State of U.P. vs Counsel for Appellant(s)

4. Heard learned counsel for the appellant(s), Sri Badrul Hasan, learned A.G.A. for the State and perused the record.

5. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellants namely Smt. Prema Devi, Sridevi and Rajesh, challenging the judgment and order 11.01.2011 passed by learned Additional Sessions Judge, Court No. 11, Lucknow in Session Trial No. 551 of 2007 thereby convicting and sentencing the appellants under Section 147 IPC for one year rigorous imprisonment to each appellants with a fine of Rs. 500/- to each, failing which, five days extra conviction, under Section 323 read with Section 147 of six months rigorous imprisonment to each appellants and fine of Rs. 500/- toe each, failing which, five days extra rigorous imprisonment, under Section 308 read with Section 149 IPC four years R.I. to each appellants alongwith fine of Rs. 4,000/- to each, failing which, four months extra R.I., under Section 452 IPC four year RI alongwith fine of Rs. 4000/- 2 CRLA No. 71 of 2011 to each, failing which, four months extra R.I. and under Section 405 and 506 IPC acquitted the appellants.

6. The story of prosecution, in nutshell, is to the effect that on 30.03.2008 at about 08:00 PM accused-appellants alongwith three others entered into the house of the informant forcefully and assaulted the informant Jagdish Prasad Mishra, his wife, his son(s) namely Vivek Mishra and Akshay Mishra and Meena Kashyap W/o Chunni Lal Kashyap with lathi, danda, Sariya and Banka. In the incident, Smt. Chandan Yadav and Udal Yadav caused fatal injury with lathi over the head of the informant. On information given, police reached the place of incident, however, prior to reaching the police at the place of incident, accused appellants fled away. Based upon the written report given by the informant, the FIR was lodged on 30.03.2006, registered as Case Crime No. 212 of 2006 under Sections 147, 323, 504, 506, 452, 308 IPC, at P.S.-Hazratganj, District-Lucknow.

7. The Investigating Officer, after completing the investigation, submitted the charge sheet against the appellants under Sections 147, 323/149, 308/149, 452, 504, 506 IPC.

8. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Session where it was registered as Session Trial No. 551 of 2007 and charges were framed against the accused /appellants, which they denied and claimed trial.

9. In order to substantiate its case, prosecution examined as many as eight witnesses namely Jagdish Prasad Mishra/PW-1(injured informant), Chunni Lal Kashyap/PW-2, Hemlata Mishra (injured)/PW-3, Vivek Kumar Mishra(injured)/PW-4, Akshay Mishra(injured)/PW-5, Dr. Neera Kohli/PW- 6, Dr. Sunil Chauhan/PW-7 and S.I. Amarpal Singh/PW-8, who proved the story of the prosecution as also the documentary evidence viz. written report, FIR etc.

10. That after closing of the evidence, statements of accused/ appellants were recorded in terms of Section 313 Cr.P.C. 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.

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. It is to be noted that testimony of injured(s) namely informant-Jagdish 3 CRLA No. 71 of 2011 Prasad Mishra, Hemlata Mishra, Vivek Kumar Mishra, Akashay Mishra have greater evidential value and unless compelling reasons exist, their testimony is not to be discarded. (See: State of M.P. v. Mansingh [State of M.P. v. Mansingh, (2003) 10 SCC 414 : (2007) 2 SCC (Cri) 390] (para 9); Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ; State of U.P. v. Naresh [State of U.P. v. Naresh, (2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216]).

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

14. 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 submission in the appeal only with respect to the order of sentence.

15. 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') and in not doing so, the trial court erred in law and fact both.

16. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused- appellants. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

17. 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.

18. 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. 4 CRLA No. 71 of 2011

19. 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.

20. 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.

21. 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 about 28 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 they may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter referred as the 'Act of 1958'). He further submitted that appellants are first time offender and 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.

22. 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.

23. 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 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 5 CRLA No. 71 of 2011 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 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 6 CRLA No. 71 of 2011 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."

