Neutral Citation No. - 2024:AHC-LKO:52489
Court No. - 16
Case :- CRIMINAL APPEAL No. - 371 of 2006
Appellant :- Raj Narain And Others
Respondent :- State of U.P.
Counsel for Appellant :- Ashok Kumar Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Shamim Ahmed,J.
1. List of cases has been revised and the case is being taken up in the revised call
for hearing.
2. Heard learned counsel for the parties.
3. Shri Ashok Kumar Srivastva, learned Counsel for the appellants submits that
all the appellants i.e. the appellant No.1, namely- Raj Narain, appellant No.2,
nmaley- Raj Kesar, appellant No.3, namely-Vijai Bahadur Singh and appellant
No.4, namely-Nirmal Kumar Singh are alive. Thus, in view of the submission
made by learned Counsel for the appellants at the Bar, this Court is proceeding
in respect of all the appellants to decide this appeal.
4. The instant Criminal Appeal under Section 374(2) Cr.P.C. has been moved on
behalf of the appellants, against the judgment and the order dated 06.02.2006
passed by learned Additional Sessions Judge/ FTC Vth, Pratapgarh in Sessions
Trial No.172/2001, Crime No.146 of 2000 under Section 323, 336, 308 I.P.C.
convicting the appellants under Section 323 I.P.C. for six months rigorous
imprisonment under Section 336 I.P.C. for three months rigorous imprisonment
and further convicting the appellants under Section 325 I.P.C. for three years
rigorous imprisonment and Rs.2000/- with default stipulations.
5. The prosecution case in brief is that complainant as well as the accused
persons were resident of same village. There was some old enmity in between
the parties. On 13.09.2000 at about 9:30 A.M., when the complainant was doing
some construction work in his chappar the accused persons armed with lathi,
danda and stones, reached the spot and started beating the complainant and his
family members. On hue and cry, the nearby villagers arrived at the spot, then
the accused persons fled away from the spot.
6. On the basis of written report submitted by the first informant, the first
information report was lodged under Sections 323, 336 I.P.C., Police Station
Raniganj, District Pratapgarh.
7. The Investigating Officer during investigation visited the place of occurrence
and prepared the site plan and even recorded the statement of witnesses and after
completing the investigation submitted the charge sheet against the appellants by
the Investigating Officer.
8. After submission of charge sheet before Court of learned Magistrate the said
case was committed to the Court of Session wherein it was registered as S. T.
No. 172/2001 against the accused and charges were framed against the accused
persons, wherein the accused / appellants denied the charges leveled against
them and claimed to be tried.
9. In order to substantiate its case, prosecution examined total six prosecution
witnesses.
10. That after closing of the evidence, statement of accused/ appellant under
section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence
and other circumstances, in which the appellants denied the prosecution story
and the entire prosecution story was said to be wrong and concocted.
11. No evidence in defence was adduced by the accused/ appellants before the
learned trial court.
12. Thereafter, the learned trial court after hearing learned counsel for both the
parties and appreciating the entire evidence oral as well as documentary, found
the accused / appellants guilty whereby convicting the appellants under Section
323 I.P.C. for six months rigorous imprisonment under Section 336 I.P.C. for
three months rigorous imprisonment and further convicting the appellants under
Section 325 I.P.C. for three years rigorous imprisonment and Rs.2000/- with
default stipulations.
13. Feeling aggrieved and dissatisfied with the impugned judgment and order of
conviction, the accused-appellants have preferred the present appeal.
14. Learned counsel for the appellant submitted that the State of Uttar Pradesh
has its own local law of probation i.e. Uttar Pradesh First Offenders Probation
Act, 1938. He further submitted that the Probation of Offenders Act, 1958
(Central Act) is also applicable in the State of Uttar Pradesh as held by Hon'ble
the Supreme Court in the case of Mohd. Hashim Vs. State of U.P.; (2017) 2
SCC 198. Thus, learned counsel for the appellants submitted that the benefit of
the aforesaid Act of 1958 may be granted to the appellants.
15. Learned counsel for the appellants further submitted that he does not want to
press the appeal on merits. He has submitted that the incident took place 23
years ago and there is no further criminal antecedent against the appellant. The
delay in trial deprives the right of the appellants of speedy trial and he may be
given benefit of first offender and appellants may be extended the benefit of
Probation of Offenders Act, 1958 (herein after referred as the Act of 1958). He
further submitted that appellants are first time offender and are not previously
convicted in any case. He further submitted that it is the Court which may
consider the benefit of Section 4 of the Act of 1958 to the accused-appellants.
16. Learned A.G.A. on the other hand opposed the appeal and has submitted that
there is no material irregularity or illegality committed by the trial court and
keeping in view the evidence on record, accused-appellants have been rightly
convicted.
17. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958
could be extended to the accused-appellants on certain stipulations as specified
in Section 4 of the Act of 1958. He further submits that as per his instructions,
the accused-appellants have no previous criminal history.
