Shrawan Kumar and Another v. State of U.P on 14 Nov 2025

Judgment

1. List of cases has been revised and the case is being taken up in the revised call for hearing.

2. Heard Shri Kaushal Kishore Tewari, learned counsel for the appellants and Shri Sushil Kumar Pandey, learned A.G.A for the State.

3. The present appeal under Section 374 (2) of the Criminal Procedure Code has been preferred against the judgment and order dated

05.12.2003 passed by Additional Session Judge (F.T.C.-4) Kheri in S.T.

No. 297/1995 arising out of Crime No. 266/1992, whereby the appellants were convicted and sentenced under Section 308 I.P.C. for three years rigorous imprisonment with fine of Rs. 2500/-. 2 CRLA No. - 124 of 2004

4. Brief facts of the case are that on 15.10.1992 at about 8.00 a.m. when informant’s brother Basantilal and nephew Chandra Kumar were returning home from the field, on the way accused appellants along with other co-accused persons met them. The appellant accused persons were having lathi in their hands. On the exhortation of appellant-Ravi Kant, co-accused person Maidailal inflicted blows on the head of the Basantilal and other co-accused persons inflicted blows on Chandra Kumar by lathies. After sustaining the injuries Basantilal and Chandra Kumar fell down and became unconscious.

5. In the course of investigation, Investigating Officer recorded statement of witnesses, prepared the site plan and after collecting sufficient evidence against the appellant and other co-accused persons filed the charge-sheet under Sections 307, 323 and 504 I.P.C. before the Court of IIIrd, Additional Chief Judicial Magistrate, Kheri, wherein after furnishing the copies of relevant documents to the accused persons, finding the case exclusively trible by the Session, committed to the court of session on 05.08.1995..

6. From the court of Session Judge, the case was transferred in the Court of Additional Session Judge/F.T.C. (4), Lakhimpur Kheri, wherein against the accused persons charges under Sections 307/34 I.P.C. were framed and also explained to accused persons. The accused-appellants denied the charges levelled against them and claimed to be tried.

7. In order to prove its case, prosecution examined five witnesses namely PW-1 Jagat Kishore (complainant), P.W.-2 Chandra Kumar (injured), PW-3 Dr A.B. Patni, PW-4 S.I. Hori Lal (Retired), PW-5 Constable Om Prakash Awasthi, PW-6 S.I. Satyaprakash, PW-7 Dr. S.K. Tiwari.

8. After completing the evidence by the prosecution, statement of accused/ appellants under Section 313 Cr.P.C. were recorded by the trial court explaining the entire evidence and attending circumstances, from which the appellants denied the prosecution story and evidence against 3 CRLA No. - 124 of 2004 them. They stated that due to village rivalry they have falsely been implicated and witnesses have given the evidence in the interested manner.

9. At the stage of defence, two witnesses were examined on behalf of the accused-appellants as DW-1 Om Prakash and DW-2 Kanaihya Lal.

10. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence oral as well as documentary, hold the accused / appellants guilty and convicted the appellants-Shrawan Kumar and Ravi Kant under sections 308 I.P.C. for three years rigorous imprisonment with default stipulation acquitted the appellants-Madialal and Srikant from the charges levelled against them.

11. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellants- Ravi Kant and Shrawan Kumar have preferred the instant appeal before this Court.

12. During the course of proceedings one of the appellant No.1- Shrawan Kumar has died thereby the appeal against him has been abated vide order dated 21.09.2022, thus the learned counsel for the appellant has pressed this appeal only on behalf of the appellant No. 2- Ravi Kant.

13. Learned counsel for the appellant submitted that although he has preferred the appeal against the judgment of conviction and order of punishment, but at this stage, he only wants to press the appeal in respect of sentence only and he does not want to press the appeal on merit.

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) (herein after referred as the Act of 1958) 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.; 4 CRLA No. - 124 of 2004 (2017) 2 SCC 198. Thus, learned counsel for the appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

15. Learned counsel for the appellant submitted that the incident took place 33 years ago and there is no other criminal antecedent against the appellant and at present the age of the appellant No.2-Ravi Kant is about 75 years. The delay in trial deprives the right of the appellant of speedy trial and he may be given benefit of first offender and appellant may be extended the benefit of Act of 1958. He further submitted that appellant is the first time offender and he 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-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 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-appellant on certain stipulations as specified in Section 4 of the Act of 1958.

18. Before dealing with the contention of learned counsel for the appellant, it is useful to quote Sections 3 and 4 of the Probation of Offenders Act, 1958: “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. 5 CRLA No. - 124 of 2004 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."

19. 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.

20. 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.

21. 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 6 CRLA No. - 124 of 2004 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.”

22. Further the Hon'ble Supreme Court in the case of Ved Prakash vs