State v. Ram Kripal Mishra and others), arising out of Case Crime No on 24 Jul 2025 — Criminal Appeal No. 579 of 2005

Judgment

1. Since both the appeals have arisen out of the same judgment and same crime number, therefore, both the appeals are being heard together and decided by a common judgment. However, the leading file is Criminal Appeal No.579 of 2005. Heard learned counsel for the appellants, learned A.G.A. for the

2. State and perused the record.

3. The instant criminal appeal under Section 374 (2) Cr.P.C. has been filed by the appellants impeaching the judgment and order dated

20.04.2005, passed by the Additional District and Sessions Judge, Court No.12, Faizabad (now Ayodhya) in Sessions Trial No.634 of 1997 (State Vs. Ram Kripal Mishra and others), arising out of Case Crime No.260/1996, under Sections 147, 323/149, 308/149, 504, 506 (2) I.P.C. at Police Station - Purakalandar, District - Faizabad (now Ayodhya), thereby convicting and sentencing the accused-appellants for the offence under Section 147, 323/149, 308/149 I.P.C. and to undergo Six Months' Rigorous Imprisonment; One Year's Rigorous Imprisonment; and Four Years' Rigorous Imprisonment respectively. All the sentences are to run concurrently. 2

4. At the very outset, it would be apt to mention that Criminal Appeal No.579 of 2005 has been filed by appellants Ram Kripal Mishra, Ram Gopal Mishra and Criminal Appeal No. 555 of 2005 has been filed by appellants Rajendra Upadhyay, Pawan Upadhyay, Arjun Upadhyay and Surendra Upadhyay. In Criminal Appeal No.555 of 2005, the appellant No.4-Surendra Upadhyay has died, as appears from the report of the Chief Judicial Magistrate, Faizabad/Ayodhya dated 10.09.2020, therefore, the appeal so far it relates to appellant No.4-Surendra Upadhyay has been abated vide order of this Court dated 24.11.2022. The order dated

24.11.2022 passed in Criminal Appeal No.555 of 2005 reads as under :- "Called on.

Sri Arun Kumar Pandey, learned counsel for the appellants and Sri Chandra Shekhar Pandey, learned Additional Government Advocate for the State are present. Vide report dated 25.09.2021, the office has reported that the Chief Judicial Magistrate, Faizabad in his report dated 10.09.2020 has informed that appellant no. 4, Surendra Upadhyay died on 08.04.2020. The statements of the witnesses, death certificate of appellant no. 4 are annexed alongwith the report of CJM, Faizabad. In view of the above, the present criminal appeal stands abated in respect of appellant no. 4, Surendra Upadhyay. On the request of learned counsel for the appellants, let the matter be listed after two weeks for argument."

5. The prosecution version, in nutshell, is to the effect that the complainant Anil Kumar, S/o Raj Narayan, R/o Village Subhangava, Police Station - Purakalandar, District - Faizabad/Ayodhya is an active worker of the Samajwadi Party. On 07.05.1996, at around 12.30 P.M. the complainant was going from village Masodha along with Dr. Ram Pratap Yadav, for election-related work. While enroute, they met Munnu Pal, resident of Lali Ka Purwa, Mauza Madhavpur, who invited them to his house for Tea and Water. As soon as they entered his house, Ram Kripal Mishra and Ram Gopal Mishra (sons of Jagmohan, residents of Lali Ka Purwa, Hamlet of Madhavpur, Police Station Pura Kalandar, District Faizabad), along with their relatives Rajendra Upadhyay, Surendra 3 Upadhyay, Pawan Upadhyay, and Arjun Upadhyay (all sons of Gaya Prasad, residents of Village Ganja, Police Station Pura Kalandar), arrived at the scene of occurrence armed with 'Lathi' and 'Dandas'. These persons hurled abuses and giving death threats at Munnu Pal and started a sudden assault. When Dr. Ram Pratap Yadav intervened and tried to dissuade them, the accused persons attacked him with 'Lathi' with the intention to kill. As a result of the assault, Dr. Ram Pratap sustained serious injuries and he fell down to earth and became unconscious.

6. Hearing the cries of the complainant, Munnu Pal, and his family members, several villagers gathered at the scene of occurrence. On being confronted by the villagers, the accused fled from the spot. Subsequently, the complainant and Munnu Pal transported Dr. Ram Pratap to the District Hospital, Faizabad/Ayodhya by jeep, where he was admitted and was medically examined and was treated. Dr. Ram Pratap had sustained grievous injuries on his head, and his condition was critical.

7. On the basis of the written report indicating the aforesaid incident, an F.I.R. (Ext.Ka-5) under Case Crime No.260/1996, under Sections 147, 323, 308, 504, 506 I.P.C. at Police Station - Purakalandar, District - Faizabad (now Ayodhya) was registered.

8. The Investigating Officer, after completing the investigation, submitted the charge sheet (Ext. Ka-7) against accused persons namely Ram Kripal Mishra, Ram Gopal Mishra, Rajendra Upadhyay, Surendra Upadhyay, Pawan Upadhyay, and Arjun Upadhyay under Sections 147, 323, 308, 504, 506 I.P.C.

9. After submission of the charge sheet before the Court of learned Magistrate the said case was committed to the Court of Sessions where it was registered as Sessions Trial No.634 of 1997 and charges were framed against the accused under Section 147, 323/149, 308/149, 504, 506(2) I.P.C. The accused denied the charges and claimed trial.

10. In order to prove its case, the prosecution examined informant Anil Kumar (PW-1), injured Dr. Ram Pratap Yadav (PW-2), Ram Milan (PW- 4 3), Ramwati (PW-4), Dr. A.K. Srivastava (PW-5), Dr. P. Nath (PW-6), Munnu Pal (PW-7), Ashok Kumar (PW-8), SI Ram Nagina Yadav (PW-9), SI Avinash Chandra Thakur (PW-10), were examined.

11. Injured Dr. Ram Pratap Yadav (PW-2) established the case of the prosecution. 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; Laxman Singh vs. State of Bihar (Now Jharkhand) (2021) 9 SCC 191 and Balu Sudam Khalde and another vs. State of Maharashtra, 2023 SCC OnLine SC 355.

12. After closing of the evidence, statement of accused-appellants under section 313 Cr.P.C. was recorded by the trial court explaining the entire evidence and other circumstances, in which the accused-appellants denied the prosecution story and stated that false evidence has been adduced against them. 13 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.

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

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

16. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused- 5 appellants 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').

17. 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,

18. 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.

19. 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.

20. 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.

21. 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. 6 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.

22. 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 in the year 1996 i.e. 29 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 appellants may be extended the benefit of Probation of Offenders Act, 1958 (herein after 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.

23. 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 has been rightly convicted.

24. Learned AGA appearing for the State does not dispute the fact that accused-appellants are the first time offenders 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.

25. 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.

26. After considering the arguments advanced by the parties and after perusal of the material available on record, this court finds that except the 7 part of 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.

27. 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." 8

28. 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."

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