State v. Lalji Verma and others), arising out of NCR No

201/2006 arising out of NCR No. 36/2006).

5. Informant/Ram Milan Verma s/o Sukhram Verma, (one of the respondents in Criminal Appeal No. 281 of 2018) orally informed at P.S.- Gauriganj, District-Sultanpur that on 08.04.2006 on account of inimical relation appellants in Criminal Appeal No.1780 of 2018 namely Vijay Kumar s/o Lalaee Singh, Umesh Singh, Yogesh Singh, Dinesh Kumar Singh all sons of Vijay Kumar Singh, hurled abuses and assaulted the persons related to the informant present at the place of occurrence, with 'lathi' and 'danda', and based upon the same NCR No. 36/2006 (Ex. Ka-1) was registered under Sections 323/504/506 IPC, subsequently registered as Case Crime No.201/2006, at P.S.-Gauriganj, District- Sultanpur. Case Crime No.201/2018 was registered during investigation, in compliance of order of competent court of jurisdiction, the evidence was collected by the Investigating Officer (in short 'I.O.') who added Section(s) 325/436/452 IPC. Consideration of Criminal Appeal No.281 of 2018

6. The I.O. investigated the matter relating to NCR No. 35/2006, in compliance of order of competent court of jurisdiction, and after collecting the evidence submitted the Charge-Sheet under Section(s) 323/34 and 504 IPC.

7. To establish the case indicated in NCR No. 35/2006, injured-Umesh 3 CRLA No. 1780 of 2018 Kumar Singh (P.W.-1), injured-Vijay Kumar(P.W.-2), independent witness -Santosh Singh(P.W.-3), Constable Phoolchand (P.W.-4), retired Police Inspector Surendra Bahadur Singh (P.W.-5), Dr. S.P. Singh (P.W.- 6) were examined.

8. The documentary evidence in case arising out of NCR No.35 of 2006 i.e. NCR No. 35/2006(Ex-ka-1), application under Section 155(2) CrPC (Ex-ka-2), General Diary entry of NCR (Ex-ka-3), Site plan of the incident indicated in NCR No. 35/2006 (Ex-ka-4), Charge-Sheet(Ex-ka- 5), Injury report of injured Umesh Pratap (Ex-ka-6), Injury report of injured Vijay Kumar Singh (Ex-ka-7), were proved by the above named witnesses.

9. Opposing the case setup in the NCR No. 36/2006 the accused of NCR No. 35/2006 filed the following documents:-

1. 212-Kha/2 – Charge sheet against Dinesh Kumar Singh, Exhibit Kha-1 and 212ख/3 – Charge- sheet against Vijay Kumar, Umesh and Yogesh, Exhibit-Kha-2.

2. 212ख/5 and 212ख/7 – True copy of the injury report statement of injured Sukhram Verma, Exhibit-Kha-3.

3. 212ख/9 – True copy of the injury report statement of injured Ram Milan Verma, Exhibit-Kha- 4.

4. 212ख/11 – True copy of the injury report statement of injured Dharmendra Kumar, Exhibit- Kha-5.

5. 212ख/13 – True copy of the injury report statement of injured Ratti Devi, Exhibit-Kha-6.

6. 212ख/15 – True copy of the site plan (case crime no. 201/2006), Exhibit-Kha-7.

10. Based upon the material evidence on record in the case arising out of NCR No. 35 of 2006, the charge under Sections 323/34 and 504 IPC were framed and the charges so framed were read over and explained to the accused-respondent, who denied the charge and the story of the prosecution and upon denial, the accused-respondents in Criminal Appeal No.281 of 2018 were put to trial.

11. Thereafter, based upon the evidence produced by the prosecution, the trial Court put questions, as required under Section 313 Cr.P.C., to the accused-respondent, in response, he denied the case of the prosecution.

12. The trial Court, after due consideration of submissions advanced by the counsel for the State as also the accused and the evidence on record, passed the judgment of acquittal dated 06.09.2018, under appeal, whereby 4 CRLA No. 1780 of 2018 acquitted the accused/respondents in Criminal Appeal No. 281 of 2018 namely Ram Ji Verma, Lal Ji Verma and Sukhram for the offence under Sections 323/34 and 504 IPC in which the charges were framed by the trial court.

