IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1182 of 2001 Old. Criminal Appeal No. 1271 of 1997 Dated of Decision: 26.03.2010 Hari Singh and others …Appellants Versus State of U.P. …Respondent Present: Mr. B.S. Parihar, learned counsel for the appellants. Mr. Nandan Arya, learned A.G.A. for the State. Hon’ble Nirmal Yadav, J. This appeal is directed against the judgement and order dated 10.07.1997 passed by the IVth Additional Sessions Judge, Nainital in Sessions Trial No. 102 of 1992 whereby all the three accused-appellants have been convicted under Sections 323 read with Section 34 of the I.P.C. and sentenced them to six months rigorous imprisonment for each and under Section 452 sentenced to rigorous imprisonment for two years and fine of Rs. 500/- each. In default of payment of fine to further undergo simple imprisonment of two months each. They have been acquitted of the charges under Section 307 read with Section 34 of the I.P.C. Brief facts of case as per the prosecution are, that on 19.10.1990 at about 8:00 p.m. a loudspeaker was creating noise at a very high volume in the house of the accused. Kunwar Sen objected and requested Hari Singh to lower down the volume of the loudspeaker. The accused-appellants got enraged and came inside the house of the complainant and caused injuries to him with lathi and stones. The matter was reported by Rishipal son of the complainant. 2 Injured Kunwar Sen was medically examined by Dr. R.A. Gupta who found the following injuries: - (i) Lacerated wound 3 x 0.5 c.m. scalp deep on tip of head 6 c.m. above the right eyebrow. (ii) Lacerated wound 3 x 0.5 c.m. scalp deep on top of head 5 c.m. above the right eyebrow. (iii) Lacerated wound 2.5 c.m. x 0.5 c.m. on left side of scalp 3 c.m. above the left Pinna. (iv) Lacerated wound 2 c.m. x 0.2 c.m. on left side of upper lip. (v) Complain of pain on right forearm, left upper arm, back and backside of right thigh. On the completion of the investigation, all the three accused were challaned under Section 307 read with Section 34 of the I.P.C. and Section 452 read with Section 34 of the I.P.C. to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as six witnesses. The statements of the accused- appellants were recorded under Section 313 Cr.P.C. They denied all the allegations of prosecution and pleaded innocence and false implication. The trial court, after taking into consideration all aspects of the matter, convicted all the accused-appellants under Section 452 read with Section 34 of the I.P.C. and Section 323 read with Section 34 of I.P.C. Being aggrieved by the conviction order dated 10.07.1997 passed by the learned trial court, the appellants filed the present appeal. 3 I have heard Mr. B.S. Parihar, learned counsel for the appellants and Mr. Nandan Arya, learned A.G.A. for the State and perused the material available on record. Learned counsel for the appellants at the outset stated at the bar that he does not wish to challenge the order of the trial court on merit and addressed the arguments on the point of the sentence only. Learned counsel for the appellants submitted that accused-Hari Singh was 65 years of age at the time of occurrence and at present he must be 85 years old. Atar Singh and Ranvir Singh were young men of 26 years and 19 years respectively at the time of occurrence. He further submitted that occurrence took place about 20 years ago and in case the accused-appellants are now ordered to serve the sentence, it would adversely affect their family life. He further submitted that all the three accused are the first offenders having no criminal history. He has therefore requested that a lenient view be taken and accused be granted the benefit of Section 4 of the Probation of Offenders Act, 1958. After taking into consideration the entire facts and circumstances of the case, this Court is of the opinion that the accused-appellant deserve to be granted the benefit of Section 4 of the Probation of Offenders Act, 1958. Keeping in view that occurrence took place about 20 years ago, now accused Hari Singh is in his late nineties and all the accused belong to the same family. There was no premeditation or consultation before commission of crime. The occurrence was sudden and without any ulterior motive. After a lapse of 20 years, we feel that it would be disturbing the family life of the accused persons who must be having children and family of their own. Both the parties are neighbours and living in the same vicinity. It would also be in the interest of society to keep harmony in the locality. 4 It is not disputed by the learned A.G.A. that there is no criminal history of the accused and they are the first offenders. Accordingly the accused-appellants are ordered to be released on probation of good conduct on entering into a bond with the two sureties each for the period of six months and in case of violation of any condition, they can be recalled for serving out the sentence. The accused appellants are directed to appear in person before the Chief Judicial Magistrate, Nainital on 12th April 2010 and the Chief Judicial Magistrate, Nainital is directed to do the needful. The appeal is partly allowed with the above modification in the order of trial court. (Nirmal Yadav, J.) VKG 26.03.2010