High Court · 2025 on 23 Jul 2025

Judgment

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

2. The instant Criminal Appeal under Section 374 read with Section 389 Cr.P.C. has been filed by the appellants, namely, Madan Pasi s/o Mulayam and Bhullan s/o Madan Pasi r/o Village- Jamua, P.S.- Ghunghter, District- Barabanki, challenging the judgment and order 16.09.2009 passed by the learned Additional Sessions Judge (Court No.10), Barabanki in S.T. No.323 of 2005, arising out of Case Crime No.95 of 2003, P.S. Ghunghter, District- Barabanki, convicting and sentencing the appellants to undergo ten years rigorous imprisonment with a fine of Rs.5000/- each under Section 304 Part-I/34 I.P.C. and in default of payment of fine to further undergo additional imprisonment of one year.

3. The case of the prosecution, in nutshell, is to the effect that based upon the written report of informant/Lallu Pasi s/o Meera Pasi, r/o Village- Jamua, P.S.- Ghunghter, District- Barabanki, who died subsequently on account of injuries sustained, NCR No.38 of 2003 was lodged at about 6:25 P.M. under Sections 323, 504 I.P.C. at P.S.- Ghunghter, District- Barabanki. Informant/injured Lallu Pasi was examined on 08.09.2023 at 4:45 P.M. at Primary Health Centre, Ghunghter. Page No.2 of 23 Injured/informant - Lallu Pasi was being treated in the village by some doctor, but ultimately on 12.09.2003 he died. Based upon the information of death of informant/Lallu Pasi, provided by his brother namely Haribaksh (P.W.1), the case was registered as Case Crime No.95 of 2003, under Sections 304, 323, 504 I.P.C.

4. Thereafter the Investigating Officer carried out the process of inquest and prepared the inquest report (Ex.Ka-2) and thereafter upon completion of the investigation, charge sheet (Ex.Ka-9) was filed along with other relevant documents including post- mortem report (Ex.Ka-13).

5. According to the written report submitted by informant/Lallu Pasi (deceased), the accused Madan Pasi and Bhullan s/o

Madan Pasi first hurled abuses and thereafter assaulted the deceased with lathi and danda, who was then saved by the villagers who rushed to the spot and interfered in the matter. The report further indicates that seven years old daughter of the accused was pushed to ground by some boy who was playing with the nephew of the informant along with other boys and for this reason the scuffle took place between the children and for the purposes of settlement of dispute, the informant rushed to the spot and at the same time, i.e. about 5:00 P.M. the acused also reached the spot and got infuriated as to why his nephew had pushed the daughter to the ground and hurled abuses and the accused also assaulted the informant with lathi and danda.

6. P.W.1- Haribaksh, according to the story of prosecution was an eye witness who supported the story of the prosecution, as indicated in the written report submitted by the deceased- Lallu Pasi. The relevant portion of statement of P.W.1 is extracted hereinunder. Page No.3 of 23 "इस संबंध में अभि(cid:11)योजन पक्ष की तरफ से प्रस्तुत गवाह पी०डब्लू०-1 हरिरबख्श पुत्र महाबीर मृतक का (cid:11)ाई है उसके अनुसार घटना लग(cid:11)ग 4 वर्ष0 पूव0 की है शाम 5 बजे का समय था वह अपने खेत में जानवरों का चारा काटने गया था उसका (cid:11)ाई खेत में पानी लगाये हुए था। बाग में लड़के बकरी चरा रहे थे उसका लड़का रामप्रसाद वहीं बकरी चरा रहा था। मदन पासी की लड़की (cid:11)ी बकरी चरा रही थी उनका लड़का रामप्रसाद जामुन के पेड़ पर चढ़कर खेल रहा था और मदन की लड़की वहीं खेल रही थी। फूलमती को किकसी ने धक्का दे किदया जिजस पर वह पानी में किगर गई इसके कारण लड़के आपस में मारपीट करने लगे। उसका (cid:11)ाई लल्लू लड़कों को छुड़ाने और मदन के लड़के अखिखलेश को डाँटते हुए एक चाटा मार किदया तब मदन की लड़की जोर जोर से चिचल्लाने लगी त(cid:11)ी मदन, (cid:11)ुल्लन वहां पर जो उसके गांव के पड़ोसी हैं लाठी डन्डा लेकर आ गये मौके पर सरपंच भिशवराम यादव (cid:11)ी पहुंच गये। भिशवराम यादव के खेत में किपपरकिमन्ट लगी थी उसी खेत में उसके (cid:11)ाई लल्लू को मदन, (cid:11)ुल्लन ने लाठी डन्डा से मारा पीटा। शोर पर वह तथा उसकी पत्नी माया देवी व पुत्री सुशीला देवी मौके पर पहुंच गई और बीच बचाव किकया। यहाँ से वह अपने (cid:11)ाई को साथ ले जाकर इस घटना की तहरीर रिरपोट0 एक आदमी से थाने के बाहर बोलकर खिलखाई तथा थाने पर ले जाकर किदया रिरपोट0 प्रदश0 क-1 को उसने साकिबत किकया।"

7. 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.323 of 2005 and charges for the offence u/s 304/34, 323/34, 504 I.P.C. were framed against the appellants, which they denied and claimed trial.

8. Before the trial court eye-witness Haribaksh (P.W.1) established the case of the prosecution as indicated in the FIR, Maya Devi w/o Haribaksh (P.W.2), Sushila Devi d/o Haribaksh (P.W.3) also supported the prosecution story. Formal witnesses, namely, S.I. Ramnaresh Yadav (P.W.4), Constable Ramchandra (P.W.5), Dr. A.C. Dwivedi (P.W.6) and Dr.R.C. Bhatt (P.W.7) proved the relevant documentary evidence.

9. That after closing of the evidence, statements of accused/ appellants under Section 313 Cr.P.C. was recorded 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. Page No.4 of 23

10. 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.

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

12. 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 submission in the appeal only with respect to the order of conviction and sentence for the offence under Section 304 Part-I I.P.C. for the reasons that the trial court committed error in convicting the accused for the offence under Section 304 I.P.C. as from bare perusal of prosecution case including the statement(s) of witnesses of fact it is apparent that the deceased- Lallu Pasi sustained injuries in the incident which occurred on spur of momemt without premeditation of mind in heat of passion and, therefore, the trial court ought to have convicted the accused- appellants for the offence under Section 304 Part-II I.P.C.

13. Learned counsel for accused-appellants submits that in view of the aforesaid facts and circumstances, including the fact that the accused-appellants have not been convicted previously for any offence, 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') after convicting for the offence under Section 304 Part-II I.P.C. and in not doing so, the trial court erred in law and fact both and which may be done by this Court. Page No.5 of 23

14. 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 on the aforesaid and for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.

15. 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.

16. 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.

17. 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.

18. 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. Page No.6 of 23 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.

19. Learned counsel for the appellants further submitted that he does not want to press the appeal on merits to the extent aforesaid. He has submitted that the incident took place 22 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 they may be 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 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.

20. 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.

21. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellants are 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-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.

22. 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.

23. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court Page No.7 of 23 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.

24. 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 Page No.8 of 23 which the offender is likely to live during the period for which he enters into the bond."

25. 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."

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