13. Assailing the judgment under appeal, the learned counsel for the appellants submitted that the learned trial Judge has totally misread the evidence. He submits that the oral evidence of P.W.1 to P.W.6 coupled with the medical evidence and documentary evidence, would show that the prosecution has proved the case beyond reasonable doubt and as such in acquitting the respondents namely Ram Ji Verma, Lal Ji Verma and Sukhram, the trial court erred in law and fact both.

14. Per contra, learned counsel for the respondents in Criminal Appeal No. 281 of 2018 submits that the learned trial Judge by giving elaborate reasoning, has passed the judgment of acquittal dated 06.09.2018, in issue, in Criminal Appeal No. 281 of 2018. He further submitted that, in an appeal arising from acquittal, the scope is limited. Unless the finding is shown to be perverse or impossible, it will not be permissible for the Appellate Court to interfere with the same.

15. It is to be noted that trial court passed the judgment of acquittal dated

06.09.2018 in issue, in Criminal Appeal No. 281 of 2018, after considering the testimony of Independent Witness-Santosh Kumar Singh/P.W.-3. According to whom the accused/respondents in Criminal Appeal No.281 of 2018 assaulted Injured-Umesh and Injured-Vijay Kumar with 'lathi' and 'danda' and also hurled abuses against them, and the place of occurrence/incident is the place (चबूतरा) situated infront of house of accused/respondent in Criminal Appeal No.281 of 2018.

16. Trial court after considering the said statement of Independent Witness-Santosh Kumar Singh/P.W.3, came to the conclusion that accused/respondent in Criminal Appeal No.281 of 2018 namely Lalji Verma, Ram Milan and Sukhram were not aggressor and in defence they assaulted Injured-Umesh and Injured- Vijay.

17. At this stage, this Court feels it appropriate to refer the recent judgment of the Hon'ble Apex Court passed in the case of Rakesh Dutt Sharma Versus State of Uttarakhand in Criminal Appeal No. 1461 of 5 CRLA No. 1780 of 2018 2012; (2025) SCC OnLine SC 892, wherein for accepting the plea of private defence the Hon'ble Apex Court considered the earlier judgments passed in the case of Darshan Singh Versus State of Punjab and another, (2010) 2 SCC 333. The relevant paragraph 7 is extracted hereinunder:- "7. Considering the principle governing the right of private defence, this Court, in Darshan Sing (Supra) was pleased to hold as under:

54. In Vidhya Singh v. State of Madhya Pradesh, (1971)3 SCC 244, the court observed that: "18. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.

55. In Jai Dev v. State of Punjab, AIR 1963 Supreme Court 612 the court held as under: "13......as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence."

56. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.

57. In Buta Singh v. The State of Punjab, (1991)2 SCC 612, the court noted that: "10......a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private- defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and nd 6 CRLA No. 1780 of 2018 conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, noted above, a finding of fact."

58. The following principles emerge on scrutiny of the following judgments: (i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

18. It would also useful to refer the judgment of Hon'ble Apex Court passed in the case of Sadhu Sara Singh Versus State of Uttar Pradesh and Others; (2016) 4 SCC 357, according to which the judgment of acquittal can only be interfered if the appellate court finds that the decision of trial court is based on erroneous views and against the settled position of law. The similar view has been expressed by the Hon'ble Apex Court in the judgment(s) passed in the case of Sujit Biswas Versus State of Assam; 2013(12) SCC page 406 and in the case of Harljan Bhala Teja 7 CRLA No. 1780 of 2018 Versus State of Gujarat; (2016) 12 SCC 665.

19. Considering the view expressed by the Hon'ble Apex Court in the above referred judgment(s) and the testimony of Independent Witness- Santosh Kumar Singh/P.W.3, according to which the place of incident is platform ("चबूतरा") situated infront of the house of accused/respondents in Criminal Appeal No.281 of 2018 namely Ram Milan (the informant of NCR No. 36/2006 subsequently registered as Case Crime No. 201 of 2006 under Sections 323/325/436/452/504/506 IPC) as also that in this incident Smt. Ratti Devi wife of Ram Milan Verma, Sukhram Verma and Dharmendra Kumar sustained injuries, this Court is of the firmed view that trial has not committed any illegality or irregularity in acquitting the accused/respondents in Criminal Appeal No.281 of 2018 namely Lalji Verma, Ram Milan and Sukhram. Accordingly the instant appeal no. 281 of 2018, is dismissed. Consideration of Criminal Appeal No. 1780 of 2018:-

