Ramu State of U.P v. …

Judgment

1. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

2. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been filed by the accused/appellant, namely, Ramu s/o Sripal r/o V/illage Mahrajpur, P.S.- Kamlapur, District- Sitapur challenging the judgment and order dated 17.04.2003 passed by the learned Additional Sessions Judge, Court No.10, District- Sitapur in S.T. No.563 of 2000, arising out of Crime No.32 of 2000, P.S.- Kamlapur, District- Sitapur, convicting and sentencing the appellant- Ramu to undergo five years rigorous imprisonment with a fine of Rs.500/- under Section 459 I.P.C.; and further to undergo two years rigorous imprisonment with a fine of Rs.500/- under Section 380 I.P.C. Both the sentences were ordered to run concurrently.

3. Prosecution story, in brief, is that an FIR was lodged on

10.02.2000 at P.S.- Kamlapur at 7:45 A.M. by the informant- Dineshwar Prasad s/o Khageshwar Prasad r/o Village- Purwa -2- Crl. Appeal No.655 of 2003 Majra, Sarvarpur, P.S.- Kamlapur, District- Sitapur, against accused Ramu (appellant herein), Pukka, Balram and some other unknown miscreants stating therein that in the midnight of 9/10.02.2000 at about 12:00 o’clock some miscreants came from the back side of the informant’s house and some came from the other side and when the informant’s father, namely, Khageshwar

Prasad resisted the miscreants, they made fire upon his father which hit on his shoulder. On hearing the noise, the informant and his brother woke up and to save his father, they started fighting with the miscreants. The informant and his brother were also assaulted by the miscreants with dandas. In the light of lantern in the house, some miscreants were identified by their names and some by their face. Among those who were identified by their names, the informant told the name of appellant-Ramu, Pukka and Balram. As per informant, the miscreants looted the jewellery, utensils, clothes etc. from his house. The father of the informant was taken to hospital in injured condition.

4. The Investigating Officer (in short ‘I.O.’), after completing the investigation, submitted the charge sheet against the accused/appellant and co-accused, namely, Kallu, Prakash, Bhulli, Shrikeshan, Shankar and Uddan.

5. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Sessions where it was registered as S.T. No.563 of 2000 and charges were framed against the accused/appellant and other co-accused under Sections 459, 380, 411 I.P.C. The charges were denied by the accused/appellant and co-accused and they claimed trial.

6. In order to substantiate its case, prosecution examined as many as seven witnesses, namely, injured/informant/Dineshwar (P.W.1), who proved the FIR (Ext.1), recovery memo (Ext.Ka-2), utensils (Ext.1 to 7 and Ext.8 and 9), injured/Khageshwar Prasad (P.W.2), -3- Crl. Appeal No.655 of 2003 S.I. Shivprasad (P.W.3), Dr. S.K. Srivastava (P.W.4), who proved the injury report of informant as Ext.Ka-3 and Ext.Ka-4, S.I. Ramsahodar Singh (P.W.5), Dr. Ajay Kumar Saxena (P.W.6), who proved the injury report of Khageshwar Prasad as Ext.Ka-9 and Constable Narendra Kumar Tiwari (P.W.7).

7. After closing of the evidence, statements of accused/appellant along with other accused were recorded by the trial court in terms of Section 313 Cr.P.C., 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.

8. 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/appellant- Ramu guilty and convicted him, as above. However, the other persons, namely, Kallu, Prakash, Bhulli, Shrikeshan, Shankar and Uddan were acquitted from the charges.

9. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has preferred the present appeal.

10. 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 submission in the appeal only with respect to the order of conviction and sentence for the reason that after taking note of the prosecution story, proved by the witnesses of fact, 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. -4- Crl. Appeal No.655 of 2003

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 -5- Crl. Appeal No.655 of 2003 is upon the discretion of the Court to grant benefits in either of the Acts.

16. 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 25 years ago and there is no further criminal antecedent of the appellant. The delay in trial deprives the right of the appellant of speedy trial and he may be given benefit of first offender and he may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter 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-appellants.

17. 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.

18. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant is 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-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.

19. 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.

20. 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 -6- Crl. Appeal No.655 of 2003 Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard.

21. 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."

22. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of -7- Crl. Appeal No.655 of 2003 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."

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

Prasad resisted the miscreants, they made fire upon his father which hit on his shoulder. On hearing the noise, the informant and his brother woke up and to save his father, they started fighting with the miscreants. The informant and his brother were also assaulted by the miscreants with dandas. In the light of lantern in the house, some miscreants were identified by their names and some by their face. Among those who were identified by their names, the informant told the name of appellant-Ramu, Pukka and Balram. As per informant, the miscreants looted the jewellery, utensils, clothes etc. from his house. The father of the informant was taken to hospital in injured condition.

4. The Investigating Officer (in short ‘I.O.’), after completing the investigation, submitted the charge sheet against the accused/appellant and co-accused, namely, Kallu, Prakash, Bhulli, Shrikeshan, Shankar and Uddan.

5. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Sessions where it was registered as S.T. No.563 of 2000 and charges were framed against the accused/appellant and other co-accused under Sections 459, 380, 411 I.P.C. The charges were denied by the accused/appellant and co-accused and they claimed trial.

6. In order to substantiate its case, prosecution examined as many as seven witnesses, namely, injured/informant/Dineshwar (P.W.1), who proved the FIR (Ext.1), recovery memo (Ext.Ka-2), utensils (Ext.1 to 7 and Ext.8 and 9), injured/Khageshwar Prasad (P.W.2), -3- Crl. Appeal No.655 of 2003 S.I. Shivprasad (P.W.3), Dr. S.K. Srivastava (P.W.4), who proved the injury report of informant as Ext.Ka-3 and Ext.Ka-4, S.I. Ramsahodar Singh (P.W.5), Dr. Ajay Kumar Saxena (P.W.6), who proved the injury report of Khageshwar Prasad as Ext.Ka-9 and Constable Narendra Kumar Tiwari (P.W.7).

7. After closing of the evidence, statements of accused/appellant along with other accused were recorded by the trial court in terms of Section 313 Cr.P.C., 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.

8. 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/appellant- Ramu guilty and convicted him, as above. However, the other persons, namely, Kallu, Prakash, Bhulli, Shrikeshan, Shankar and Uddan were acquitted from the charges.

9. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has preferred the present appeal.

10. 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 submission in the appeal only with respect to the order of conviction and sentence for the reason that after taking note of the prosecution story, proved by the witnesses of fact, 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. -4- Crl. Appeal No.655 of 2003

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 -5- Crl. Appeal No.655 of 2003 is upon the discretion of the Court to grant benefits in either of the Acts.

16. 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 25 years ago and there is no further criminal antecedent of the appellant. The delay in trial deprives the right of the appellant of speedy trial and he may be given benefit of first offender and he may be extended the benefit of Probation of Offenders Act, 1958 (hereinafter 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-appellants.

17. 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.

18. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant is 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-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.

19. 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.

20. 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 -6- Crl. Appeal No.655 of 2003 Act of 1958 is concerned, it is essential to discuss the legal position and law propounded in this regard.

21. 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."

22. That Hon'ble Supreme Court in Ratan Lal vs State of Punjab, AIR 1965 SC 444, while discussing the purpose and object of -7- Crl. Appeal No.655 of 2003 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."

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