4. Heard learned counsel for the appellant(s), Sri Badrul Hasan, learned A.G.A. for the State and perused the record.

5. The instant Criminal Appeal under Section 374 (2) Cr.P.C. has been filed by the appellants namely Smt. Prema Devi, Sridevi and Rajesh, challenging the judgment and order 11.01.2011 passed by learned Additional Sessions Judge, Court No. 11, Lucknow in Session Trial No. 551 of 2007 thereby convicting and sentencing the appellants under Section 147 IPC for one year rigorous imprisonment to each appellants with a fine of Rs. 500/- to each, failing which, five days extra conviction, under Section 323 read with Section 147 of six months rigorous imprisonment to each appellants and fine of Rs. 500/- toe each, failing which, five days extra rigorous imprisonment, under Section 308 read with Section 149 IPC four years R.I. to each appellants alongwith fine of Rs. 4,000/- to each, failing which, four months extra R.I., under Section 452 IPC four year RI alongwith fine of Rs. 4000/- 2 CRLA No. 71 of 2011 to each, failing which, four months extra R.I. and under Section 405 and 506 IPC acquitted the appellants.

6. The story of prosecution, in nutshell, is to the effect that on 30.03.2008 at about 08:00 PM accused-appellants alongwith three others entered into the house of the informant forcefully and assaulted the informant Jagdish Prasad Mishra, his wife, his son(s) namely Vivek Mishra and Akshay Mishra and Meena Kashyap W/o Chunni Lal Kashyap with lathi, danda, Sariya and Banka. In the incident, Smt. Chandan Yadav and Udal Yadav caused fatal injury with lathi over the head of the informant. On information given, police reached the place of incident, however, prior to reaching the police at the place of incident, accused appellants fled away. Based upon the written report given by the informant, the FIR was lodged on 30.03.2006, registered as Case Crime No. 212 of 2006 under Sections 147, 323, 504, 506, 452, 308 IPC, at P.S.-Hazratganj, District-Lucknow.

7. The Investigating Officer, after completing the investigation, submitted the charge sheet against the appellants under Sections 147, 323/149, 308/149, 452, 504, 506 IPC.

8. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Session where it was registered as Session Trial No. 551 of 2007 and charges were framed against the accused /appellants, which they denied and claimed trial.

9. In order to substantiate its case, prosecution examined as many as eight witnesses namely Jagdish Prasad Mishra/PW-1(injured informant), Chunni Lal Kashyap/PW-2, Hemlata Mishra (injured)/PW-3, Vivek Kumar Mishra(injured)/PW-4, Akshay Mishra(injured)/PW-5, Dr. Neera Kohli/PW- 6, Dr. Sunil Chauhan/PW-7 and S.I. Amarpal Singh/PW-8, who proved the story of the prosecution as also the documentary evidence viz. written report, FIR etc.

10. That after closing of the evidence, statements of accused/ appellants were recorded in terms of Section 313 Cr.P.C. 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.

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. It is to be noted that testimony of injured(s) namely informant-Jagdish 3 CRLA No. 71 of 2011 Prasad Mishra, Hemlata Mishra, Vivek Kumar Mishra, Akashay Mishra have greater evidential value and unless compelling reasons exist, their testimony is not to be discarded. (See: State of M.P. v. Mansingh [State of M.P. v. Mansingh, (2003) 10 SCC 414 : (2007) 2 SCC (Cri) 390] (para 9); Abdul Sayeed v. State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] ; State of U.P. v. Naresh [State of U.P. v. Naresh, (2011) 4 SCC 324 : (2011) 2 SCC (Cri) 216]).

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

14. 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 submission in the appeal only with respect to the order of sentence.

15. 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') and in not doing so, the trial court erred in law and fact both.

16. The Trial Court did neither invoke the provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C. while sentencing the accused- appellants. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

17. 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.

18. 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. 4 CRLA No. 71 of 2011

19. 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.

20. 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.

21. 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 about 28 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 they may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter referred as the 'Act of 1958'). He further submitted that appellants are first time offender and 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.

22. 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.

23. 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 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 5 CRLA No. 71 of 2011 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 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 6 CRLA No. 71 of 2011 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."