20. The I.O. investigated the matter and after completion of investigation, which includes recording of statement(s), preparing of site plan and collecting the documents, submitted the Charge-Sheet(s) (Ex-ka-4 and Ex-ka-5) against the accused/appellants namely Vijay Kumar s/o Lalaee Singh, Umesh Singh, Yogesh Singh, Dinesh Kumar Singh sons of Vijay Kumar Singh, under Sections 323/325/436/452/504/506 IPC in the case arising out of NCR No. 36 of 2006 subsequently registered as Case Crime No. 201 of 2006. Alongwith the Charge-Sheet following documents were filed:-

1. Original copy of Case Crime No. 36/2006 2. Site plan of Case Crime No. 201/2006 3. Exhibit-Ka-3, G.D. No. 34 time 21:10 hrs

4. Exhibit-Ka-4 and 5 , Charge-Sheet related to Case Crime No.

5. Exhibit-Ka-6, Oral Information in G.D.

6. Exhibit-Ka-7: letter related to injured Sukhram Verma

7. Exhibit-Ka-8: letter related to injured Ram Milan Verma,

8. Exhibit-Ka-9: letter related to injured Mrs. Rati Devi

9. Exhibit-Ka-10: letter related to injured Dharmendra Kumar 8 CRLA No. 1780 of 2018

10. Exhibit-Ka-11: Injury Report of injured-Smt. Rati Devi

11. Exhibit -Ka-12 Injury Report of injured-Dharmendra Kumar

12. Exhibit-Ka-13 Injury Report of injured-Sukhram Verma

13. Exhibit-Ka-14 Injury Report of injured-Ram Milan

14. Exhibit-Ka-16 X-ray report of injured-Smt. Rati Devi

15. Object Exhibit-1 X-ray plate of injured-Smt. Rati Devi

21. After submission of charge sheet before Court of learned Magistrate the Case Crime No. 201 of 2006 was committed to the Court of Session where it was registered as S. T. No. 158 of 2007 (State Versus Vijay Kumar and others) and charges were framed under Sections 323/34, 325/34, 436, 452, 504, 506 IPC against the accused/appellants and the accused/appellants denied and claimed trial.

22. To establish/prove its case the prosecution examined Ram Milan Verma (P.W.1), injured-Smt. Rati Devi (P.W.2), injured-Sukhram Verma (P.W.3), injured-Dharmendra Kumar Verma(P.W.4), who proved the case of the prosecution. Sub Inspector-Santoshi Ram(P.W.5), Constable- Phoolchand (P.W.6), also supported the story of prosecution, Dr. S.P. Singh(P.W.7), Dr. L.S. Yadav (P.W.8), who proved the injury(s) report(s) and X-ray report.

23. The defence/accused-appellants in Criminal Appeal No. 281 of 2018 filed the following documentary evidence alongwith list of documents (Paper No. 243kha):- (i) Copy of charge sheet (Ex-Kha-1), (ii) Copy of the application under Section 155 (2) of the CrPC (Ex- Kha-2), (iii) Copy of statement of witness Surendra Bahadur Singh (Ex-Kha- 3), (iv) Copy of the Injury Report of injured-Vijay Kumar Singh(Ex- Kha-4), (v) Copy of Injury Report of injured-Umesh Pratap(Ex-Kha-5), (vi) Copy of the site plan in NCR No. 35/2006 (Ex-Kha-6). 9 CRLA No. 1780 of 2018

24. The testimony of injured witness is having 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 .

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

26. 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.

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

28. Learned counsel for the appellants submits that the accused-appellants have 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 sentence.

29. 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 invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

30. 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 10 CRLA No. 1780 of 2018 the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act,

31. 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.

32. 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.

33. 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.

34. 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.

35. 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 25 years ago and there is no further criminal antecedent against 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 11 CRLA No. 1780 of 2018 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.

36. Learned A.G.A. as also the learned Counsel for the informant, on the other hand opposed the appeal. It is 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.

