State v. Sitlu and Others) thereby convicting and sentencing the

3. The story of prosecution, in nutshell, is to the effect that on 30.07.2001 the injured informant namely Vishwanath S/o Durga Pasi resident of Daudpur Gadai, P.S.-Gadaganj, Raebareli submitted a written report at P.S.- Gadaganj, Raebareli. Based upon the same, the FIR was lodged on 30.07.2001, registered as Case Crime No. 72 of 2001 under Sections 308, 506, 504, 323 IPC at P.S.-Gadaganj, Raebareli.

4. According to the written report, on 29.07.2001 some hot talk took place between the informant and accused appellant namely Sitlu @ Ghisai Pasi. This hot talk took place on account of placing 'Jhakhar' on the path/way. The written report also indicates that on 30.07.2001 at about 08:00 AM son of the informant namely Ram Khelawan was going to ease himself and in the way i.e. in front of house of Chhabba Pasi, Sitlu @ Ghisai Pasi S/o Birbal, Naresh S/o Bharose, Deepak S/o Naresh and Chhabba S/o Bacchu resident of same vicinity hurled abuses upon Ram Khelawan, son of the informant, 2 CRLA No. 1015 of 2004 which was opposed by him and in response, accused-appellants assaulted Ram Khelawan who succumbed to injuries and also informant namely Vishwanath on hearing commotion reached the spot, where he was also assaulted, and he found his son in unconscious state. Ram Khelawan S/o of injured informant/Vishwanath died during treatment.

5. The Investigating Officer, after completing the investigation, submitted the charge sheet against the appellants under Sections 304, 323, 504, 506 IPC.

6. 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. 140 of 2002 and charges were framed against the appellants, which they denied and claimed trial.

7. In order to substantiate its case, prosecution examined as many as nine witnesses. Injured informant/Vishwanath/PW-1, who proved the facts of the case as also the FIR. Kandhai/PW-2 and Devideen/PW-3 were declared hostile by the trial Court. R.K. Mishra/PW-4, proved the injury report (Ext. Ka-2) of deceased Ram Khelawan. Dr. Asharam/PW-5, proved the injury report (Ext. Ka-3) of informant/Vishwanath. Constable Buddhilal/PW-6, proved the Chik FIR (Ext. Ka-4) and G.D. (Ext. Ka-5). Dr. A.R.Tripathi/PW-7, proved post mortem report (Ext. Ka-6) of deceased Ram Khelawan. H.C.P. Ramji Tiwari/PW-8, proved the site plan (Ext. Ka-7), recovery memo (Ext. Ka-8) and charge sheet (Ext. Ka-9). Sukku Rana/PW- 9, proved the inquest report (Ext. Ka-10), Sample (Ext. Ka-11), photographs of the deceased (Ext. Ka-12), letter to the CMO (Ext. Ka-13), letter to the R.I. ((Ext. Ka-14) and Challan of the body of the deceased (Ext. Ka-15). injured

8. 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.

9. 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.

10. It is to be noted that testimony of injured informant/Vishwanath/PW-1, has greater evidential value and unless compelling reasons exist, his statement 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 3 CRLA No. 1015 of 2004 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]).

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

12. In the aforesaid brief facts of the case, it is stated that the trial Court committed error of facts and law both in convicting the appellants for the offence under Section 304 Part-I as a bare perusal of the contents of the FIR, the basic story of the prosecution, would indicate that on account of previous hot talk between the informant and accused/Sitlu @ Ghisai Pasi i.e. on 29.07.2001, on 30.07.2001 the hot talk took place between the deceased and accused-appellants in which accused/appellants also hurled abuses, which the accused- was opposed by appellants assaulted the deceased and thus the incident occurred without premeditation of mind/on spur of moment and in the incident deceased sustained injuries. If the case of the prosecution taken on its face value, then in that eventuality, in the facts of the case the judgment of the trial Court is liable to be modified for the offence under Section 304 IPC Part-II and thereafter the benefit of Probation of Offenders Act, 1958 be extended to the accused-appellants, which is permissible under the law. the deceased and retaliation,

13. 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 also submitted that he is challenging the impugned judgment only with respect to the conviction and sentence for the offence under Section 304 Part-I IPC.

14. 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.

15. 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 24 years ago and there is no further criminal antecedent of the appellants. The delay in trial deprives the right of the appellant of speedy trial and they may be given benefit of first offender and they may be 4 CRLA No. 1015 of 2004 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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. 5 CRLA No. 1015 of 2004

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."