18. After considering the arguments advanced by the parties and after perusal of
the material available on record, this court finds that except apart the merits of
the case, so far as the prayer of learned counsel for the appellant for providing
benefits of Section 4 of the Act of 1958 is concerned, it is essential to discuss the
legal position and law propounded by the Apex Court.
19. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted
hereunder:
"3. Power of court to release certain offenders after admonition.-
"Where 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 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
section 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 Section 4.
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
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:
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."
20. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965
SC 444, while discussing the purpose and object of Probation of Offenders Act,
1958, has observed in para no. 4, as follows:—
"4. 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. Broadly stated the Act
distinguishes offenders below 21 years of age and those above that
age, and offenders who are guilty of having committed an offence
punishable with death or imprisonment for life and those who are
guilty of a lesser offence. While in the case of offenders who are above
the age of 21 years, absolute discretion is given to the court to release
them after admonition or on probation of good conduct, subject to the
condition laid down in the appropriate provision of the Act, in the
case of offenders below the age of 21 years an injunction is issued to
the court not to sentence them to imprisonment unless it is satisfied
that having regard to the circumstances of the case, including the
nature of the offence and the character of the offenders, it is not
desirable to deal with them under Ss. 3 and 4 of the Act."
21. Further the Hon'ble Supreme Court in the case of Ved Prakash vs State of
Haryana, (1981) 1 SCC 447 : AIR 1981 SC 643 while discussing on the duty
of Bench and Bar regarding compliance of Section 360 Code of Criminal
Procedure read with Section 4 of Probation of Offenders Act, 1958 was pleased
to observe as under:—
"The offence, for which conviction has been rendered, is one which
will be attracted by S. 360 or at any rate the Probation of offenders
Act, 1958. The materials before us are imperfect because the Trial
Court has been perfunctory in discharging its sentencing functions.
We must emphasise that sentencing an accused person is a sensitive
exercise of discretion and not a routine or mechanical prescription
acting on hunch. The Trial Court should have collected materials
necessary to help award a just punishment in the circumstances. The
social background and the personal factors of the crime-doer are very
relevant although in practice Criminal Courts have hardly paid
attention to the social milieu or the personal circumstances of the
offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the
sentencing Court to be activist enough to collect such facts as have a
bearing on punishment with a rehabilitating slant. The absence of
such materials in the present case has left us with little assistance
even from the counsel. Indeed members of the bar also do not pay
sufficient attention to these legislative provisions which relate to
dealing with an offender in such manner that he becomes a non-
offender. We emphasise this because the legislation which relate to
amelioration in punishment have been regarded as 'Minor Acts' and,
therefore, of little consequence. This is a totally wrong approach and
even if the Bar does not help, the Bench must fulfil the humanising
mission of sentencing implicit in such enactments as the Probation of
offenders Act."
22. That it is also noteworthy that this Hon'ble Court in the case of Subhash
Chand vs State of U.P; [2015 Law Suit (All) 1343 , has emphatically laid
down the need to apply the law of probation and give benefit of the beneficial
legislation to accused persons in appropriate cases. This court issued following
directions to all trial courts and appellate courts:—
"It appears that the aforesaid beneficial legislation has been lost sight
of and even the Judges have practically forgotten this provision of
law. Thus, before parting with the case, this Court feels that I will be
failing in discharge of my duties, if a word of caution is not written for
the trial courts and the appellante courts. The Registrar General of
this Court is directed to circulate copy of this Judgment to all the
District Judges of U.P., who shall in turn ensure circulation of the
copy of this order amongst all the judicial officers working under him
and shall ensure strict compliance of this Judgment. The District
Judges in the State are also directed to call for reports every months
from all the courts, i.e. trial courts and appellate courts dealing with
such matters and to state as to in how many cases the benefit of the
aforesaid provisions have been granted to the accused. The District
Judges are also directed to monitor such cases personally in each
monthly meeting. The District Judges concerned shall send monthly
statement to the Registrar General as to in how many cases the trial
court/appellate court has granted the benefit of the aforesaid
beneficial legislation to the accused. A copy of this order be placed
before the Registrar General for immediate compliance."
23. Further the Hon'ble Apex Court in State of Maharashtra vs Jagmohan
Singh Kuldip Singh Anand; (2004) 7 SCC 659 has extended the benefit of
Probation of Offenders Act, 1958 to the appellants, and observed as under:—
"The learned counsel appearing for the accused submitted that the
accident is of the year 1990. The parties are educated and neighbors.
The learned counsel, therefore, prayed that benefit of the Probation of
Offenders Act, 1958 may be granted to the accused. The prayer made
on behalf of the accused seems to be reasonable. The accident is more
than ten years old. The dispute was between the neighbors over a
trivial issue of claiming of drainage. The accident took place in a fit
of anger. All the parties educated and also distantly related. The
accident is not such as to direct the accused to undergo sentence of
imprisonment. In our opinion, it is a fit case in which the accused
should be released on probation by directing them to execute a bond
of one year for good behaviour."
24. That coming to the point of desirability of extending the benefit of Probation
Act to the accused/ appellants in Sitaram Paswan and Anr v. State of Bihar,
AIR 2005 SC 3534, Supreme Court held as under:-
"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. Thebenefit 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."
