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Judgment
The present criminal appeal has been preferred by the appellants questioning the judgment of conviction and order of sentence dated 20.07.2019 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Pali, whereby the learned trial Court, while acquitting the appellants of the offences punishable under Section 459 of the Indian Penal Code and Sections 3(1)(x) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, has convicted them for the offences punishable under Sections 341/34, 323/34, 325/34 and 427/34 IPC.
For the aforesaid offences, each of the appellants has been sentenced to undergo one month's simple imprisonment under Section 341/34 IPC, one year's simple imprisonment under Section 323/34 IPC, three years' simple imprisonment along with a fine of Rs.10,000/- under Section 325/34 IPC and two years' simple imprisonment under Section 427/34 IPC. In default of payment of fine, each appellant has been directed to undergo two months' additional simple imprisonment. All the substantive sentences have been ordered to run concurrently.
The prosecution case, as unfolded from the record, is that complainant Dhanraj submitted a written report before the Station House Officer, Police Station Industrial Area, District Pali, alleging that while he was taking his dinner, the accused persons, namely, Bheru Lal, Kalu Ram, Deepu and Yogesh, forcibly entered his house. It was alleged that the accused persons abused and assaulted the complainant, his mother, uncle and aunt. It was further alleged that during the occurrence they damaged the electric pole, electric meter and cement sheets and extended threats to cause harm to the complainant and his family members. On the basis of the aforesaid allegations, the complainant requested the police to take appropriate legal action.
Pursuant to the aforesaid report, FIR No.230/2014 came to be registered at Police Station Industrial Area, District Pali. After completion of investigation, the police submitted charge-sheet against the accused persons for the offences punishable under Sections 458, 323 and 427/34 IPC and Sections 3(1)(x) and 3(2) (v) of the SC/ST Act before the competent Court. The case was thereafter committed for trial to the Court of the learned Sessions Judge, Pali and subsequently came to be transferred to the Court of the learned Special Judge, SC/ST Act Cases, Pali.
The learned trial Court framed charges against the appellants for the offences punishable under Sections 459, 323/34 and 327/34 IPC and Sections 3(1)(x) and 3(2)(v) of the SC/ST Act. The appellants denied the charges and claimed trial.
In support of its case, the prosecution examined fourteen witnesses and exhibited the documents relied upon by it. After completion of the prosecution evidence, the statements of the appellants were recorded under Section 313 Cr.P.C., wherein they denied the incriminating circumstances appearing against them and pleaded false implication. In defence, two witnesses were examined and certain documents were also produced.
Upon conclusion of the trial, the learned Court below, after appreciating the evidence available on record, found that the prosecution had failed to establish the charge under Section 459 IPC and the offences under Sections 3(1)(x) and 3(2)(v) of the SC/ST Act. The appellants were accordingly acquitted of those charges. However, the learned trial Court found the appellants guilty of the offences punishable under Sections 341/34, 323/34, 325/34 and 427/34 IPC and sentenced them in the manner noticed hereinabove.
In order to ensure effective and meaningful legal representation to the appellants and to facilitate proper assistance to the Court in the adjudication of the present appeal, Ms.Pernal Lodha, learned counsel, was appointed as Amicus Curiae under the Free Legal Aid Scheme of the Rajasthan State Legal Services Authority. The learned Amicus Curiae has rendered assistance to the Court in examining the record and addressing the issues arising for consideration in the present appeal.
This Court places on record its appreciation for the assistance rendered by the learned Amicus Curiae. The remuneration payable to the learned Amicus Curiae for the assistance so rendered shall be borne by the Rajasthan State Legal Services Authority, in accordance with the rules, norms and conditions governing such appointment.
Learned Amicus Curiae appearing for the appellants assailed the judgment of conviction by submitting that the evidence adduced by the prosecution has not been appreciated in its proper perspective and that the appellants have been falsely implicated in the case. It was contended that the prosecution evidence suffers from material infirmities and inconsistencies and that the conviction recorded by the learned trial Court is, therefore, not sustainable. She, in the alternative, submitted that even if the conviction is maintained, the appellants deserve the benefit of the Probation of Offenders Act, 1958. It was submitted that the appellants are first offenders, that no previous conviction or criminal antecedent has been brought on record against them, and that the occurrence pertains to the year 2014. It was further submitted that the appellants have already faced the rigours of criminal prosecution for a considerable period and that the graver charges levelled against them have resulted in their acquittal. On these considerations, it was prayed that the appellants may be released on probation of good conduct instead of being required to undergo the substantive sentence of imprisonment.