37. Learned AGA appearing for the State as also the learned Counsel for the informant do not dispute the fact that accused-appellants is the first time offender and was not previously convicted in any other case. Also submitted 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. Also stated 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.

38. This Court on the prayer of learned Counsel for accused/appellants in Criminal Appeal No. 1780 of 2018, which relates to providing the benefit of the Act of 1958 considered the arguments advanced by the parties and the material available on record including the statements of injured witnesses as also the principles settled in this regard and this Court also considered the following judgments:-

1. Ratan Lal vs State of Punjab, AIR 1965 SC 444,

2. Ved Prakash vs State of Haryana, (1981) 1 SCC 447

3. Subhash Chand vs State of U.P; [2015 Law Suit (All) 1343

4. State of Maharashtra vs Jagmohan Singh Kuldip Singh Anand; (2004) 7 SCC 659

5. Sitaram Paswan and Anr v. State of Bihar, AIR 2005 SC 3534

6. Mohd. Hashim v. State of U.P and Ors., AIR 2017 SC page 6607. Virendra Kumar Vs State of U.P.; 2022(120)ACrC 392 7 . Tarak Nath Keshari vs. State of West Bengal; 2023 SCC OnLine SC 605 12 CRLA No. 1780 of 2018

8. Lakhvir Singhv.The State of Punjab; (2021) 2 SCC 763.

9. State vs. Sanjiv Bhalla (2015) 13 SCC 444

10. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580

11. Union of India and another vs. Ashok Kumar Aggarwal reported in 2013 (16) SCC

12. Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel and others reported in 2006 (8) SCC 2008

13. Ved Prakash v. State of Haryana [(1981) 1 SCC 447 : 1981 SCC (Cri) 182]

14. Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1988 SCC (Cri) 984]

15. Om Prakash v. State of Haryana [(2001) 10 SCC 477 : 2003 SCC (Cri) 799

16. Dalbir Singh v. State of Haryana [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208]

17. Karamjit Singh v. State of Punjab [(2009) 7 SCC 178 : (2009) 3 SCC (Cri) 330

18. Manjappa v. State of Karnataka [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76

19. State of Karnataka vs. Muddappa [(1999) 5 SCC 732

39. That it is noteworthy that the incident took place way back in the year

2006. The accused-appellants have suffered in the matter for the past about 19 years and there is no any criminal antecedent between the parties during these years.

40. Considering the above stated facts, relevant provisions of law and settled proposition on the issue and the statements of witnesses on record including injured witnesses and also the medical evidence and also the period lapsed from the date of incident i.e. about 19 years, I am of the view that the benefit of provision of the Act of 1958 should be provided to the accused / appellants.

41. In the light of the above discussions, as far as it relates with the conviction of the accused/appellants in Criminal Appeal No. 1780 of 2018, is maintained but the sentence is modified. Instead of sending the accused/appellants namely Vijay Kumar s/o Lalaee Singh, Umesh Singh, Yogesh Singh, Dinesh Kumar Singh sons of Vijay Kumar Singh to jail, they are given benefit of Section 4 of The Probation of Offenders Act, 13 CRLA No. 1780 of 2018 1958 and are directed to file two sureties each to the tune of Rs 20,000/- along with personal bonds before District Probation Officer concerned and also an undertaking to the effect that they shall maintain peace and good behaviour during the period of one year from today. The said bonds are to be filed by the appellants within a period of two months from the date of this judgment.

42. In case of breach of any of the above conditions, the appellants shall be taken into custody and shall have to undergo sentence awarded to them.

43. With the above modification, the Criminal Appeal No. 1780 of 2018, is partly allowed.

44. A certified copy of the order be also sent to the court concerned for compliance.

45. Office is directed to communicate this order to the court concerned for necessary compliance.

46. Trial court record, if any, shall also be sent back to the district court concerned.

47. Copy of this order be placed on record of Criminal Appeal No. 281 of 2018, which has been dismissed by this order. (See paragraph-19 of the order). December 3, 2025 Jyoti/- (Saurabh Lavania,J.) JYOTI RAJWANI High Court of Judicature at Allahabad, Lucknow Bench

201/2006 arising out of NCR No. 36/2006).

