SJ) No. 746 of 2016.

However, the impugned sentencing order dated 05.09.2016 is

modified by reducing the period of imprisonment of all the

Appellants to the period already spent by them in jail upholding

the fine imposed by Ld. Trial Court under Section 357(1) of Cr.

PC. But under Section 357(3) Cr.PC Appellant Amrendra Singh

is directed to pay compensation of Rs. 10,000/- to the victim

Kamal Naiyan Singh and Rs. 10,000/- to the other victim

Dharamsila Devi. Similarly Appellant Jaimangal Singh is also

directed to pay compensation of Rs. 10,000/- to the victim

Kamal Naiyan Singh and Rs. 10,000/- to the other victim

Dharamsila Devi. However, Kamlesh Singh is directed to pay

compensation of Rs. 5,000/- to Kamal Naiyan Singh and Rs.

5,000/- to Dharamsila Devi. The aforesaid compensation must

be paid by the Appellants within one month of this order to the

victims, failing which the appellants would be liable to undergo

further simple imprisonment of six months, as Hon’ble

Supreme Court in Hari Kishan Vs Sukhvir Singh, (1988) 4

SCC 551 has held that Court may enforce order of

Patna High Court CR. APP (DB) No.139 of 2017 dt.30-04-2024

37/37

compensation by imposing sentence in default.

66. Since the Appellants of Criminal Appeal (SJ) No.

746 of 2016 are on bail, they stand discharged of their liability

of their bail bonds.

Ravishankar

chandan/Shoaib-

(Ashutosh Kumar, J.)

(Jitendra Kumar, J.)

AFR/NAFR AFR

CAV DATE NA

Uploading Date 06.05.2024

Transmission Date 06.05.2024