25. That it is also noteworthy that Hon'ble Apex Court in the case of Mohd.
Hashim v. State of U.P and Ors., AIR 2017 SC page 660, was pleased to
observe as under:
"20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba
Rao, J., speaking for the majority, opined thus:-
"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. Broadly stated, the Act
distinguishes offenders below 21 years of age and those above that
age, and offenders who are guilty of having committed an offence
punishable with death or imprisonment for life and those who are
guilty of a lesser offence. While in the case of offenders who are above
the age of 21 years absolute discretion is given to the court to release
them after admonition or on probation of good conduct, subject to the
conditions laid down in the appropriate provisions of the Act, in the
case of offenders below the age of 21 years an injunction is issued to
the court not to sentence them to imprisonment unless it is satisfied
that having regard to the circumstances of the case; including the
nature of the offence and the character of the offenders, it is not
desirable to deal with them under Sections 3 and 4 of the Act."
26. That Section 4 of the Act of 1958 is applicable where a person is found
guilty of committing an offence where punishment is neither life sentence nor
death. The Court may release such an accused on probation of good conduct on
his furnishing a bond as mentioned in the Section. The Court in applying the
provisions of this Section is also required to consider the circumstances of the
case, character of the offender and nature of the offence before exercising its
discretion.
27. A perusal of the aforesaid provisions of the Act of 1958 thus clearly indicate
that Section 4 of the Act of 1958 does not create any distinction between the
category of offenders and the provision of the said Section can be made
applicable in any case where the offender is found guilty for committing an
offence which is not punishable with death or imprisonment for life. Incidentally
certain exceptions have been indicated by the Hon'ble Supreme Court as in the
case of Smt. Devki Versus State of Harayana; 1979 (3) SCC 760 where the
Hon'ble Supreme Court has held that benefit of Section 4 of the Act of 1958
could not be extended to a culprit who was found guilty of abducting a teenaged
girl and forcing her to sexual submission with criminal motive. Similarly in the
case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus
Natwar Lal Damodar Das Soni, the Hon'ble Supreme Court declined to extend
the benefit of the Act of 1958 to an accused found guilty of gold smuggling.
28. That Hon'ble Apex Court in case of Jagat Pal Singh & others vs. State of
Haryana, AIR 2000 SC 3622 has given the benefit of probation while
upholding the conviction of accused persons under Sections 323, 452, 506 IPC
and has released the accused persons on executing a bond before the Magistrate
for maintaining good behaviour and peace for the period of six months.
29. Similarly this Hon'ble Court in case of Virendra Kumar Vs State of U.P.;
2022(120)ACrC 392 has given benefit of probation while upholding the
conviction of revisionist under section 7/16 of Food Adulteration Act and had
released the accused persons on executing a bond before Magistrate for
maintaining good behaviour and peace for period of six months.
30. That it is noteworthy that the incident took place way back in the year 2001.
The accused-appellants have suffered in matter for past 23 years and there is no
any criminal antecedent between the parties during these years.
31. Considering the fact and circumstances of the case, I am of the view that the
benefit of provision of the Act of 1958 should be provided to the accused /
appellants.
32. In the light of the above discussion, as far as it relates with the conviction of
the appellant No.1, namely- Raj Narain, appellant No.2, nmaley- Raj Kesar,
appellant No.3, namely-Vijai Bahadur singh and appellant No.4, namely-Nirmal
Kumar Singh is maintained but the sentence is modified. Instead of sending the
appellant No.1, namely- Raj Narain, appellant No.2, nmaley- Raj Kesar,
appellant No.3, namely-Vijai Bahadur singh and appellant No.4, namely-Nirmal
Kumar Singh to jail, they are given benefit of Section 4 of The Probation of
Offenders Act, 1958 and they are directed to file two sureties each to the tune of
Rs 20,000/- along with their personal bonds before District Probation Officer
concerned and also an undertaking to the effect that they shall maintain peace
and good behaviour during the period of one year from today. The said bonds
are to be filed by the appellant No.1, namely- Raj Narain, appellant No.2,
nmaley- Raj Kesar, appellant No.3, namely-Vijai Bahadur singh and appellant
No.4, namely-Nirmal Kumar Singh within a period of three months from the
date of this judgment.
33. In case of breach of any of the above conditions, the appellant No.1, namely-
Raj Narain, appellant No.2, nmaley- Raj Kesar, appellant No.3, namely-Vijai
Bahadur Singh and appellant No.4, namely-Nirmal Kumar Singh shall be taken
into custody and shall have to undergo sentence awarded to them.
34. With the above modifications, the instant criminal appeal is partly allowed.
35. A certified copy of the order be also sent to the court concerned for
compliance.
36. Office is directed to communicate this order to the court concerned for
necessary compliance.
37. Trial court record, if any, shall also be sent back to the district court
concerned.
Order Date :- 31.7.2024
Piyush/-
Digitally signed by :-
PIYUSH YADAV
High Court of Judicature at Allahabad,
Lucknow Bench