5. Informant/Ram Milan Verma s/o Sukhram Verma, (one of the respondents in Criminal Appeal No. 281 of 2018) orally informed at P.S.- Gauriganj, District-Sultanpur that on 08.04.2006 on account of inimical relation appellants in Criminal Appeal No.1780 of 2018 namely Vijay Kumar s/o Lalaee Singh, Umesh Singh, Yogesh Singh, Dinesh Kumar Singh all sons of Vijay Kumar Singh, hurled abuses and assaulted the persons related to the informant present at the place of occurrence, with 'lathi' and 'danda', and based upon the same NCR No. 36/2006 (Ex. Ka-1) was registered under Sections 323/504/506 IPC, subsequently registered as Case Crime No.201/2006, at P.S.-Gauriganj, District- Sultanpur. Case Crime No.201/2018 was registered during investigation, in compliance of order of competent court of jurisdiction, the evidence was collected by the Investigating Officer (in short 'I.O.') who added Section(s) 325/436/452 IPC. Consideration of Criminal Appeal No.281 of 2018

6. The I.O. investigated the matter relating to NCR No. 35/2006, in compliance of order of competent court of jurisdiction, and after collecting the evidence submitted the Charge-Sheet under Section(s) 323/34 and 504 IPC.

7. To establish the case indicated in NCR No. 35/2006, injured-Umesh 3 CRLA No. 1780 of 2018 Kumar Singh (P.W.-1), injured-Vijay Kumar(P.W.-2), independent witness -Santosh Singh(P.W.-3), Constable Phoolchand (P.W.-4), retired Police Inspector Surendra Bahadur Singh (P.W.-5), Dr. S.P. Singh (P.W.- 6) were examined.

8. The documentary evidence in case arising out of NCR No.35 of 2006 i.e. NCR No. 35/2006(Ex-ka-1), application under Section 155(2) CrPC (Ex-ka-2), General Diary entry of NCR (Ex-ka-3), Site plan of the incident indicated in NCR No. 35/2006 (Ex-ka-4), Charge-Sheet(Ex-ka- 5), Injury report of injured Umesh Pratap (Ex-ka-6), Injury report of injured Vijay Kumar Singh (Ex-ka-7), were proved by the above named witnesses.

9. Opposing the case setup in the NCR No. 36/2006 the accused of NCR No. 35/2006 filed the following documents:-

1. 212-Kha/2 – Charge sheet against Dinesh Kumar Singh, Exhibit Kha-1 and 212ख/3 – Charge- sheet against Vijay Kumar, Umesh and Yogesh, Exhibit-Kha-2.

2. 212ख/5 and 212ख/7 – True copy of the injury report statement of injured Sukhram Verma, Exhibit-Kha-3.

3. 212ख/9 – True copy of the injury report statement of injured Ram Milan Verma, Exhibit-Kha- 4.

4. 212ख/11 – True copy of the injury report statement of injured Dharmendra Kumar, Exhibit- Kha-5.

5. 212ख/13 – True copy of the injury report statement of injured Ratti Devi, Exhibit-Kha-6.

6. 212ख/15 – True copy of the site plan (case crime no. 201/2006), Exhibit-Kha-7.

10. Based upon the material evidence on record in the case arising out of NCR No. 35 of 2006, the charge under Sections 323/34 and 504 IPC were framed and the charges so framed were read over and explained to the accused-respondent, who denied the charge and the story of the prosecution and upon denial, the accused-respondents in Criminal Appeal No.281 of 2018 were put to trial.

11. Thereafter, based upon the evidence produced by the prosecution, the trial Court put questions, as required under Section 313 Cr.P.C., to the accused-respondent, in response, he denied the case of the prosecution.

12. The trial Court, after due consideration of submissions advanced by the counsel for the State as also the accused and the evidence on record, passed the judgment of acquittal dated 06.09.2018, under appeal, whereby 4 CRLA No. 1780 of 2018 acquitted the accused/respondents in Criminal Appeal No. 281 of 2018 namely Ram Ji Verma, Lal Ji Verma and Sukhram for the offence under Sections 323/34 and 504 IPC in which the charges were framed by the trial court.

