Sanjai Kumar and Ors. … v. State of U.P on 20 Nov 2025

Judgment

2. HON'BLE SAURABH LAVANIA, J. Heard Sri Arun Sinha, learned Senior Advocate assisted by Sri Ankur Singh, Advocate, who appeared for the appellant Nos. 1 to 3 & 5 and Sri Akhilesh Kumar Tiwari, Advocate, who appeared for the appellant No. 4 and also learned AGA for the State of U.P. as well as perused the record. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been filed by the appellants namely Sanjai Kumar s/o Krishan Prasad, Ram Chandra s/o Dharm Datt, Lal Mani s/o Ram Narain, Ajit Kumar s/o Lal Mani and Anand Gopal s/o Suresh Narain all R/o Village- Beermau, Police Station- Kandhai, District- Pratapgarh challenging the judgment and order 16.12.2010 passed by Additional Sessions Judge/F.T.C., Court No. 7, Pratapgarh (in short "trial court") in Session Trial No. 458/1998, arising out of Case Crime No. 171/1994, under Sections- 147, 323, 504 IPC and Section 3(1)(X) SC/ST Act, Police Station- Kandhai, District- Pratapgarh, thereby convicting and sentencing the appellants under Section under Section 147 IPC for a period of six months' 2 CRIMINAL APPEAL No. - 40 of 2011 imprisonment alongwith fine of Rs. 500/- and in default of payment of fine one month's additional simple imprisonment, 323/149 IPC with fine of Rs. 1000/- each and in default of payment of fine one month's additional imprisonment, 504 IPC with fine of Rs. 1000/- each and in default of payment of fine one month's additional simple imprisonment and under Section 3(1) (X) SC/ST Act for a period of six months' rigorous imprisonment alongwith fine of Rs. 1000/- each and in default of payment of fine further one month's rigorous imprisonment. All the sentences were ordered to run concurrently. As per the letter of Chief Judicial Magistrate, Pratapgarh dated 19.11.2025, the appellant No. 3/Lal Mani s/o Ram Narain and appellant No. 5/Anand Gopal s/o Suresh Narain have died 2 and 3 years ago, respectively. Accordingly, the instant appeal is dismissed as abated so far as it relates to appellant No. 3/Lal Mani s/o Ram Narain and appellant No. 5/Anand Gopal s/o Suresh Narain. The case of the prosecution as appears from the record, in nutshell, is to the effect that the incident took place on 17.06.1994 at about 9.30 P.M., as per which the accused-appellants hurled abuses and also made casteist remarks against the injured/informant namely Govind Lal Harijan s/o Ram Narain Harijan, belonging to SC category, and on being opposed by the informant, the accused-appellants also assaulted him. This incident was seen by various persons including Shiv Shankar Saroj s/o Bhagwan Saroj.

The written report (Ext.Ka.-1) of the incident was submitted at Police Station- Kandhai, District- Pratapgarh and based upon the same, an FIR (Ext.Ka.-3) registered as Case Crime No. 171/1994, under Sections- 147, 323, 504 IPC and Section 3(1)(X) SC/ST Act was lodged against the accused-appellants. G.D. entry (Ext.Ka.4) of the same was also made. The injured/informant namely Govind Lal Harijan (PW-1) was examined at P.H.C., Kohdaur on 19.06.1994 at about 12.30 Noon by Dr. Rajesh Srivastava (PW-2), who prepared the injury report (Ext.Ka.-2), wherein following injures have been indicated:- "1- (cid:1)(cid:2)ल(cid:4)(cid:5) (cid:7)(cid:1)(cid:8)(cid:9)(cid:1) 5 (cid:10)(cid:11)(cid:12)(cid:2) x 3.5 (cid:10)(cid:11)(cid:12)(cid:2) (cid:13)(cid:9)(cid:14)(cid:15)(cid:1)(cid:11) (cid:1)(cid:11)(cid:16) (cid:4)(cid:17)लक क(cid:11) (cid:19)(cid:9)(cid:20)(cid:21) ओ(cid:20) उप(cid:20)(cid:25) व (cid:7)(cid:1)(cid:19)ल(cid:2) पलक क(cid:17) ल(cid:11)(cid:27)(cid:11) (cid:15)(cid:28)ए (cid:20)(cid:30)(cid:4) (cid:1)(cid:2)ल(cid:9) । 2- ख(cid:20)(cid:9)(cid:10) !(cid:11)ढ (cid:10)(cid:11)(cid:12)(cid:2) x 3.5 (cid:10)(cid:11)(cid:12)(cid:2) #(cid:9)$(cid:11) (cid:4)(cid:9)ल प(cid:20) #(cid:9)$(cid:11) %(cid:11)(cid:4)(cid:10) क(cid:11) प(cid:9)&’ ((cid:9)(cid:4) प(cid:20) पप!(cid:25) (cid:12))*(cid:5)(cid:13) +(cid:2) ।

