High Court · 2025 on 18 Jul 2025

Judgment

1. Supplementary affidavit filed by the State is taken on record, according to which, the appellant has no criminal antecedents.

2. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material on record.

3. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been moved on behalf of the appellant namely Chandra Jeet Singh S/o Ram Shankar Singh, against the judgment and order

20.01.2004 passed by the learned Additional Sessions Judge/Fast Track Court No.01, Gonda in Session Trial No. 51 of 1988, arising out of Case Crime No.77 of 1987, P.S. Kotwali City, Disrict- Gonda, convicting and sentencing the appellant and seven others to undergo one year Rigorous Imprisonment (in short “R.I.”) under Section 147 I.P.C., to undergo one year R.I. under Section 323/149 I.P.C. and under Section 452 IPC to undergo three years R.I. and fine of Rs. 500.00/- each and in default of payment of fine, further to undergo one month R.I. All the sentences were ordered to run concurrently.

4. Prosecution case, in brief, is that on 30.01.1987 at about 07:00 PM Gomti Singh, brother-in-law/Jeth of informant-Malti Singh 2 alongwith Chandrajeet Singh S/o Ram Shankar, Chhedi S/o Sarjoo, Prem Shankar S/o Piyare, Sangam Lal S/o Dularey, Ramu S/o Rama Shankar, Sachhoo Yadav S/o Matai Aheer, Fakirey S/o Ram Harakh, Keshram S/o Barsati, Sachhoo Badhai S/o Manorath, being annoyed as he was opposed with regard to construction of house over the land of the informant and some hot talk took place, the accused assaulted Hawaldar Singh, son-in-law of the informant and one Irfaan. Accused also assaulted Tara Singh, sister-in-law/Jethani and Baby Singh, niece of informant, who tried to interfere in the matter. On hue and cry, villagers interfered in the matter and therefore accused fled away. In the incident, Hawaldar Singh, son- in-law of informant, Irfaan, Tara Singh, sister-in-law/Jethani of informant and Baby Singh, niece of informant, sustained injuries.

On written report (Ext. Ka-1), the FIR (Ext. Ka-7) was lodged on

30.01.1987 at about 23:50 hours as Case Crime No.77 of 1987 against Gomti Singh, Chandrajeet, Chhedi, Prem Shankar, Sangamlal, Ramu, Sachhoo, Fakirey, Keshram and Sachhoo under Sections 147, 452, 323, 308, 427 IPC. Injured(s), named above, were medically examined on 31.01.1987 at District Hospital, Gonda.

5. The Investigating Officer (in short 'I.O.'), after completing the investigation, prepared the site plan (Ext. Ka-14) and submitted the charge sheet (Ext. Ka-16) against the accused, named above, under Sections 147, 452, 323, 308, 427 I.P.C.

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 S.T. No. 51 of 1988 and charges were framed under Sections 147, 452/149, 307/149 I.P.C. against the accused namely Gomti Singh, Chandrajeet Singh, Chhedi, Prem Shankar, Ramu, Sachhoo, Keshram, Sangam Lal, Sachhoo and Fakirey, which were denied and trial was claimed. 3

7. In order to substantiate its case, prosecution examined as many as six witnesses Injured-Smt. Tara Singh (P.W.-1), Injured-Baby Singh (P.W.-2), Prabhunath (P.W.-3), Injured/Informant-Smt. Malti Singh (P.W.-4), Dr. Vijaypal Singh (P.W.-5), who proved the injury report(s) (Ext. Ka-2 to 6) of the injured persons and R.N.Bhagat, Investigating Officer (P.W.-6).

8. Injured-Smt. Tara Singh (P.W.-1), Injured-Baby Singh (P.W.-2), Injured/Informant-Smt. Malti Singh (P.W.-4) proved the story of the prosecution.

9. It is to be noted that the evidence/testimony of the injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly as observed by the Hon'ble Apex Court in the case(s) of State of M.P. vs. Mansingh (2003) 10 SCC 414; Abdul Sayeed vs. State of M.P. (2010) 10 SCC 259; State of U.P. vs. Naresh; (2011) 4 SCC 324 and Laxman Singh vs. State of Bihar (Now Jharkhand) (2021) 9 SCC 191; Balu Sudam Khalde And Another vs. State of Maharashtra, 2023 SCC OnLine 355.

10. It is to be noted that on account of death of accused Gomti Singh and Keshram during trial, the trial Court proceeded against remaining accused and case was abated for these accused.

11. That after closing of the evidence, statements of accused/appellant as well as co-accused under section 313 Cr.P.C., were recorded by the trial court after explaining the entire evidence and other circumstances, in which the appellant denied the prosecution story and the entire prosecution story was said to be wrong and concocted.

12. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as well as 4 documentary, found the accused/appellant guilty and convicted them under Sections 147, 323/149, 452 I.P.C.

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

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

15. Learned counsel for accused-appellant submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellant has 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').

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-appellant. 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-appellant 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 5 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-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.

20. 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 appellants submitted that it is upon the discretion of the Court to grant benefits in either of the Acts.

21. 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 27 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 appellant 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. 6

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-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.

24. 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.

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 appellant 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 7 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 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 8 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 vs