Gudoo State of U.P v. …

Judgment

1. Heard Sri Pravin Kumar Verma, Advocate, who filed Vakalatnama on behalf of the appellant in the Court today, which is taken on record, and Sri Ajay Kumar Srivastava, learned AGA for the State of U.P. as well as perused the record.

2. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been filed by the appellant namely Gudoo s/o Kishan Yadav challenging the judgment and order 16.11.2010 passed by the Additional District and Sessions Judge-07, Lucknow in Sessions Trial No. 803 of 2007, arising out of Case Crime No. 172 of 2007, under Sections 304/34, 308/34, 323/34, 504 IPC, P.S.- Kakori, District- Lucknow, thereby convicting and sentencing the appellant under Section 304/34 IPC for seven years rigorous imprisonment with fine of Rs. 5,000/- and in default of payment of fine further to undergo one year's rigorous imprisonment, under Section 323/34 IPC for one year rigorous imprisonment and under Section 504 IPC for one year rigorous imprisonment.

3. The case of the prosecution, as appears from the record, is to the effect that informant/Suresh Yadav gave a written report on 17.05.2007 at Police Station- Kakori, District- Lucknow. According to the same on 2 CRLA No. - 28 of 2011

17.05.2007, accused namely Nanha and Guddu sons of Shrikeshan put a thatched shed on the wall belonging to Ram Naresh, brother of informant/Suresh Yadav, and on being opposed by Ram Naresh these persons assaulted Ram Naresh with sticks, rods and kicks and fists causing him serious injuries including head injury and on hearing the commotion/noise when the informant and his brother Rajesh rushed to the spot, both were also beaten and abused by the said accused.

4. Thereafter, based upon the written report (Ext.Ka.-1) of the incident, an FIR registered as Case Crime No. 172 of 2007, under Sections 308, 323, 504 IPC at P.S.- Kakori, District- Lucknow was lodged against the accused, named above, on 17.05.2007 at about 22.30 hours.

5. During investigation, Ram Naresh died on 18.05.2007 and thereafter, the Investigating Officer (in short "IO") after recording the statements of witnesses of prosecution and collecting other evidence including injury report and post-mortem report submitted the charge sheet against the accused under Sections 308, 304, 323, 504 IPC.

6. After submission of charge sheet before the Court of learned Magistrate the said case was committed to the Court of Sessions where it was registered as S.T. No. 803 of 2007 and charges for the offence under Sections 304/34, 308/34, 323/34, 504 IPC were framed against the accused, which they denied and claimed trial.

7. In order to substantiate/prove its case, the prosecution examined complainant/Suresh Yadav (PW-1), Rajesh (PW-2), Renu (PW-3), Bitana (PW-4), Dr. Pradeep Tiwari (PW-5), S.I. Amrish Kumar Singh (PW-6), S.H.O. Indrajeet Singh (PW-7), Dr. Satish Kumar (PW-8), S.I. Vinod Yadav (PW-9) and Dr. Pradeep Kumar Dwivedi (PW-10). PW-1 to PW- 10 proved the case of the prosecution including the documentary evidence viz. written report, injury report, post-mortem report, site plan etc.

8. That after closing of the evidence, statement of accused 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 trial court upon due consideration of the evidence of prosecution came to the conclusion that offence is made out against the appellant under Sections 304/34, 308/34, 323/34, 504 IPC and convicted him accordingly.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has preferred the present appeal. 3 CRLA No. - 28 of 2011

11. Learned counsel for the appellant submits that the accused- appellant has 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 conviction and sentence for the offence under Section 304 Part II IPC.

12. Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellant has 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') after convicting the appellant for the offence under Section 304 Part II IPC, which may be done by this Court.

13. Learned counsel for the accused-appellant submits that to the aforesaid extent, the impugned judgment and order suffers from serious illegality and, therefore, it cannot be sustained.

14. 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.

15. 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 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.

