HIGH COURT OF UTTARAKHAND AT NAINITAL v. Mr. S.S. Chauhan, D.A.G. with Mr. Vikash Uniyal, B.H. for the State

arrested, and an FIR for murder under Section 302 IPC was filed. Four days later, on January 22, 2005, Hema's 1 husband, Suresh Chandra Kotiyal, provided a written statement, confirming the identities of his wife and son and requesting legal action. On February 20, 2005, over a month after the incident, Deepak's body was recovered near Kodiyala and identified. Hema's body, however, was never found. Following the investigation, a charge sheet for murder was filed against Ved Prakash Bhatt in the Magistrate's court.

3. Magistrate’s Court took cognizance of the criminal case against the accused-Ved Prakash. The accused was summoned and given copies of the prosecution papers. Since the case was of criminal nature, the case was handed over to the Sessions Court for trial, on the basis of which this session suit was registered in this court against the accused-Ved Prakash. Accused-Ved Prakash was summoned and the defence counsel and the District Government Advocate (Criminal) were heard on the question of charge and on finding sufficient grounds, a charge under Section 302 of the IPC was framed against accused-Ved Prakash, which the accused denied and sought trial.

4. As many as nine witnesses were produced by the prosecution to prove its case against the appellant. They are PW1-Constable Narendra Singh Rawat, PW2- Sub-Inspector Basant Lal, PW3-Smt. Reeta Devi, PW4- Smt. Renuka, PW5-Suresh Chandra Kotiyal, PW6- Hemank, PW7-Dr. Ajay Kumar Gairola, PW8- Constable Kanta Prasad and PW9-Mahesh Joshi (Police Station in-charge).

5. After prosecution evidence, the statements of accused-appellant were recorded under Section 313 2 Cr.P.C. in which they stated that a false case was filed against him.

6. On completion of trial, the trial court convicted and sentenced the accused-appellant as mentioned in sentence part of this judgment.

7. I have heard learned counsel for the parties at length and have carefully perused the entire documents available on record.

8. Learned counsel for the appellant having argued extensively finally submitted before this Court that the judgment and order passed by the trial court is based on the evidence which is not reliable due to several contradictions and developments during trial. He also argued and submitted alternately that if this Court is not convinced on the arguments advanced by him, the appellant may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter to be referred to as ‘the Act of 1958’).

9. To this submission learned State counsel has no serious objection and he also admitted that the appellant can be extended the benefit of the Act of 1958.

10. It was also argued on behalf of the appellant that it was his first and only offence; appellant has no criminal antecedent; he belongs to the poor strata of society and also has liability. It is also submitted that alleged incident was not a premeditated one.

11. Learned State Counsel also stated before this Court that he has not received any report regarding any other criminal antecedents of the appellant except this case. 3

12. Having heard the learned counsel for the appellant on merits of the appeal, I do not find any reason to interfere in the well reasoned judgment and order passed by the learned trial court. The prosecution succeeded in proving its case beyond all reasonable doubt against the appellant with cogent and unshaken evidence. Thus, no interference is warranted.

13. Now, this Court would embark upon to examine the next submission as to whether benefit of the Act of 1958 can be extended to the appellant.

14. It is strenuously submitted by the learned counsel for the appellant that provisions of Section 4 of the Act of 1958 may be pressed into service to postpone the sentence awarded by the Court below and to release the appellant on the bond of good-conduct to be executed by him before the concerned Probationary Officer or before trial court.

