High Court · 2025 on 01 Aug 2025

Judgment

1. Heard Sri Shiv Kumar, learned Counsel for the appellant and learned A.G.A. for the State of U.P. and perused the record.

2. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been filed by the appellant namely Jagdish s/o Sukh Lal Yadav, challenging the judgment and order dated 28.03.2009 passed by Additional Sessions Judge, F.T.C.-6, SC/ST Act, District- Lucknow, in Session Trial No.476 of 2003, arising out of Crime No. 326 of 2001, under Sections 323/34, 504 IPC and Section 3(1)(x) SC/ST Act 1989, Police Station-Mohan Lal Ganj, District-Lucknow, convicting and sentencing the appellant under Section 323/34 I.P.C. to undergo one year rigorous imprisonment with fine of Rs. 700/- and under Section 504 IPC two years rigorous imprisonment with fine of Rs. 1300/- and under Section Section 3(1)(x) SC/ST Act 1989 three years rigorous imprisonment alongwith fine of Rs. 2000/-, with default stipulation.

3. The prosecution story in nutshell is to the effect that on

08.12.2001 the informant namely Molhe s/o Babu Lal Pasi was sitting infront of his house at about 6 PM and accused Jagdish, Sanjay and Chanda wife of Jagdish, with premeditation of mind appeared and hurled abuses and also assaulted the informant and in the incident the informant sustained injuries including the injuries on scalp/head and on hearing out cry of the informant, his wife Meera and daughter aged about 10 years 2 Arti, as also the residents of vicinity/same village namely Raj Rani, Smt. Banna, Sanjeevan Lal and others rushed on the spot and therefore, the accused-appellants fled away from the place of crime. The accused appellants were having inimical relations with the informant on account of election dispute related to the post of village Pradhan.

Based upon the written report the FIR was registered as FIR No. 169, Case Crime No. 326/2001, under Sections 323/504 IPC and 3(1)(x) SC/ST Act, at about 21:35 hours at Police Station-Mohan Lal Ganj, District-Lucknow.

5. The Investigating Officer upon completion of investigation which includes preparation of site plan (Exhibit Ka-1) and deducing in writing the statement(s) of witnesses of the prosecution as also the medico legal/injury report (Exhibit Ka- 6), filed the charge-sheet (Exhibit Ka-3), before the concerned Magistrate, who took cognizance and thereafter committed the case to the court of Sessions where the case was registered as ST No. 476 of 2003 wherein the trial court framed the charges against the accused namely Jagdish, Sanjay and Smt. Chanda on 28.09.2004 under Section 323/34, 504 IPC and 3(x) SC/ST Act, which they denied and claimed trial.

6. In order to substantiate its case, prosecution examined six witnesses namely Molhe/informant, an injured witness (PW-1), Smt. Meera (PW-2), Sanjiwan Lal (PW-3), Banna Devi (P.W.- 4), retired Deputy Superintendent of Police-Om Prakash Mishra (PW-5), Dr. Aditya Prakash Arya (PW-6).

7. It would be apt to indicate that during pendency of the case before the trial court, accused Smt Chanda wife of Jagdish, expired and for this reason on 05.06.2008, the case against Smt. Chandra, was abated and trial court proceeded against the accused appellant namely Jagdish s/o Sukh Lal Yadav and Sanjay s/o Jagdish. 3

8. It would also be relevant to indicate that accused Sanjay s/o Jagdish Yadav, has been acquitted by the trial court and therefore, the instant appeal has been filed by Jagdish s/o Sukh Lal Yadav.

9. Reverting to the facts of the case, the independent witnesses namely Sanjeevan Lal (P.W.3) and Banna Devi (P.W.4) were declared hostile by the trial court and therefore, an opportunity was provided to cross examine, these witnesses. However, nothing could be elicited in cross examination.

10. The injured witness/informant Molhe (P.W.1) has supported the version as narrated in the FIR before the trial court.

11. The witness Meera wife of Molhe (P.W.2) has also supported the version as narrated in the FIR before the trial court.

12. Formal witness retired Deputy Superintendent of Police-Om Prakash Mishra (PW-5), proved the other documents.

13. Dr. Aditya Prakash Arya (PW-6) proved the medico legal report (Exhibit-Ka-6).

14. That after closing of the evidence, statements of accused/ appellants under section 313 Cr.P.C. were recorded by the trial court, after 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.

15. 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-appellant guilty and convicted them as above.

16. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has preferred the present appeal. 4

17. Learned counsel for the appellant submits that the accused- appellant has not been convicted previously for any offence and he is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining his submission in the appeal only with respect to the order of conviction and sentence for the offence under Section 3(1)(x) ST/ST Act as the same is not made out.

18. Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellant has not been convicted previously for any offence as also the offence under Section 3(1)(x) ST/ST Act is not made out, the trial court ought to have acquitted the accused-appellant for the offence under Section 3(1)(x) ST/ST Act and invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958'), which may be done by this Court.

19. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellant. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

20. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958.

21. The accused-appellant has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 5 1958 and the learned Trial Court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act, 1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the learned Trial Court should have recorded reasons for the same.

22. 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 appellant submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

23. Learned counsel for the appellant 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 of the appellant. The delay in trial deprives the right of the appellant of speedy trial and they may be given benefit of first offender and appellant may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellant is first time offender and is 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-appellant.

24. 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 court below and keeping in view the evidence on record, accused-appellant has been rightly convicted. 6

25. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant is the first time offender and was not previously convicted in any other case. He also submits that in view of the expressed provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-appellant and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case.

26. Learned A.G.A. further states that the benefit of Section 4 of the Act of 1958 could be extended to the accused-appellant on certain stipulations as specified in Section 4 of the Act of 1958.

27. 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 in this regard.

28. 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. 7 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."

29. 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." 8

30. Further, the Hon'ble Supreme Court in the case of Ved Prakash