High Court · 2025 on 18 Jul 2025

Judgment

1. Heard Sri Rajat Pratap Singh, learned counsel for the appellants and Sri Vinay Kumar Shahi, learned A.G.A. for the State of U.P. as well as perused the record.

2. The instant Criminal Appeal under Section 374 (2), Cr.P.C. was instituted by the accused-appellants namely Shah Alam s/o Imamuddin, Furkan s/o Imamuddin and Mohd. Alam s/o Shah Alam challenging the judgment and order 03.07.2004 passed by the Additional Sessions Judge, Barabanki in S.T. No. 60/2001 arising out of Case Crime No. 166/1999, Police Station- Masauli, District- Barabanki convicting and sentencing the appellants under Section 307/34 I.P.C. to undergo seven years' rigorous imprisonment alongwith fine of Rs. 3000/- and in default of payment of fine, further to undergo three months' simple imprisonment each.

3. The case of the prosecution, as appears from the record, in nutshell, is to the effect that on 10/11.10.1999 at about 1'o clock in the night, accused namely Shah Alam, Furkan, Mohd. Alam and one other climbed onto the roof of complainant/Mohd. Ameen and on hearing the sound, Mohd. Sayeed s/o complainant/Mohd. Ameen woke up and on being opposed, the accused caught the son of complainant and scuffle/altercation took place between them and accused caused firearm injury to Mohd. Sayeed s/o complainant/Mohd. Ameen and also caused injuries with knife to Mohd. Sayeed, Mohd. Ameen and Mohd. Naim. Upon hue and cry, nearby villagers namely Mohd. Jaleel, Mohd. Yunus and others rushed to the spot and saved the complainant and his sons. While running away, the accused 2 threw hand grenades, due to which, they could not be caught. In the incident, complainant/Mohd. Ameen and Mohd. Sayeed & Mohd. Naim both sons of complainant/Mohd. Ameen sustained injuries.

4. The report of the incident was lodged by the complainant/Mohd. Ameen on 11.10.1999 at about 3.15 hours at Police Station- Masauli, District- Barabanki, which was registered as Case Crime No. 166/1999.

5. The Investigating Officer (IO) upon completion of investigation submitted the charge sheet (Ext.Ka.-5) against the accused namely Shah Alam, Furkan, Mohd. Alam under Section 307 IPC.

The trial court framed the charge against the accused namely Shah Alam, Furkan, Mohd. Alam under Section 307/34 I.P.C. The accused- appellants denied the said charge and claimed trial.

7. In order to substantiate/prove/establish its case, the prosecution examined as many as six witnesses namely complainant/Mohd. Ameen (PW-1), Injured-Mohd. Sayeed (PW-2), Dr. P.C. Dubey (PW-3), Arjun Prasad, Constable (PW-4), Dr. A.C. Dwivedi (PW-5) and Kayam Singh Yadav, S.I. (PW-6). The injured witnesses supported the case/story of the prosecution.

8. Injured-Mohd. Ameen (complainant) sustained following injuries:- "1. Incised wound 1.5 cm X .5 cm on the anterior aspect of Right arm 10 cm below the top of right shoulder.

2. Incised wound 1.5 cm X .5 cm on the anterior aspect of right arm 2 cm medial to injury no. 1."

9. Injured-Mohd. Sayeed sustained following injuries:- "1. Lacerated wound 3 cm X 3 cm (Circular) on the inner aspect of right arm 5 cm above the elbow joint, Margins of wound are black and inverted. Muscles protruding through wound.

2. Lacerated wound 3 cm X 2.5 cm on the posterior aspect of right arm 4.5 cm above the tip of ulna. Margins are everted and muscles are coming out of the wound."

10. Injured-Mohd. Naim sustained following injuries:- "1. Incised wound 1 cm X 1 cm on left side of chest 16 cm below the top of left shoulder.

2. Abrasion 1.5 cm X 1 cm on the inner aspect of left arm. 3

3. Pinnetrating wound 4 mm X 3 mm on left mastoid region of scalp with black irregular margins."

11. The injury reports i.e. Ext.Ka.-6 & Ext.Ka.-9 of injured-Mohd. Naim, Ext.Ka.-7 of injured-Mohd. Sayeed and Ext.Ka.-8 & Ext.Ka.-11 of injured- Mohd. Ameen (complainant) were proved by the Dr. P.C. Dubey (PW-3) and Dr. A.C. Dwivedi (PW-5).

12. It is to be noted that the evidence/testimony of the injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly as observed by the Hon'ble Apex Court in the case(s) of State of M.P. vs. Mansingh, (2003) 10 SCC 414; Abdul Sayeed vs. State of M.P., (2010) 10 SCC 259; State of U.P. vs. Naresh, (2011) 4 SCC 324; Laxman Singh vs. State of Bihar (Now Jharkhand) (2021) 9 SCC 191 and Balu Sudam Khalde and another vs. State of Maharashtra, 2023 SCC OnLine SC 355.

13. 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.

14. 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 and convicted them as above.

15. In the aforesaid background of the case, the present appeal has been filed before this Court challenging the judgment of conviction dated

03.07.2004.

16. Impeaching the judgment, under appeal, dated 03.07.2004, learned counsel for the appellants submitted that the judgment of conviction passed by the trial court is liable to be interfered with by this Court being unsustainable in the eye of law so far as conviction and sentence for the offence under Section 307 IPC is concerned. 4

17. Further submission is that if the case of prosecution is taken on its face value even then the offence, if any, would fall under Section 325 IPC or 324 IPC.

18. In continuation, it is submitted that as per the case of prosecution on 10/11.10.1999, an altercation took place between the parties and there was no premeditation of mind or intention to cause such bodily injury, which could cause death so as to attract the offence under Section 307 IPC.

19. He also stated that the sentence awarded to the appellants is not just and proper, as the prosecution failed to prove essential ingredients to attract offence under Section 307 Cr.P.C.

20. He further stated that if the story of prosecution is taken as true even then the sentence of 7 years awarded under Section 307 IPC is not in consonance with the principles settled by the Hon'ble Apex Court in regard to awarding punishment.

21. Learned counsel for the appellants further stated that the accused- appellants have not been convicted previously for any offence and they are 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 307 IPC.

22. Learned counsel for accused-appellants further stated that in view of the aforesaid facts and circumstances, including the fact that the accused- appellants have not been convicted previously for any offence, the trial court ought to have invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

23. 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- appellants. 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. 5

24. Learned counsel for the accused-appellants further stated that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

25. 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.

26. The accused-appellants has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act, 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.

27. Learned counsel for the appellants 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 it is upon the discretion of the Court to grant benefits in either of the Acts.

28. 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 26 years ago and there is no further criminal antecedent of the appellants. The delay in trial deprives the right of the appellants of speedy trial and they 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 6 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.

29. 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-appellants have been rightly convicted.

30. Learned AGA appearing for the State does not dispute the fact that accused-appellants are the first time offender and were 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-appellants 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.

31. 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.

32. 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 appellants 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.

33. 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 7 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."

34. 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

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