16. 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 appellant submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

17. 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 18 years ago and there is no further crisminal antecedent of the appellant. The delay in trial deprives the right of the appellant of 4 CRLA No. - 28 of 2011 speedy trial and they may be given benefit of first offender and appellant may be extended the benefit of Probation of Offenders Act, 1958 (herein after 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.

18. 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.

19. Learned AGA appearing for the State does not dispute the fact that accused-appellant is 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- 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.

20. 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.

21. 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.

22. 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 5 CRLA No. - 28 of 2011 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. Power of Court to release certain offenders on 4. 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."

23. 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 6 CRLA No. - 28 of 2011 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."

17.05.2007, accused namely Nanha and Guddu sons of Shrikeshan put a thatched shed on the wall belonging to Ram Naresh, brother of informant/Suresh Yadav, and on being opposed by Ram Naresh these persons assaulted Ram Naresh with sticks, rods and kicks and fists causing him serious injuries including head injury and on hearing the commotion/noise when the informant and his brother Rajesh rushed to the spot, both were also beaten and abused by the said accused.

4. Thereafter, based upon the written report (Ext.Ka.-1) of the incident, an FIR registered as Case Crime No. 172 of 2007, under Sections 308, 323, 504 IPC at P.S.- Kakori, District- Lucknow was lodged against the accused, named above, on 17.05.2007 at about 22.30 hours.

5. During investigation, Ram Naresh died on 18.05.2007 and thereafter, the Investigating Officer (in short "IO") after recording the statements of witnesses of prosecution and collecting other evidence including injury report and post-mortem report submitted the charge sheet against the accused under Sections 308, 304, 323, 504 IPC.

6. After submission of charge sheet before the Court of learned Magistrate the said case was committed to the Court of Sessions where it was registered as S.T. No. 803 of 2007 and charges for the offence under Sections 304/34, 308/34, 323/34, 504 IPC were framed against the accused, which they denied and claimed trial.

7. In order to substantiate/prove its case, the prosecution examined complainant/Suresh Yadav (PW-1), Rajesh (PW-2), Renu (PW-3), Bitana (PW-4), Dr. Pradeep Tiwari (PW-5), S.I. Amrish Kumar Singh (PW-6), S.H.O. Indrajeet Singh (PW-7), Dr. Satish Kumar (PW-8), S.I. Vinod Yadav (PW-9) and Dr. Pradeep Kumar Dwivedi (PW-10). PW-1 to PW- 10 proved the case of the prosecution including the documentary evidence viz. written report, injury report, post-mortem report, site plan etc.

8. That after closing of the evidence, statement of accused 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 trial court upon due consideration of the evidence of prosecution came to the conclusion that offence is made out against the appellant under Sections 304/34, 308/34, 323/34, 504 IPC and convicted him accordingly.

10. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has preferred the present appeal. 3 CRLA No. - 28 of 2011

11. Learned counsel for the appellant submits that the accused- appellant has 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 conviction and sentence for the offence under Section 304 Part II IPC.

12. Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances, including the fact that the accused- appellant has 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') after convicting the appellant for the offence under Section 304 Part II IPC, which may be done by this Court.

13. Learned counsel for the accused-appellant submits that to the aforesaid extent, the impugned judgment and order suffers from serious illegality and, therefore, it cannot be sustained.

14. 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.

15. 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 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.

16. 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 appellant submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

17. 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 18 years ago and there is no further crisminal antecedent of the appellant. The delay in trial deprives the right of the appellant of 4 CRLA No. - 28 of 2011 speedy trial and they may be given benefit of first offender and appellant may be extended the benefit of Probation of Offenders Act, 1958 (herein after 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.

18. 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.

19. Learned AGA appearing for the State does not dispute the fact that accused-appellant is 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- 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.

20. 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.

21. 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.

22. 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 5 CRLA No. - 28 of 2011 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. Power of Court to release certain offenders on 4. 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."

23. 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 6 CRLA No. - 28 of 2011 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."