15. In order to buttress his argument, learned counsel for the appellant placed reliance on the judgment passed by a Coordinate Bench of this Court in Criminal Revision No.154 of 2012 Harendra Singh Vs. State of Uttarakhand dated 29.08.2020, wherein the Court has granted the benefit of the Act of 1958. Para nos.9 and 14 of the aforesaid judgment, which contained Apex Court’s judgments on the point are quoted below:- “Para-9: In this regard, the Hon’ble Apex Court in the case of “Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola” reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under: increasing emphasis on “7. Probation of Offenders Act has been enacted in view of reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of 4 having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act.” Para-14: In this regard, the Hon’ble Apex Court in the case of “Paul George vs. State of NCT of Delhi” reported in 2008 SCC (Cri.) 2, 768, in paragraph no.12, has held as under:

12. This litigation has been going on for the last 20 years and has been fought tenaciously through various courts, we are also told that the appellant who has had a good career throughout but for this one aberration has since been dismissed from service on account of his conviction. We, therefore, while dismissing the appeal, feel that the ends of justice would be met if we direct that the appellant be released on probation under Section 4 of the Probation of Offenders Act, 1958 on conditions to be imposed by the Trial Court. The appeal is disposed of in the above terms.”

16. It is submitted by learned counsel for the appellant that the Coordinate Bench of this Court while extending the benefit of the aforesaid provisions of the Act of 1958 has placed reliance upon the judgment rendered by Apex Court, which has been quoted in Para 14 of the judgment of Coordinate Bench of the Court.

17. Learned A.G.A. does not dispute application of the provisions of Section 4 of the Act of 1958 as in view of the provisions of the said Act of 1958, power can be exercised, while if a person is found guilty of committing an offence not punishable with death or imprisonment for life and with regard to the facts and circumstances of the case, like nature of the case and character of the offender, the appellant can be given benefit of the said provision.

18. In order to appreciate the argument advanced by the learned counsel for the appellant, the provisions of Section 4 of the Act of 1958, is required to be appreciated. The same is quoted hereinbelow:- “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 5 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. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.”

19. From perusal of the aforesaid provisions, it is clear that the power vests with the Court to release a person on a bond of good conduct by extending the benefit of Section 4 of the Act of 1958, if any person is found guilty of having committed an offence not punishable with death or imprisonment for life, but, at the same time, the Court will extend the benefit so 6 provided under Section 4 of the Act of 1958 having due regard to the nature of the offence and the character of the offender.

20. From the perusal of the record, it is clear that the offences, for which the appellant was convicted, do not entail the punishment of death or imprisonment for life. So, the nature of the offences is such, where, this Court can give the benefit of the Act of 1958 to the appellant. The submission made by the learned counsel for the appellant regarding the fact that there is other circumstance which would warrant the application of Section 4 of the Probation of Offenders Act, 1958 to the facts of the case, and he has undergone the trauma of the criminal trial for the last so many years, coupled with the fact that the appellant has no criminal antecedents and even prior and after the aforesaid crime, this is the only offence which has so far been registered against him. She also submits that as per the record, appellant is a case of schizophrenia who is on medication and is on treatment for that.

21. In this view of the fact, this Court is of the opinion that no useful purpose would serve by immediately sending the appellant to jail for serving the sentence awarded by the trial court.

22. In this view of the matter, the appeal is partly allowed. Judgment and order passed by learned trial court is hereby affirmed. The conviction as recorded by the trial court shall remain intact. However, so far as the sentence part is concerned, it is directed that the appellant shall be released on probation for a period of two years on furnishing a personal bond with two reliable sureties each of the like amount to the satisfaction of the 7 concerned trial court. The fine imposed by the trial court shall be deposited by the appellant within a period of one month, if not already deposited, from the date of receipt of this order, with the court concerned. The concerned Magistrate/court shall be at liberty to impose such condition(s) while executing the bond which he feels fit in accordance with the law. It goes without saying that if appellant fails to observe good conduct and behaviour during probation, or is found violating any condition imposed, the court concerned shall be at liberty to cancel the bond of good conduct calling the appellant to serve out the sentence awarded by the learned trial court. The appellant is on bail. He need not to surrender provided he executes the bond of good conduct before the court concerned as directed above, within 21 days from the date of this judgment.

23. Let a copy of this judgment, along with the LCR, be sent forthwith trial court information/compliance. SK (Pankaj Purohit, J.) 09.07.2025 8