Samar Bahadur Singh And Ors. … v. State of U.P on 14 Nov 2025

Judgment

2. HON'BLE SAURABH LAVANIA, J. Heard learned counsel for the parties and perused the record. The instant Criminal Appeal under Section 374 (2), Cr.P.C. has been filed by the appellants namely Samar Bahadur Singh s/o Late Bramha Singh, Pintoo Singh s/o Samar Bahadur Singh and Sonu Singh s/o Sarvjeet Singh all R/o Village- Palia Pratap Shah, Police Station- Inayat Nagar, Tehsil- Milkipur, District- Ayodhya challenging the judgment and order 24.12.2010 passed by Additional Sessions Judge/F.T.C.-2, Faizabad now Ayodhya in Session Trial No. 406/2008, arising out of Crime No. 659/2007, under Sections- 323, 504, 506, 452 IPC and Section 3(1)(X) SC/ST Act, Police Station- Inayat Nagar, District- Faizabad now Ayodhya, thereby convicting and sentencing the appellants under Section under Section 323/34 IPC to undergo six month's simple imprisonment alongwith fine of Rs. 500/- each and in default of 2 CRIMINAL APPEAL No. - 95 of 2011 payment of fine one month's further simple imprisonment and under Section 3(1)(X) SC/ST Act to undergo two years' simple imprisonment alongwith fine of Rs. 2000/- each and default of payment of fine further three months' simple imprisonment. All the sentences were ordered to run concurrently.

3. The case of the prosecution as appears from the record, in nutshell, is to the effect that at the time of incident, as indicated in written report (Ext.Ka.-1) i.e. on 08.12.2007 at about 07.30 P.M. the informant/Ramdeen, an employee of Saadhan Sahakari Samiti Ltd., Rewana Samiti, was present at his house and accused Samar Bahadur Singh, Pintoo Singh, Sonu Singh and Rahul Singh came there and demanded fertilizers from him and in response, informant/Ramdeen stated that fertilizers would be provided on Tuesday. Upon this, the accused hurled abuses and on being opposed entered the house of the informant/Ramdeen and

assaulted the informant and his wife namely Smt. Shivpati and his daughters namely Poonam and Km. Deepa.

4. The written report (Ext.Ka.-1) of the incident was given on

09.12.2017 at about 8.55 P.M. at Police Station- Inayat Nagar, District- Faizabad now Ayodhya and based upon the same, the FIR (Ext.Ka.-8) of the incident was registered as Case Crime No. 659 of 2007, under Section(s) 323, 504, 506, 452 IPC and Section- 3(1)(X) SC/ST Act.

5. Thereafter on 10.12.2007, the injured(s) namely Km. Deepa, Smt. Shivpati and Poonam were medically examined by the doctor concerned namely R.C. Srivastava at about 10.00 A.M., 11.00 A.M. and 11.30 A.M., respectively, and upon due medication examination, the doctor concerned found injuries over the body of injured(s), who opined that all the injuries were simple in nature.

6. Thereafter, the Investigating Officers (in short "IOs") namely Gulab Chandra Arya and Sanjay Singh (then Circle Officer(s), 3 CRIMINAL APPEAL No. - 95 of 2011 Milkipur) investigated the matter. During investigation, the site plan (Ext.Ka.-10) was prepared and the statements of witnesses of prosecution were recorded. Upon completion of investigation, the charge sheet (Ext.Ka.-3) was filed against the accused Samar Bahadur Singh, Pintoo Singh and Sonu Singh and charge sheet (Ext.Ka.-4) was filed against accused Rahul Singh. Alongwith the charge sheet(s), the documentary evidence including the injury report(s) of the injured(s) named above were filed.

7. The Magistrate concerned thereafter took cognizance and committed the case to the Court of Sessions, where it was registered as Sessions Trial No. 406 of 2008 and charges were framed on 09.09.2008 against the accused Samar Bahadur Singh, Pintoo Singh and Sonu Singh under Sections- 323/34, 504, 506, 452 IPC and Section- 3(1)(X) SC/ST Act and charges were also framed against the accused Rahul Singh on 11.06.2009, under Sections- 323/34, 504, 506, 452 IPC and Section- 3(1)(X) SC/ST Act.

8. The prosecution thereafter to establish its case examined as many as eight witnesses. Informant/Ramdeen (PW-1), Injured/Shivpati (PW-2), Injured/Poonam (PW-3), Injured/Deepa (PW-4), Nokhe Lal (PW-5) proved the story of prosecution as indicated in the FIR. Sub-Inspector Arvind Kumar Yadav (PW-6), Ram Naresh Yadav (PW-7) and Head Constable Suresh Saroj (PW-8) were examined as formal witnesses. Witnesses or prosecution proved the documentary evidence, which includes written report, FIR, charge sheet(s), injury report(s) etc.

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 4 CRIMINAL APPEAL No. - 95 of 2011 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.

10. That after closing of the evidence, statements of accused/ appellants under section 313 Cr.P.C. were 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.

11. It would be apt to indicate here that in the FIR and also in the charge sheet, specific allegations related to casteist remarks have not been indicated.

12. 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 him as above.

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

14. 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 conviction and sentence for the offence under SC/ST Act for the reason that the same is not made out, as to establish the offence under SC/ST Act, no independent witness was produced.

15. 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 invoked the provisions of 5 CRIMINAL APPEAL No. - 95 of 2011 The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958'), after acquitting the appellants for the offence under Section 3(1)10 of SC/ST Act, which may be done by this Court.

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-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, 1958.

17. 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.

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 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-appellants 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 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 6 CRIMINAL APPEAL No. - 95 of 2011 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.

21. 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 18 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 (hereinafter referred as the ‘Act of 1958’). He further submitted that appellants are the first time offenders 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.

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-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.

24. 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.

25. After considering the arguments advanced by the parties and after perusal of the material available on record, this Court finds that 7 CRIMINAL APPEAL No. - 95 of 2011 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.

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 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 CRIMINAL APPEAL No. - 95 of 2011

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 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