Learned Public Prosecutor opposed the appeal and supported the judgment passed by the learned trial Court.
I have considered the submissions advanced on behalf of the appellants as well as those made by the learned Public Prosecutor and have carefully examined the judgment impugned, the evidence available on record and the material placed before this Court.
At the outset, it deserves to be noticed that the learned trial Court has not accepted the prosecution case in its entirety. The appellants have been acquitted of the charge under Section 459 IPC and of the offences under Sections 3(1)(x) and 3(2)(v) of the SC/ST Act for want of sufficient evidence. Their conviction has ultimately been confined to the offences punishable under Sections 341/34, 323/34, 325/34 and 427/34 IPC.
The evidence of the prosecution witnesses, as appreciated by the learned trial Court, has been examined in the light of the defence set up by the appellants. On an independent consideration of the material available on record, this Court does not find any such material infirmity or perversity in the findings recorded by the learned trial Court which would justify interference with the conviction.
The learned trial Court had the advantage of recording the evidence of the witnesses and appreciating the same in the backdrop of the documentary material and the defence version. The findings of guilt recorded by it are supported by the evidence which has been accepted upon due consideration. Nothing substantial has been brought to the notice of this Court which would render the evidence relied upon by the learned trial Court so unreliable as to make the conviction unsustainable.
It is also significant that the learned trial Court has itself sifted the prosecution case and has extended the benefit of doubt to the appellants in respect of the graver offences. Their acquittal under Section 459 IPC and the provisions of the SC/ST Act demonstrates that the prosecution version was not accepted in its entirety. The conviction has been confined only to those offences which, according to the learned trial Court, stood established from the evidence available on record.
On an overall consideration of the evidence and the reasons recorded by the learned trial Court, this Court finds no sufficient ground to take a different view insofar as the conviction under Sections 341/34, 323/34, 325/34 and 427/34 IPC is concerned. The findings of guilt recorded by the learned trial Court, therefore, call for no interference.
Having upheld the conviction, the question which now arises is whether the substantive sentences imposed upon the appellants should also be allowed to stand in their present form or whether the circumstances of the case warrant extending to them the benefit of the Probation of Offenders Act, 1958.
The question of sentence necessarily requires consideration of not only the nature and gravity of the offence proved against the accused but also the circumstances in which the offence came to be committed and the antecedents and circumstances of the offenders. The sentencing process is not intended to be entirely punitive; in appropriate cases, the possibility of reformation and rehabilitation is also a relevant consideration.
In the present case, the appellants are stated to be first offenders. No previous conviction or criminal antecedent has been brought on record against any of them. The occurrence took place in the year 2014 and, by now, a considerable period has elapsed. During this period, the appellants have faced the entire course of the criminal proceedings arising from the incident.
The nature of the conviction is also a relevant circumstance. The appellants have been acquitted of the graver charge under Section 459 IPC as well as the offences under the SC/ST Act. Their conviction has survived only in respect of the offences punishable under Sections 341/34, 323/34, 325/34 and 427/34 IPC.
So far as the quantum of sentence is concerned, the highest substantive sentence imposed upon each of the appellants is three years' simple imprisonment under Section 325/34 IPC, besides a fine of Rs.10,000/-. The sentence imposed under Section 427/34 IPC is two years, whereas the sentences under Sections 341/34 and 323/34 IPC are one month and one year respectively. The learned trial Court has directed all the substantive sentences to run concurrently. Thus, the effective substantive sentence imposed upon each appellant is three years.
Section 325 IPC prescribes imprisonment which may extend to seven years. However, the fact that the statutory maximum punishment is seven years does not, by itself, conclude the question whether the offender should necessarily undergo incarceration. The Court is required to examine the circumstances of the individual case and the character and antecedents of the offender while considering the applicability of the reformative provisions of law.
