Ram Paswan & Anr Vs. State of Bihar  Insc 493 (19
Bhan & P.P. Naolekar
out of SLP (Crl.) No.3214 of 2005) P.P. NAOLEKAR, J.
Sitaram Paswan and Raj Kumar, Accused-2 were convicted and sentenced for
imprisonment for three months under Section 323 I.P.C. and six months under
Section 324 read with Section 34 of the Indian Penal Code.
prosecution case, in short, is that PW-5, Paltoo Paswan lodged the FIR,
alleging therein that on 28.7.1998 at about 10.00 AM when his wife was proceeding towards the market, she fell
in the ditch, filled with water on the way and was not visible. She made hue
and cry as to who had dug the ditch. On this A-1 came out of his house and
replied that he has dug the ditch. Smt. Krishna Devi, PW-2 scolded him and
asked him to fill up the ditch. On this, A-1 assaulted Krishna Devi with fists.
She cried for help, her husband, Paltoo Paswan, PW-5 along with his son Vijay
Kumar, PW-4 rushed at the spot. Seeing them, A-1 came with sword along with Raj
Kumar when they reached the spot. Raj Kumar assaulted Paltoo Paswan, PW-5 on
the head with sword and also assaulted Vijay Kumar with sword and Sitaram Paswan,
A-1, with Danda.
accused-appellants faced trial. As many as 6 witnesses were examined by the
prosecution. Witnesses, PW-1 Kalika Singh and PW-3, Raghubansh Raut are
independent witnesses whereas PW-2, Krishna Devi, PW-4, Vijay Kumar and PW-5, Paltoo
Paswan are related and injured witnesses. The statements recorded of these
witnesses are more or less similar. They stated that Sitaram Paswan assaulted
Krishna Devi on her mouth with fists. Thereafter Paltoo Paswan and Vijay Kumar
reached there. Raj Kumar took sword from the hands of Sitaram and gave blows on
the head of Paltoo Paswan and Vijay Kumar, PW-5 and PW-4 respectively.
was also made with Danda. The medical evidence produced has corroborated the
statements of these witnesses.
version is that the accused person have been falsely implicated. The Courts,
after consideration of the entire evidence on record, have found the evidence
reliable and accordingly convicted the appellants. The conviction and sentence
was unsuccessfully challenged before the High Court. However, the High Court
acquitted the appellant of the charge under Section 341 IPC and reduced the
sentence to three months from six months under Section 323, IPC and six months
from one year under Section 324 read with Section 34, Indian Penal Code in view
of the nature of offence which took place suddenly and as there was no previous
conviction against them.
the three Courts have already held that the prosecution has proved its case by
cogent evidence and we do not find any ground to take a different view in the
matter and acquit the accused-appellants.
urged before us by the learned counsel for the appellants that the prayer for
releasing the appellants on probation under the Probation of Offenders Act 1958
should have been considered by the Court when such request was made before the
Magistrate and the same is apparent from the order of the Magistrate when he
records: "learned defence counsel has submitted that the convicts have no
previous conviction and they are young, so considering the nature of the
offence, they may kindly be released under Section 3 of Probation of Offenders
Act". Learned counsel for the appellants submitted before this Court 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 the
accused persons on probation by this Court.
4 of the Probation of Offenders Act empowers the Court to release a convicted
person on his entering into a bond with or without sureties on probation when
he is found guilty of committing of any offence, not punishable with death or
imprisonment for life. Relevant portion of Section 4 of the Probation of
Offenders Act, 1958 reads thus:
4 - Power of Court to release certain offenders on probation of good conduct –
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 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 behaviour."
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 circumstances
of the case. The powers under Section 4 of the Probation of Offenders Act vest
with the Court when any person is found guilty of the offence committed, not
punishable with death or imprisonment for life. This power can be exercised by
the Courts while finding the person guilty and if the Court thinks that having
regard to the circumstances of the case, including the nature of the offence
and the character of the offender, benefit should be extended to the accused,
the power can be exercised by the Court even at the appellate or revisional
stage and also by this Court while hearing appeal under Article 136 of the
Constitution of India.
fact as emerged in this case. It is apparent that the incident occurred at the
spur of the moment and is traverse in nature.
is no material on record to indicate that the appellants have any previous
conviction. In the absence of such evidence, we treat appellants as first
offenders. A-1, namely, Sitaram Paswan has made the assault using Danda and the
fists and caused simple injuries to Krishna Devi, Paltoo Paswan and Vijay
Kumar, PW-2, PW-5 and PW-4 respectively. He has been convicted with the aid of
Section 34, under Section 324 and under Section 323 I.P.C. whereas the case of
A-2 Raj Kumar is different. He has caused injuries to Paltoo Paswan and Vijay
Kumar using the sword. Injury found on Paltoo Paswan is sharp cuts on left side
of the head and on Vijay Kumar, cut injury on the left side of the head.
regard to the aforesaid circumstances and taking the overall view of the
matter, we feel that the accused-appellant Sitaram Paswan is entitled for the
benefit under Section 4 of the Probation of Offenders Act. Therefore, while
confirming his conviction, we direct that he be released on probation on his
entering into a bond for Rs.10,000/- within the period of three weeks from
today before the Court of S.D.J.M. (Sadar), Sitamarhi, for keeping peace and
good behaviour. The appeal of the Raj Kumar is dismissed and he would surrender