13. Assailing the judgment under appeal, the learned counsel for the appellants submitted that the learned trial Judge has totally misread the evidence. He submits that the oral evidence of P.W.1 to P.W.6 coupled with the medical evidence and documentary evidence, would show that the prosecution has proved the case beyond reasonable doubt and as such in acquitting the respondents namely Ram Ji Verma, Lal Ji Verma and Sukhram, the trial court erred in law and fact both.

14. Per contra, learned counsel for the respondents in Criminal Appeal No. 281 of 2018 submits that the learned trial Judge by giving elaborate reasoning, has passed the judgment of acquittal dated 06.09.2018, in issue, in Criminal Appeal No. 281 of 2018. He further submitted that, in an appeal arising from acquittal, the scope is limited. Unless the finding is shown to be perverse or impossible, it will not be permissible for the Appellate Court to interfere with the same.

15. It is to be noted that trial court passed the judgment of acquittal dated

06.09.2018 in issue, in Criminal Appeal No. 281 of 2018, after considering the testimony of Independent Witness-Santosh Kumar Singh/P.W.-3. According to whom the accused/respondents in Criminal Appeal No.281 of 2018 assaulted Injured-Umesh and Injured-Vijay Kumar with 'lathi' and 'danda' and also hurled abuses against them, and the place of occurrence/incident is the place (चबूतरा) situated infront of house of accused/respondent in Criminal Appeal No.281 of 2018.

16. Trial court after considering the said statement of Independent Witness-Santosh Kumar Singh/P.W.3, came to the conclusion that accused/respondent in Criminal Appeal No.281 of 2018 namely Lalji Verma, Ram Milan and Sukhram were not aggressor and in defence they assaulted Injured-Umesh and Injured- Vijay.

17. At this stage, this Court feels it appropriate to refer the recent judgment of the Hon'ble Apex Court passed in the case of Rakesh Dutt Sharma Versus State of Uttarakhand in Criminal Appeal No. 1461 of 5 CRLA No. 1780 of 2018 2012; (2025) SCC OnLine SC 892, wherein for accepting the plea of private defence the Hon'ble Apex Court considered the earlier judgments passed in the case of Darshan Singh Versus State of Punjab and another, (2010) 2 SCC 333. The relevant paragraph 7 is extracted hereinunder:- "7. Considering the principle governing the right of private defence, this Court, in Darshan Sing (Supra) was pleased to hold as under:

54. In Vidhya Singh v. State of Madhya Pradesh, (1971)3 SCC 244, the court observed that: "18. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. Situations have to be judged from the subjective point of view of the accused concerned the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this court, to adopt tests by detached objectivity which would be so natural in a court room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.

55. In Jai Dev v. State of Punjab, AIR 1963 Supreme Court 612 the court held as under: "13......as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence."

56. In order to find out whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.

57. In Buta Singh v. The State of Punjab, (1991)2 SCC 612, the court noted that: "10......a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private- defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and nd 6 CRLA No. 1780 of 2018 conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private defence can legitimately be negatived. The court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, noted above, a finding of fact."

58. The following principles emerge on scrutiny of the following judgments: (i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

18. It would also useful to refer the judgment of Hon'ble Apex Court passed in the case of Sadhu Sara Singh Versus State of Uttar Pradesh and Others; (2016) 4 SCC 357, according to which the judgment of acquittal can only be interfered if the appellate court finds that the decision of trial court is based on erroneous views and against the settled position of law. The similar view has been expressed by the Hon'ble Apex Court in the judgment(s) passed in the case of Sujit Biswas Versus State of Assam; 2013(12) SCC page 406 and in the case of Harljan Bhala Teja 7 CRLA No. 1780 of 2018 Versus State of Gujarat; (2016) 12 SCC 665.

19. Considering the view expressed by the Hon'ble Apex Court in the above referred judgment(s) and the testimony of Independent Witness- Santosh Kumar Singh/P.W.3, according to which the place of incident is platform ("चबूतरा") situated infront of the house of accused/respondents in Criminal Appeal No.281 of 2018 namely Ram Milan (the informant of NCR No. 36/2006 subsequently registered as Case Crime No. 201 of 2006 under Sections 323/325/436/452/504/506 IPC) as also that in this incident Smt. Ratti Devi wife of Ram Milan Verma, Sukhram Verma and Dharmendra Kumar sustained injuries, this Court is of the firmed view that trial has not committed any illegality or irregularity in acquitting the accused/respondents in Criminal Appeal No.281 of 2018 namely Lalji Verma, Ram Milan and Sukhram. Accordingly the instant appeal no. 281 of 2018, is dismissed. Consideration of Criminal Appeal No. 1780 of 2018:-