Section 4 of the Probation of Offenders Act, 1958 recognises the power of the Court, in appropriate cases, to release an offender on probation of good conduct instead of sentencing him to immediate imprisonment, having regard to the circumstances of the case, the nature of the offence and the character of the offender.
In the present case, the appellants' status as first offenders assumes significance. There is no material before this Court to indicate any previous conviction against them or to suggest that they are habitual offenders. The occurrence is now more than a decade old. The appellants have remained subjected to the anxiety and uncertainty of criminal proceedings for all these years.
At the same time, this Court is conscious of the fact that the appellants have been found guilty of causing grievous hurt and of other offences arising out of the same occurrence. The nature of the proved conduct, therefore, cannot be completely disregarded. The benefit of probation is not to be granted as a matter of course merely because an offender has no previous conviction. The Court has to examine whether, in the totality of the circumstances, an opportunity for reformation can reasonably be extended.
In the facts of the present case, the cumulative effect of the circumstances noticed above persuades this Court to take a reformative view. The appellants are first offenders; no previous conviction has been shown; the occurrence is of the year 2014; the graver charges have not been established against them; and the highest substantive sentence actually imposed is three years, with all substantive sentences directed to run concurrently.
The passage of time is also a circumstance which cannot be completely overlooked. The appellants have undergone the entire ordeal of investigation, trial and appeal for a prolonged period. Nothing has been brought on record to suggest that, during this period, they have indulged in any subsequent criminal activity. In such circumstances, the Court considers that an opportunity for reformation, subject to the safeguards contemplated by law, would adequately meet the ends of justice.
The grant of probation does not efface the finding of guilt nor does it amount to an acquittal. The conviction recorded against the appellants would remain intact. The modification is confined only to the manner in which the sentence is to operate, by extending an opportunity to the appellants to maintain good conduct without undergoing the substantive sentence of imprisonment.
Having regard to the totality of the circumstances, this Court is satisfied that the appellants deserve to be extended the benefit of Section 4 of the Probation of Offenders Act, 1958.
Consequently, the appeal is partly allowed. The conviction of the appellants for the offences punishable under Sections 341/34, 323/34, 325/34 and 427/34 IPC, as recorded by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Pali, vide judgment dated 20.07.2019, is hereby affirmed.
However, having regard to the facts and circumstances noticed hereinabove, particularly the fact that the appellants are first offenders, no previous conviction or criminal antecedent has been brought on record against them, the occurrence pertains to the year 2014, the graver charges have resulted in their acquittal and the highest substantive sentence imposed upon them is three years, the appellants are extended the benefit of Section 4 of the Probation of Offenders Act, 1958.
Accordingly, instead of undergoing the substantive sentences of imprisonment imposed by the learned trial Court, each of the appellants shall be released on probation of good conduct upon furnishing a personal bond in the sum of Rs.2000/- with one surety in the like amount to the satisfaction of the learned trial Court, undertaking to maintain peace and good behaviour and to appear and receive sentence as and when called upon during the period of probation.
The learned trial Court shall take necessary steps in accordance with law for giving effect to the aforesaid order and shall impose such lawful conditions as may be considered appropriate in the facts and circumstances of the case.
It is made clear that the grant of probation shall not have the effect of setting aside or effacing the conviction recorded against the appellants. The finding of guilt shall remain undisturbed and only the substantive sentence of imprisonment shall stand modified in terms of this judgment. The sentence of fine imposed by the learned trial Court shall remain operative and shall be dealt with in accordance with law. The period of custody already undergone by the appellants, if any, shall be given due adjustment in accordance with law.
The remuneration payable to Ms. Prenal Lodha, learned Amicus Curiae, shall be borne by the Rajasthan State Legal Services Authority and shall be paid to her in accordance with the rules and norms governing appointment and remuneration of learned Amicus Curiae under the Free Legal Aid Scheme.
The impugned judgment dated 20.07.2019 stands modified to the aforesaid extent.
The record of the learned trial Court, if requisitioned, be returned forthwith.
All pending applications, if any, stand disposed of.