High Court · 2025 on 23 Jul 2025

Judgment

1. Heard Shri Yogesh Yadav, learned counsel for the appellant No.2, Shri Sheel Nidhi Shukla with Ms Priya Mishra, learned counsel for the appellant No.3, Shri Ajay Kumar Srivastava, learned A.G.A. for the State and perused the record. It is to be noted that during pendency of the appeal, appellant No.1- 2. Ram Sanehi S/o Shri Jhoori has died and taking note of the report of the Chief Judicial Magistrate, Raebareli dated 03.01.2025, the appeal against the appellant No.1-Ram Sanehi has been abated vide order dated 07.01.2025. The order dated 07.01.2025 reads as under :- "1. In pursuance of the earlier order of this Court the Chief Judicial Magistrate, Raebareli has submitted a report dated 3.1.2025 informing that appellant no.1- Ram Sanehi has died on 19.8.2021. The Chief Judicial Magistrate, concerned along with is report has enclosed a report of Police Station Raebareli, a death certificate issued by the Registrar Birth and Death, Raebareli with regard to the death of appellant no.1- Ram Sanehi and has also recorded the statement of Anil Kumar Srivastava, Sub Inspector of Police, Police Station Bhadokhar and also of Govind and Ram Shila Prasad.

2. Thus, from the report of the Chief Judicial Magistrate, Raebareli and its enclosure, it is reflected that appellant no.1- Ram Sanehi has died on 19.8.2021. Thus, the proceedings of the instant appeal are abated so far as appellant no.1- Ram Sanehi is concerned.

3. List on 17.1.2025."

3. The instant criminal appeal under Section 374 (2) Cr.P.C. has been filed by the appellants impeaching the judgment and order dated

08.04.2004, passed by the Additional Session Judge/F.T.C.-3, Raebareli in Sessions Trial No.339/1998 (State Vs. Ram Sanehi and others), arising out of Case Crime No.101/1996, under Sections 325, 323, 504, 506, 308 I.P.C. at Police Station - Bhadokhar, District - Raebareli, whereby the appellants have been convicted for the offence under Section 323/34, 325/34, 308/34 and sentenced to undergo Six Months' imprisonment each 2 for the offence under Section 323/34 I.P.C.; Two Years' imprisonment with a fine of Rs.200/- each for the offence under Section 325/34 I.P.C. In default of payment of fine, they have to undergo one month's additional simple imprisonment; Four Years' imprisonment for the offence under Section 308/34 I.P.C. All the sentences are to run concurrently.

4. The prosecution version, in nutshell, is that on Tuesday i.e.

30.04.1996 an altercation took place in front of the shop of the informant Rohan Lal S/o Maharajdeen, R/o Majorganj, Police Station-Bhadokhar, Raebareli between the females of family of one Govind S/o Chauhraja Maurya, R/o Anuradhpur and the shop keepers whose shops were situated

in the vicinity for the reason that one boy of the first party shit on the platform of the shop of Husain Bux, R/o Majorganj and the shop keepers were intended to beat the other side and the son of the informant Jitendra @ Kallu interfered in the matter for the purpose of settlement of the dispute/altercation between the parties and the male members (boys) present with the females assaulted the son of the informant who was saved by the persons present in the market and thereafter on 01.05.1996 (Wednesday) at about 9.00 A.M. accused namely Jagdev S/o Ram Bharose, Ram Bharose S/o Mangali, Ram Sanehi S/o Jhoori R/o Majorganj Kanauli, Govind S/o Chauhraja Maurya R/o Anoodpur and others came to the shop of the informant, who was present along with his brother, and hurled abuses and assaulted with lathi. In the incident injuries were sustained. The informant and his brother, who were present at the shop sustained injuries. The F.I.R. indicates that the accused Jagdev was aggressor. The F.I.R. also indicates that the persons, namely Rohan Lal, Shyam Lal and Laxminarayan who interfered to save the informant and his brother also sustained injuries.

5. Based upon the written report dated 01.05.1996, an F.I.R./Case Crime No.101/1996, under Sections 323, 504, 506 I.P.C. was lodged at about 11.30 A.M. at Police Station Bhadokhar, District Raebareli. The injuries of injured Rohan Lal were examined on 01.05.1996 at about 1.25 P.M. by Dr. A.K. Singhal and on the same day at about 1.35 P.M. injures 3 of injured Shyam Lal were examined and at about 1.45 P.M. injuries of injured Laxmi Narayan were examined. To ascertain the head injury X- Ray was carried out by Dr. S.S. Trivedi, according to which parietal bone of injured Shyam Lal was fractured.

6. Thereafter, the Investigating Officer, after completing the investigation based upon the injuries sustained by the injured persons and injury reports, submitted charge sheet against accused Ram Sanehi, Ram Bharose, Jagdev and Govind for the offence under Sections 325, 323, 504, 506, 308 I.P.C.

7. After submission of the charge sheet before the Court of learned Magistrate the said case was committed to the Court of Sessions where it was registered as Sessions Trial No.339/1998. Due to the death of accused Ram Bharose during the course of the trial, the case against him was abated. The learned trial court framed charges against the accused- appellant Ram Sanehi, Jagdev and Govind under Section 308/34 I.P.C. The accused persons denied the charges and claimed trial.

8. In order to prove its case, the prosecution examined injured Rohan Lal (PW-1), injured Shyam Lal (PW-2), injured Laxmi Narayan (PW-3) as witnesses of fact and Rameshwar Prasad Maurya (PW-4), Dr. A.K. Singhal (PW-5), Gayatri Prasad Tiwari-Constable Moharrir (PW-6), Dr. S.S. Trivedi (PW-7) were examined as formal witnesses.

9. Injured Rohan Lal (PW-1), injured Shyam Lal (PW-2), injured Laxmi Narayan (PW-3), who sustained injuries, and witness Dr. A.K. Singhal (PW-5) and Dr. S.S. Trivedi (PW-7) established the case of the prosecution. 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. 4

10. After closing of the evidence, statement of accused-appellants under section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence and other circumstances, in which the accused denied the prosecution story and stated that false evidence has been adduced against them.

11. 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.

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

13. Learned counsel for the appellants submits that the accused- appellants have not been convicted previously for any offence and they are the first time offenders. 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.

14. 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').

15. 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,

16. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality 5 being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

17. 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.

18. 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.

19. 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.

20. 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 29 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 time offender and are not previously convicted in any case. He further 6 submitted that it is the Court which may consider the benefit of Section 4 of the Act of 1958 to the accused-appellants.

21. 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.

22. 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.

23. 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.

24. After considering the arguments advanced by the parties and after perusal of the material available on record, this court finds that except the part of 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.

25. 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 7 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."

26. 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 8 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."

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