20. The I.O. investigated the matter and after completion of investigation, which includes recording of statement(s), preparing of site plan and collecting the documents, submitted the Charge-Sheet(s) (Ex-ka-4 and Ex-ka-5) against the accused/appellants namely Vijay Kumar s/o Lalaee Singh, Umesh Singh, Yogesh Singh, Dinesh Kumar Singh sons of Vijay Kumar Singh, under Sections 323/325/436/452/504/506 IPC in the case arising out of NCR No. 36 of 2006 subsequently registered as Case Crime No. 201 of 2006. Alongwith the Charge-Sheet following documents were filed:-

1. Original copy of Case Crime No. 36/2006 2. Site plan of Case Crime No. 201/2006 3. Exhibit-Ka-3, G.D. No. 34 time 21:10 hrs

4. Exhibit-Ka-4 and 5 , Charge-Sheet related to Case Crime No.

5. Exhibit-Ka-6, Oral Information in G.D.

6. Exhibit-Ka-7: letter related to injured Sukhram Verma

7. Exhibit-Ka-8: letter related to injured Ram Milan Verma,

8. Exhibit-Ka-9: letter related to injured Mrs. Rati Devi

9. Exhibit-Ka-10: letter related to injured Dharmendra Kumar 8 CRLA No. 1780 of 2018

10. Exhibit-Ka-11: Injury Report of injured-Smt. Rati Devi

11. Exhibit -Ka-12 Injury Report of injured-Dharmendra Kumar

12. Exhibit-Ka-13 Injury Report of injured-Sukhram Verma

13. Exhibit-Ka-14 Injury Report of injured-Ram Milan

14. Exhibit-Ka-16 X-ray report of injured-Smt. Rati Devi

15. Object Exhibit-1 X-ray plate of injured-Smt. Rati Devi

21. After submission of charge sheet before Court of learned Magistrate the Case Crime No. 201 of 2006 was committed to the Court of Session where it was registered as S. T. No. 158 of 2007 (State Versus Vijay Kumar and others) and charges were framed under Sections 323/34, 325/34, 436, 452, 504, 506 IPC against the accused/appellants and the accused/appellants denied and claimed trial.

22. To establish/prove its case the prosecution examined Ram Milan Verma (P.W.1), injured-Smt. Rati Devi (P.W.2), injured-Sukhram Verma (P.W.3), injured-Dharmendra Kumar Verma(P.W.4), who proved the case of the prosecution. Sub Inspector-Santoshi Ram(P.W.5), Constable- Phoolchand (P.W.6), also supported the story of prosecution, Dr. S.P. Singh(P.W.7), Dr. L.S. Yadav (P.W.8), who proved the injury(s) report(s) and X-ray report.

23. The defence/accused-appellants in Criminal Appeal No. 281 of 2018 filed the following documentary evidence alongwith list of documents (Paper No. 243kha):- (i) Copy of charge sheet (Ex-Kha-1), (ii) Copy of the application under Section 155 (2) of the CrPC (Ex- Kha-2), (iii) Copy of statement of witness Surendra Bahadur Singh (Ex-Kha- 3), (iv) Copy of the Injury Report of injured-Vijay Kumar Singh(Ex- Kha-4), (v) Copy of Injury Report of injured-Umesh Pratap(Ex-Kha-5), (vi) Copy of the site plan in NCR No. 35/2006 (Ex-Kha-6). 9 CRLA No. 1780 of 2018

24. The testimony of injured witness is having 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 .

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

26. 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.

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

28. Learned counsel for the appellants submits that the accused-appellants have 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 sentence.

29. 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 invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

30. 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 10 CRLA No. 1780 of 2018 the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act,

31. 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.

32. 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.

33. 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.

34. 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.

35. 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 25 years ago and there is no further criminal antecedent against 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 11 CRLA No. 1780 of 2018 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.

36. Learned A.G.A. as also the learned Counsel for the informant, on the other hand opposed the appeal. It is 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.

