High Court · 2025 on 22 Jul 2025

Judgment

1. The accused-appellant/Vijay Kumar Mishra is present before this Court, who has been identified by Shri Shiv Shanker Singh, Advocate, whose Vakalatnama is on record.

2. Heard Anurudh Kumar Singh, learned counsel for the appellant, Shri Ajay Kumar Srivastava, learned A.G.A.-I for the State and Shri Rama Shanker Pandey, Advocate holding brief of Shri Ram Kushal Tiwari, learned counsel for the private-respondent.

3. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been filed by the accused/appellant namely Vijay Kumar Mishra against the judgment and order 18.11.2006 passed by the Additional District & Sessions Judge, Court No. 4, Sultanpur, in Session Trial No. 147 of 2004, under Sections 304/304, 504 IPC, Police Station - Peeparpur, District - Sultanpur, convicting and sentencing the accused/appellant under Section 304 Part II IPC for a period of eight years of rigorous imprisonment and a fine of Rs. 10,000/-, with default stipulation.

4. Brief facts of the case are to the effect that informant/Pramod Kumar (P.W.2) S/o Late Abhimanyu Prasad R/o Khanapur, P.S. Peeparpur, District - Sultanpur submitted a written report dated

02.02.2004 (Ex.Ka.1) and based upon the same an FIR (Ex.Ka.5) was lodged, registered as Case Crime No. 50 of 2004, under Section 304/34 & 504 IPC at Police Station - Page No.2 of 2 Peeparpur, District - Sultanpur. According to the FIR dated

02.02.2004 on 01.01.2004 at about 03:30 p.m., Vijay Kumar Mishra and Ajay Kumar Mishra alias Pappu, sons of Ramkripal Mishra assaulted, the father of the informant namely Abhimanyu Prasad Mishra ,who succumbed to head injury

sustained. This FIR indicates that the accused made complaint to the deceased that your son has taken out the valve of bicycle and response the deceased scolded the informant and thereafter informant entered in his house and the accused presumed that they have been scolded and therefore, an altercation/scuffle took place and the accused assaulted the deceased with fists and the deceased was also assaulted by Vijay Kumar Mishra with fawda which was provided by accused Smt. Saroja Devi W/o accused-appellant Vijay Kumar Mishra. By this assault, the deceased sustained injuries. On the place of incident, Harish Kumar S/o Jnardhan Prasad Mishra and Smt. Vimla Devi W/o Vijay Kumar Mishra appeared and scolded the accused who hurled abuses and fled away to their residence. The deceased was unconscious on account of injuries sustained, therefore, he was treated as District Hospital, Sultanpur from where he was referred to Medical College, Lucknow where he succumbed to head injury at about 11:00 pm.

5. The injures were examined by Dr. A.P. Mishra (P.W.5) on

31.01.2004 at about 04:50 p.m. at District Hospital, Sultanpur. The injury report was placed on record. According to the statement of Dr. A.P. Mishra, the injuries sustained could be caused by fawda, the weapon used indicated in the FIR itself.

6. The post-mortem of the deceased was conducted by Dr. S.N.S. Yadav (P.W.6). He proved the post-mortem report. According to the post-mortem report (Ex.Ka.-9) and statement of Dr. S.N.S. Yadav (P.W.6) temporal bone and perital bone of the deceased were fractured and this injury could be caused by fawda. Page No.3 of 3

7. Other documents such as panchanama/inquest report (Ex.Ka.2), recovery memo of fawda (Ex.Ka.10), photograph of body of the deceased (Ex.Ka.14), letter of civil surgeon (Ex.Ka.15), were also placed on record by I.O. along with charge-sheet against the accused. Weapon used in the crime i.e. fawda (Ex.Ka.1) was placed before the trial Court.

8. 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 District Hospital, Sultanpur and charges were framed under Sections 304 and 504 IPC against the accused to which he denied and claimed trial.

9. In order to substantiate its case, prosecution examined Harish Kumar Mishra (P.W.1), Pramod Kumar Mishra/Informant (P.W.2), I.O. Vijay Singh (P.W.3), Head Constable Virendra Pratap Dubey (P.W.4), Dr. A.P. Mishra (P.W.5), Dr. S.N.S. Yadav (P.W.6), I.O. Pannal Lal (P.W.7) and SI Vrishketu Rai (P.W.8).

10. It would be apt to indicate that the factual aspect of the case including the version of FIR was proved by the witnesses namely Harish Kumar Mishra (P.W.1), Pramod Kumar Mishra/Informant (P.W.2), Vijay Singh (P.W.3) and Virendra Pratap Dubey (P.W.4).

11. The defense examined Taufiq Hussain (D.W.1), who could not impeach the prosecution case.

12. After closing of the evidence, statements of accused/ appellant were recorded by the trial court 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.

13. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as Page No.4 of 4 well as documentary, including the statement of the witnesses of the fact, which could not be impeached, and the documents viz. injury report and post-mortem report passed the judgment of conviction against the accused/appellant.

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

15. Learned counsel for the appellant submits that the accused- appellant has 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-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').

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-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.

18. 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. Page No.5 of 5

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-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.

21. 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 is upon the discretion of the Court to grant benefits in either of the Acts.

22. 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 21 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 Page No.6 of 6 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-appellant.

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-appellant has been rightly convicted.

24. 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.

25. 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.

26. 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.

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 Page No.7 of 7 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."

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, Page No.8 of 8 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