21. 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."

3. The story of prosecution, in nutshell, is to the effect that on 30.07.2001 the injured informant namely Vishwanath S/o Durga Pasi resident of Daudpur Gadai, P.S.-Gadaganj, Raebareli submitted a written report at P.S.- Gadaganj, Raebareli. Based upon the same, the FIR was lodged on 30.07.2001, registered as Case Crime No. 72 of 2001 under Sections 308, 506, 504, 323 IPC at P.S.-Gadaganj, Raebareli.

4. According to the written report, on 29.07.2001 some hot talk took place between the informant and accused appellant namely Sitlu @ Ghisai Pasi. This hot talk took place on account of placing 'Jhakhar' on the path/way. The written report also indicates that on 30.07.2001 at about 08:00 AM son of the informant namely Ram Khelawan was going to ease himself and in the way i.e. in front of house of Chhabba Pasi, Sitlu @ Ghisai Pasi S/o Birbal, Naresh S/o Bharose, Deepak S/o Naresh and Chhabba S/o Bacchu resident of same vicinity hurled abuses upon Ram Khelawan, son of the informant, 2 CRLA No. 1015 of 2004 which was opposed by him and in response, accused-appellants assaulted Ram Khelawan who succumbed to injuries and also informant namely Vishwanath on hearing commotion reached the spot, where he was also assaulted, and he found his son in unconscious state. Ram Khelawan S/o of injured informant/Vishwanath died during treatment.

5. The Investigating Officer, after completing the investigation, submitted the charge sheet against the appellants under Sections 304, 323, 504, 506 IPC.

6. 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. 140 of 2002 and charges were framed against the appellants, which they denied and claimed trial.

7. In order to substantiate its case, prosecution examined as many as nine witnesses. Injured informant/Vishwanath/PW-1, who proved the facts of the case as also the FIR. Kandhai/PW-2 and Devideen/PW-3 were declared hostile by the trial Court. R.K. Mishra/PW-4, proved the injury report (Ext. Ka-2) of deceased Ram Khelawan. Dr. Asharam/PW-5, proved the injury report (Ext. Ka-3) of informant/Vishwanath. Constable Buddhilal/PW-6, proved the Chik FIR (Ext. Ka-4) and G.D. (Ext. Ka-5). Dr. A.R.Tripathi/PW-7, proved post mortem report (Ext. Ka-6) of deceased Ram Khelawan. H.C.P. Ramji Tiwari/PW-8, proved the site plan (Ext. Ka-7), recovery memo (Ext. Ka-8) and charge sheet (Ext. Ka-9). Sukku Rana/PW- 9, proved the inquest report (Ext. Ka-10), Sample (Ext. Ka-11), photographs of the deceased (Ext. Ka-12), letter to the CMO (Ext. Ka-13), letter to the R.I. ((Ext. Ka-14) and Challan of the body of the deceased (Ext. Ka-15). injured

8. 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.

9. 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.

10. It is to be noted that testimony of injured informant/Vishwanath/PW-1, has greater evidential value and unless compelling reasons exist, his statement 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 3 CRLA No. 1015 of 2004 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]).

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

12. In the aforesaid brief facts of the case, it is stated that the trial Court committed error of facts and law both in convicting the appellants for the offence under Section 304 Part-I as a bare perusal of the contents of the FIR, the basic story of the prosecution, would indicate that on account of previous hot talk between the informant and accused/Sitlu @ Ghisai Pasi i.e. on 29.07.2001, on 30.07.2001 the hot talk took place between the deceased and accused-appellants in which accused/appellants also hurled abuses, which the accused- was opposed by appellants assaulted the deceased and thus the incident occurred without premeditation of mind/on spur of moment and in the incident deceased sustained injuries. If the case of the prosecution taken on its face value, then in that eventuality, in the facts of the case the judgment of the trial Court is liable to be modified for the offence under Section 304 IPC Part-II and thereafter the benefit of Probation of Offenders Act, 1958 be extended to the accused-appellants, which is permissible under the law. the deceased and retaliation,

13. 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 also submitted that he is challenging the impugned judgment only with respect to the conviction and sentence for the offence under Section 304 Part-I IPC.

14. 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.

15. 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 24 years ago and there is no further criminal antecedent of the appellants. The delay in trial deprives the right of the appellant of speedy trial and they may be given benefit of first offender and they may be 4 CRLA No. 1015 of 2004 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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. 5 CRLA No. 1015 of 2004

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."

21. 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."