High Court · 2025 on 31 Jul 2025

Judgment

1. Heard Shri Narendra Gupta, learned counsel for the appellant, Shri Ajay Kumar Srivastava, learned A.G.A. for the State and perused the record.

2. The instant Criminal Appeal under Section 374(2) Cr.P.C. has been filed by the appellant, namely, Rajesh s/o Muchkund alias Bhagwan Deen Pandit, r/o Village- Hayatganj, P.S.- Atrauli, District- Hardoi challenging the judgment and order 18.04.2009 passed by the learned Special Judge, SC/ST Act, Hardoi in S.T. No.947 of 2005, arising out of Crime No.39 of 2005, P.S.- Atrauli, D/istrict- Hardoi, convicting and sentencing the appellant to undergo one year rigorous imprisonment under Section 323 I.P.C. with a fine of Rs.200/- and in default of payment of fine to further undergo one month simple imprisonment; to further undergo three years rigorous imprisonment under Section 325 I.P.C. with a fine of Rs.600/- and in default of payment of fine to further undergo simple imprisonment of three months; to further undergo one year rigorous imprisonment under Section 504 I.P.C. with a fine of Rs.200/- and in default of payment of fine to further undergo simple imprisonment of one month; to further undergo one year rigorous imprisonment under Section 506 I.P.C. with a fine of Page No.2 of 23 Rs.200/- and in default of payment of fine to further undergo simple imprisonment of one month. All the sentences were ordered to run concurrently.

3. The case of the prosecution, in nutshell, is that on 28.02.2005 a typed report was given by the informant to the Superintendent of Police, Hardoi. According to the same, in brief, on

26.02.2005 the informant- Gulla s/o Allan Pasi, r/o Village- Himatganj, P.S.- Atrauli, District- Hardoi was milking his buffaloes outside his house and his son namely Sujeet, aged about 8 years, was standing there holding the buffalo calf and at the same time the accused came in front of the door of informant with his buffalo and his buffalo tried to charge on the informant’s buffalo and thereafter the son of informant said to the accused that control his buffalo else it would strike our buffalo and the informant would be hurt and in response the accused/Rajesh hurled abuses and made casteist remarks and in the meantime the cousin of the accused came on the spot armed with a .315 bore gun and the accused-appellant assaulted on the head of the informant with danda due to which the informant sustained serious injury on his head. The accused also assaulted Janaka Devi w/o Ramswaroop who came to save the informant. On hearing the outcry of the informant, Suneel

and Mannu, residents of the village, came and challenged the accused and thereafter the accused fled away from the spot by threatening the informant. The informant was medically examined at Primary Health Centre, Bharawan, Hardoi.

4. On the basis of written report, an FIR was lodged on

01.03.2005 bearing Case Crime No.39 of 2005, under Sections 323, 504, 506 I.P.C. and Section 3(1)(x) of SC/ST Act against the appellant and co-accused Rakesh.

5. The Investigating Officer, after completing the investigation, submitted the charge sheet only against the appellant. Page No.3 of 23

6. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Session where it was registered as S.T. No.947 of 2005 and charges were framed against the appellant, which he denied and claimed trial.

7. To establish/prove the case, the prosecution examined injured/informant-Gulla (P.W.1), injured-Janki Devi (P.W.2), Constable – Ramsaran Mishra (P.W.3), who proved the FIR, chik-FIR (Ex.Ka-2), witness/Sujeet Kumar (P.W.4), witness/Bhannu (P.W.5), C.O. Shambhu Singh (P.W.6), Dr. R.K. Dohre (P.W.7), who proved the medical report of informant (Ex.Ka-6), X-ray report of informant/Gulla (Ex.Ka-8), medical report of injured/Janki Devi (Ex.Ka-7) and Dharmendra Kumar Kannaujia/X-ray Technician (P.W.7).

8. That after closing of the evidence, statements of accused/ appellants under Section 313 Cr.P.C. was recorded by the trial court, after explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story and the entire prosecution story was said to be wrong and concocted.

9. Thereafter, the learned trial court, after considering the material brought on record and statement of injured witnesses namely Gulla (P.W.1) and Janki Devi (P.W.2) as also the injuries sustained by them as indicated in injury reports, proved by Dr. R.K. Dohre (P.W.7) passed the judgment of conviction and awarded sentence as indicated above.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused/appellant has preferred the present appeal.

11. Learned counsel for the appellants submits that the accused- appellant have not been convicted previously for any offence Page No.4 of 23 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 submission in the appeal only with respect to the order of sentence.

12. Learned counsel for accused-appellant submits 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 acquitted the appellant for the offence mentioned above and invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958') and in not doing so, the trial court erred in law and fact both.

13. 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.

14. Learned counsel for the accused-appellant submits 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.

15. 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.

16. The accused-appellant 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 Page No.5 of 23 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.

17. 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 it is upon the discretion of the Court to grant benefits in either of the Acts.

18. 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 20 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 he 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.

19. 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.

20. 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 Page No.6 of 23 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.

21. 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.

22. 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.

23. 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 Page No.7 of 23 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."

24. 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."

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