1. Heard Mr. H.K. Shikarwar, learned counsel for the appellants as well as Mr. Rajesh Kumar, learned A.P.P. for the State.

2. At the outset, learned counsel for the appellants has submitted that a supplementary affidavit has been filed on behalf of the appellants stating therein that original appellant no. 14 namely, Ram Bilas Singh and original appellant no. 17 namely, Narayan Singh, have died during pendency of this appeal, therefore, the appeal on behalf of original appellant nos. 14 & 17 may be abated.

3. Considering the same, the appeal filed on behalf of original appellant no. 14 namely, Ram Bilas Singh and original appellant no. 17 namely, Narayan Singh stands abated.

4. Now the appeal is being heard on behalf of surviving appellants, who are re-numbered.

5. The present Criminal Appeal is directed against the judgment of conviction dated 02.07.2008 and order of sentence dated 07.07.2008 passed by learned Additional Sessions Judge, Fast Track Court No. 1, Palamau in Sessions Trial No. 200 of 2002, whereby and whereunder, the appellants have been held guilty for the offence under Sections 147, 148, 326/149 and 427 of the I.P.C. and they were sentenced to undergo R.I. of five years along with fine of Rs. 5,000/- with default stipulation under Section 326 of I.P.C. and also sentenced to undergo R.I. for one year for the offence under Section 427 of I.P.C. and R.I. for two years under Section 148 of I.P.C. No separate sentence was passed under Section 147 of I.P.C. All the sentences were directed to run concurrently.

FACTUAL MATRIX

6. The factual matrix giving rise to this appeal is that on 02.04.2001 at about 10 A.M., the procession of Ramnavami of Village Chakarbhoga proceeded and was about to reach near Village – Jhariwa, then one Samsuddin Mian suggested them to go by the scheduled way, but they protested and told that they have licence to go by the same way and abused them and attacked with lathi, farsa, bomb and other weapons. They also damaged the hut by bricks, stones and lathi, in which, the appellants and many other peoples were involved and inflicted injury to Jahoor Ansari, Gulab Mian, Noor Mohammad, Mubarq Ansari. They also inflicted injury on ladies and children.

7. On the basis of written report of informant Jahoor Ansari, FIR being Chainpur P.S. Case No. 40 of 2001 was registered against the appellants for the offence under Sections 147, 148, 149, 337, 323, 324, 307, 452, 427 of the I.P.C. and after investigation, charge sheet was submitted under Sections 147, 148, 149, 337, 323, 324, 326, 448, 307 and 427 of the I.P.C. against the 29 persons including the appellants. After taking cognizance of the offence, the learned Magistrate committed the case to the Court of Sessions; where S.T. No. 200 of 2002 was registered. The charge for the offence under Sections 147, 148, 307/149, 326/149, 427 and 337 of the I.P.C. were framed against accused persons and read over and explained to them, to which, they pleaded not guilty and claimed to be tried.

8. In course of trial, the prosecution has examined altogether 06 witnesses and also adduced following documentary evidence:-

                  Exhibit-1 : Injury Report of Amiruddin Mian.

                  Exhibit-1/1 : Injury Report of Gulabi Ansari.

                  Exhibit-1/2 : Injury Report of Nuraisha Khatoon.

                  Exhibit-1/3 : Injury Report of Jahur Ansari.

9. On the other hand, no oral evidence has been adduced by the defence. However, the defence has adduced following documentary evidence:

              



10. After conclusion of trial, the learned trial court, after considering the oral as well as documentary evidence available on record, has convicted and sentenced the appellants, as stated above, which is assailed in this appeal.

11. Learned counsel for the appellants, without touching the merits of the case, has confined himself on the point of extension of benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants. It was first offence of the appellants and they have never been convicted. There was case and in the counter case between the parties and the counter case, the informant party, who are accused in the counter case, have been acquitted from the charges leveled against them.

12. On the other hand, learned APP appearing for the State has opposed the contentions raised on behalf of the appellants and defended the impugned judgment and order on merits. So far extension of benefit of Section 4 of Probation of Offenders Act, 1958 is concerned, it is fairly submitted that it was first offence of the appellants.

13. I have given anxious consideration to the genesis, manner and place of occurrence. It appears that on the occasion of Ram Navami procession, a sudden scuffled took place between two communities. There was exchange of assault from both sides. There was counter case, in which all the accused persons have been acquitted by the learned trial court. There is specific overt act only against appellant nos. 5 and 18, who have caused injury by means of sword and gadasa respectively. The injuries were found to be grievous in nature and the appellants have been convicted under Section 326 of the I.P.C. with the aid of Section 149 of the I.P.C. The occurrence is of the year 2001 and more than two decades have passed and also the communal harmony has been restored. The appellants have been denied the benefit of Section 4 of Probation of Offenders Act, 1958 without recording any special reasons by the trial court, to which the appellants are entitled.

14. Considering the facts and circumstances of the case, the nature of offence committed by the appellants, the genesis and manner of occurrence, age, antecedent and character of the appellants, it is expedient in the ends of justice to extend the benefit of Section 4 of the Probation of Offenders Act, 1958 to the appellants also, for which the appellants appear to be entitled, instead of awarding substantive sentence of imprisonment.

15. In view of the above, this appeal is dismissed on merits with modification in sentence to the extent that instead of undergoing substantive sentence of imprisonment awarded to the appellants by learned Trial Court, the appellants is hereby directed to be released on furnishing bond of Rs.10,000/- (Rupees Ten Thousand) each with one surety of like amount to the satisfaction of learned trial court under Section 4 of the Probation of Offenders Act, 1958 within two months from the date of this order for maintaining peace and be of good behavior for one year from the date of furnishing the bond.

16. If the bond is not furnished within above stipulated time, the learned Trial Court shall issue notice upon the appellants to secure their attendance for furnishing the bond.

17. In case of violation of terms and conditions of the bond, the appellants shall be called upon to receive the sentence already awarded to them.

18. Pending I.A. if any stands disposed of.

19. Let a copy of this judgment along with trial court record be sent back to the court concerned immediately for information and needful.