High Court · 2025 on 15 Jul 2025

Judgment

1. Heard Shri Hemant Kumar Mishra, 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 appellants, namely, Om Shanker, Daya Shanker, Ram Pal, Girdhari and Ram Chandra against the judgment and order dated 23.07.2008 passed by the learned Additional Session Judge, Court No.5, District- Unnao in S.T. No.395 of 2005, arising out of Case Crime No.226 of 2005, P.S. Auras, District- Unnao, convicting and sentencing the appellants under Section 304 Part-II I.P.C. to undergo five years rigorous imprisonment each with a fine of Rs.2000/- each; to undergo six months under Section 323 I.P.C.; the appellants namely Om Shankar, Ram Pal, Girdhari and Ram Chandra were further convicted and sentenced to one year rigorous imprisonment under Section 147 I.P.C. whereas appellant no.2- Daya Shankar was convicted and sentenced to one year rigorous imprisonment under Section 148 I.P.C.; the appellants Om Shankar and Daya Shankar were further convicted and sentenced to one year rigorous imprisonment under Section 354 I.P.C. and further they were also convicted and sentenced to two years rigorous imprisonment with a fine of Rs.1000/- under Page No.2 of 23 Section 452 I.P.C. In default of payment of fine to further undergo rigorous imprisonment of one year to each appellants whereas in default of payment of fine with regard to Sectoin 452 I.P.C., appellants Om Shankar and Daya Shankar were directed to further undergo rigorous imprisonment for six months. All the sentences were ordered to run concurrently.

Brief facts of the case are to the effect that informant Changa s/o Raggha is resident of Village Jamalnagar, Police Station - Auras, District Unnao. On 26.07.2005 at about 9:00 A.M. the accused- Om Shankar, Daya Shankar, Ram Pal, Ram Chandra and Girdhari armed with lathi and kanta, due to old enmity, entered the house of the informant in board daylight and forcibly caught hold of his niece Vishunpati with bad intention and tried to take off her clothes. When Vishunpati screamed then these people threw her on the ground. On hearing the noise, the maternal uncle Subedar reached his door. By then the accused were running out of the door leaving Vishunpati. Maternal uncle Subedar surrounded these people. In the meantime, the accused started assaulting Subedar with lathis and kanta and made him fall on the ground. Seeing Subedar fallen on the ground, Vishunpati started lifting him then the accused persons assaulted Vishunpati with lathis and kanta. By the time other family members, i.e. father, uncle and brother reached at the spot and also family members of Subedar namely Chheda, Munni Devi and Shivdulari came there and all these people were got injured by the accused persons with lathis and kanta. Subedar became unconscious. When the informant was taking Subedar to Police Station on a bullock cart, the accused persons did not let the informant and others to reach the Police Station and therefore the informant and others along with injured- Subedar had to hide themselves and therefore they managed to reach the Police Officer who sent all of them to police station and from the police station they were sent to Page No.3 of 23 District Hospital, Unnao for medical examination. Injured Subedar was admitted to the hospital. In the night about 3:00 A.M. Subedar was referred to Lucknow. Leaving Subedar unconscious the informant gave a report Ex.A-1 to the Superintendent of Police, Unnao. In the said report the informant complained that earlier also the accused have committed such type of incident and their uncle is Pradhan due to which no action was taken against the accused. In the report it was alleged that the accused threatened the informant and others to life and property and ask to kill them.

4. On the basis of the report, chik FIR No.365 of 2005 (Ex.Ka-12) was lodged on 30.07.2005 at Police Station– Kotwali, Unnao, under Sections 147, 148, 308, 324, 323, 354, 452, 506 I.P.C.

5. The Investigating Officer, after completing the investigation, submitted the charge sheet (Ex.Kha-6) against the appellants under the aforesaid sections.

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.395 of 2005 and charges were framed against the appellants, which they denied and claimed trial.

7. To establish/prove the case, the prosecution examined as many as eight witnesses, namely, injured-informant/Changa (P.W.1), injured-witness/Vishunpati (P.W.2), Constable Shri Ram (P.W.3), Dr. A.K. Agarwal (P.W.4), who proved the injury report(s) (Ex.Ka-2 to Ex.Ka-6), S.I. Munnalal Sharma (P.W.5), Dr. Adeel Ahmad (P.W.6), who proved the post-mortem report of deceased Subedar, witness Daya Shankar Mishra (P.W.7) and Constable Rambeer Singh (P.W.8).

8. That after closing of the evidence, statements of accused/ appellants under Section 313 Cr.P.C. was recorded by the trial Page No.4 of 23 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.

9. Thereafter, the learned trial court after hearing the 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.

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

11. Learned counsel for the appellants submits 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 submission in the appeal only with respect to the order of sentence.

12. Learned counsel for accused-appellants 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 appellants 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-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. Page No.5 of 23

14. Learned counsel for the accused-appellants 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-appellants have 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.

17. 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.

18. 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 20 years ago and there is no further criminal antecedent of the appellants. The delay in trial Page No.6 of 23 deprives the right of the appellants of speedy trial and they may be given benefit of first offender and they may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellants are first time offender and are 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.

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-appellants have been rightly convicted.

20. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellants are 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-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.

21. 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.

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 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.

23. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: Page No.7 of 23 "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 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:- Page No.8 of 23 "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