37. Learned AGA appearing for the State as also the learned Counsel for the informant do not dispute the fact that accused-appellants is the first time offender and was not previously convicted in any other case. Also submitted 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. Also stated 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.

38. This Court on the prayer of learned Counsel for accused/appellants in Criminal Appeal No. 1780 of 2018, which relates to providing the benefit of the Act of 1958 considered the arguments advanced by the parties and the material available on record including the statements of injured witnesses as also the principles settled in this regard and this Court also considered the following judgments:-

1. Ratan Lal vs State of Punjab, AIR 1965 SC 444,

2. Ved Prakash vs State of Haryana, (1981) 1 SCC 447

3. Subhash Chand vs State of U.P; [2015 Law Suit (All) 1343

4. State of Maharashtra vs Jagmohan Singh Kuldip Singh Anand; (2004) 7 SCC 659

5. Sitaram Paswan and Anr v. State of Bihar, AIR 2005 SC 3534

6. Mohd. Hashim v. State of U.P and Ors., AIR 2017 SC page 6607. Virendra Kumar Vs State of U.P.; 2022(120)ACrC 392 7 . Tarak Nath Keshari vs. State of West Bengal; 2023 SCC OnLine SC 605 12 CRLA No. 1780 of 2018

8. Lakhvir Singhv.The State of Punjab; (2021) 2 SCC 763.

9. State vs. Sanjiv Bhalla (2015) 13 SCC 444

10. Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580

11. Union of India and another vs. Ashok Kumar Aggarwal reported in 2013 (16) SCC

12. Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel and others reported in 2006 (8) SCC 2008

13. Ved Prakash v. State of Haryana [(1981) 1 SCC 447 : 1981 SCC (Cri) 182]

14. Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551 : 1988 SCC (Cri) 984]

15. Om Prakash v. State of Haryana [(2001) 10 SCC 477 : 2003 SCC (Cri) 799

16. Dalbir Singh v. State of Haryana [(2000) 5 SCC 82 : 2004 SCC (Cri) 1208]

17. Karamjit Singh v. State of Punjab [(2009) 7 SCC 178 : (2009) 3 SCC (Cri) 330

18. Manjappa v. State of Karnataka [(2007) 6 SCC 231 : (2007) 3 SCC (Cri) 76

19. State of Karnataka vs. Muddappa [(1999) 5 SCC 732

39. That it is noteworthy that the incident took place way back in the year

2006. The accused-appellants have suffered in the matter for the past about 19 years and there is no any criminal antecedent between the parties during these years.

40. Considering the above stated facts, relevant provisions of law and settled proposition on the issue and the statements of witnesses on record including injured witnesses and also the medical evidence and also the period lapsed from the date of incident i.e. about 19 years, I am of the view that the benefit of provision of the Act of 1958 should be provided to the accused / appellants.

41. In the light of the above discussions, as far as it relates with the conviction of the accused/appellants in Criminal Appeal No. 1780 of 2018, is maintained but the sentence is modified. Instead of sending the accused/appellants namely Vijay Kumar s/o Lalaee Singh, Umesh Singh, Yogesh Singh, Dinesh Kumar Singh sons of Vijay Kumar Singh to jail, they are given benefit of Section 4 of The Probation of Offenders Act, 13 CRLA No. 1780 of 2018 1958 and are directed to file two sureties each to the tune of Rs 20,000/- along with personal bonds before District Probation Officer concerned and also an undertaking to the effect that they shall maintain peace and good behaviour during the period of one year from today. The said bonds are to be filed by the appellants within a period of two months from the date of this judgment.

42. In case of breach of any of the above conditions, the appellants shall be taken into custody and shall have to undergo sentence awarded to them.

43. With the above modification, the Criminal Appeal No. 1780 of 2018, is partly allowed.

44. A certified copy of the order be also sent to the court concerned for compliance.

45. Office is directed to communicate this order to the court concerned for necessary compliance.

46. Trial court record, if any, shall also be sent back to the district court concerned.

47. Copy of this order be placed on record of Criminal Appeal No. 281 of 2018, which has been dismissed by this order. (See paragraph-19 of the order). December 3, 2025 Jyoti/- (Saurabh Lavania,J.) JYOTI RAJWANI High Court of Judicature at Allahabad, Lucknow Bench