10. 3 CRIMINAL APPEAL No. - 40 of 2011 3- ख(cid:20)(cid:9)(cid:10) 2 (cid:10)(cid:11)(cid:12)(cid:2) x 1.5 (cid:10)(cid:11)(cid:12)(cid:2) #(cid:9)$(cid:11) क(cid:30) ,(cid:11) प(cid:20) (ए-(cid:17)(cid:7)(cid:12)$(cid:1)) (क(cid:30) ,(cid:11) क. (cid:15)!!(cid:25) क(cid:9) एक (cid:14)(cid:15)(cid:20)(cid:10)(cid:9)) /*(cid:10) प(cid:20) पप!(cid:25) (cid:12))*(cid:5)(cid:13) +(cid:2)। 4- ख(cid:20)(cid:9)(cid:10) 1 (cid:10)(cid:11)(cid:12)(cid:2) x 3 (cid:10)(cid:11)(cid:12)(cid:2) #(cid:9)$(cid:11) प0(cid:20) प(cid:20) 1(cid:28)ट(cid:1)(cid:11) (cid:10)(cid:11) 4 (cid:10)(cid:11)(cid:12)(cid:2) (cid:1)(cid:2)(cid:19)(cid:11) पप!(cid:25) (cid:12))*(cid:5)(cid:13) +(cid:2)।" According to the opinion of doctor concerned, all the injures were simple in nature and could be caused by hard and blunt object. The Investigating Officer (in short "IO") upon completion of investigation, which includes preparing of site plan, recording the statements of witnesses of prosecution including the statement of injured/informant namely Govind Lal Harijan (PW-1) and collecting other evidence including the injury report, submitted the charge sheet (Ext.Ka.-6) before the Magistrate concerned, who committed the case to the court of sessions on 30.09.1999, where it was registered as Session Trial No. 458/1998 and charges were framed against the accused-appellants, named above, under Sections- 147, 323, 504 IPC and Section- 3(1)(X) SC/ST Act. The accused-appellants denied the charges and claimed trial. The prosecution thereafter to establish its case examined injured informant/Govind Lal (PW-1), Dr. Rajesh Srivastava (PW-2) and Constable 182 C.P. Jatashankar Shukla (PW-3). These witnesses proved the story of prosecution and documentary evidence. It would be apt to indicate here that it is well established that the evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he/she has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: State of M.P. vs. Mansingh, (2003) 10 SCC 414; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; 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; Balu Sudam Khalde 4 CRIMINAL APPEAL No. - 40 of 2011 and another vs. State of Maharashtra, 2023 SCC OnLine SC 355]. That after closing of the evidence, statements of accused/ appellants under section 313 Cr.P.C. were recorded by the trial 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. It would be apt to indicate here that in the FIR and also in the charge sheet, specific allegations related to casteist remarks have not been indicated. 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 him as above. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellants have preferred the present appeal. 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 his submission in the appeal only with respect to the order of conviction and sentence for the offence under SC/ST Act for the reason that the same is not made out, as to establish the offence under SC/ST Act, no independent witness was produced. 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'), after acquitting the appellants for the offence under Section 3(1)10 of SC/ST Act, which may be done by this Court. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality and, therefore, it cannot be sustained. It is also stated that 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

18. 5 CRIMINAL APPEAL No. - 40 of 2011 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. 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. 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 appellant submitted that it is upon the discretion of the Court to grant benefits in either of the Acts. 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 31 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 (hereinafter referred as the ‘Act of 1958’), after acquitting the accused-appellants for the offence under SC/ST Act. He further submitted that appellants are the first time offenders 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-appellants. 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. Learned A.G.A. 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

23. 6 CRIMINAL APPEAL No. - 40 of 2011 period which has lapsed since the date of incident, the benefit of Section 4 of the Act, 1958 can be granted in this case.

24. 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.

25. 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.

26. Sections 3 and 4 of the Probation of Offenders Act, 1958 are extracted hereunder: "3. Power of court to release certain offenders after admonition.- "Where any person is found guilty of having committed an offence punishable under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.-For the purposes of this Section, previous conviction against a person shall include any previous order made against him under this Section or Section 4.

4. Power of Court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable 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 7 CRIMINAL APPEAL No. - 40 of 2011 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."

27. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of Probation of Offenders Act, 1958, has observed in para no. 4, as follows:- "4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act."