Criminal Appeal No. 859 of 2009 · High Court · 2025 on 15 Jul 2025 — Criminal Appeal No. 859 of 2009

Judgment

1. Since in both the appeals the judgment and order dated

17.03.2009 passed in S.T. No.417 of 2006, has been challenged and, therefore, the same are being decided by this judgment.

2. Heard learned counsel for the appellants, Shri Ajay Kumar Srivastava, learned A.G.A. for the State and perused the record.

3. The instant Criminal Appeals under Section 374(2) Cr.P.C. have been filed by the appellants namely Smt. Ram Beti wife of Jai Singh (Criminal Appeal No.859 of 2009) and Jai Singh s/o Ram Sawroop (Criminal Appeal No.857 of 2009), r/o Village Vaisanpurwa, District- Hardoi, challenging the judgment and order 17.03.2009, passed by the learned Sessions Judge, Hardoi, in S.T. No.417 of 2006, arising out of Crime No.41 of 2006, under Sections 304/34 I.P.C., P.S.- Kotwali Mallawan, District- Hardoi, convicting and sentencing the appellant- Jai Singh under Section 304 Part-II of I.P.C. to rigorous imprisonment for 7 years with a fine of Rs.1000/- and in default of payment of fine to undergo one month additional rigorous Page No.2 of 23 imprisonment whereas appellant -Smt. Ram Beti was convicted and sentenced to undergo 5 months simple imprisonment under Section 323 I.P.C.

4. It is stated that according to the case of prosecution, the FIR (Ext.Ka-01) was lodged by informant Satyapal s/o Gajraj, r/o Vaisanpurwa, hamlet of Babatmau, Police Station- Mallawan, District- Hardoi stating therein that on 12.02.2006 at about 2:00

P.M. when Smt. Ramayanshree wife of informant had gone to fetch water then both the accused-appellants, who were having enmity because of partition of land with them first started abusing her and then assaulted her with lati, dandas due to which she sustained injuries and succumbed to injuries.

5. The FIR of the aforesaid case was registered on the same day, i.e. 12.02.2006 at about 16:30 hours as NCR No.11/06, under Sections 323, 504 I.P.C. at P.S.- Mallawan, District- Hardoi, which based upon the investigation report was subsequently converted into Crime No.41/06, under Section 308 I.P.C. vide G.D. No.09 dated 14.02.2006 (Ext.Ka-4) and subsequently due to death of Smt. Ramayanshree, the same was converted under Section 304 I.P.C. The deceased, according to the injury report (Ext.Ka-7) at the time of incident, was aged about 30 years. The deceased was examined by Dr. R.K. Mishra (P.W.5), Medical Officer, Incharge Community Health Centre, Madhoganj, District- Hardoi.

6. The injuries indicated in the medical report are as under :- “(i) Lacerated wound 3 cm x 1/2 cm into sculp deep on the left side of the head, 10 cm above from ear bleeds on touch. (ii) Contusion 06 cm x 05 cm on the left temporal reason, 01 cm outer to lateral angle of eye reddish, black eye is present. (iii) Vomiting is present patient is semiconscious bleeding from nose is present.” Page No.3 of 23

7. Subsequently, the body was sent for post-mortem examination and Dr. Anoop Kumar Srivastava (P.W.6), had conducted the post-mortem of the deceased. According to post-mortem report (Ext.Ka-8), the following injuries were sustained by the deceased:- “(i) Stitched wound 7 cm in length present on left side skull above from left ear. On opening left parietal bone found fractured. (ii) Contusion 5 cm x 4 cm present around the left eye. (iii) Contusion 6 cm x 2.5 cm present on left side chest.”

8. The Investigating Officer, based upon the evidence available submitted charge sheet (Ext.Ka-10).

9. Thereafter the said case was committed to the Court of Session where it was registered as S.T. No.417 of 2006 and charges under Sections 304/34 I.P.C. were framed against the accused/ appellants which they denied and claimed trial.

10. To establish/prove the case, the prosecution examined as many as nine witnesses, namely, Satyapal (P.W.1) and Suman (P.W.2), who proved the prosecution story, Yadunath Singh (P.W.3), Constable Ghanshyam Singh (P.W.4), Dr. R.K. Mishra (P.W.5), who proved the injury report of the deceased, Dr. Anoop Kumar Srivatava (P.W.6), who proved the post-mortem report of deceased, S.I. Ramakant Prasad (P.W.7), S.I. Sarnath Singh (P.W.8) and S.I. Ram Swaroop Pandey (P.W.9).

11. That after closing of the evidence, statements of accused/ appellants under Section 313 Cr.P.C. was 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. Page No.4 of 23

12. Thereafter, the learned trial court, after considering the material brought on record and statement of Satyapal (P.W.1) and Suman (P.W.2), who proved the prosecution story, the formal witnesses who proved the documents filed along with the charge sheet including the injury report of the deceased, which was proved by Dr. R.K. Mishra (P.W.5) and post mortem report, which was proved by Dr. Anoop Kumar Srivastava (P.W.6) found that the offence under Section 304 I.P.C. is not made out against the accused appellants, therefore, appellant- Jai Singh is liable and convicted for the offence under Section 304 Part-II I.P.C. and the appellant- Smt. Ram Beti is liable and convicted for the offence under Section 323 I.P.C., as above.

13. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused/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 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 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 acquitted the appellants for the offence mentioned above and 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 Page No.5 of 23 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.

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 appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts. Page No.6 of 23

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 19 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 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.

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-appellants have 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 was 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 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 Page No.7 of 23 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." Page No.8 of 23

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."

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