Shiv Kumar State of U.P v. …

1. Heard Shri Satyendra Singh, holding brief of Shri Manoj Kumar Singh, learned counsel for the appellants, Shri Ajay Kumar Srivastava, learned A.G.A.-I for the State and perused the trial court record. 2. Since both the appeals have been filed impeaching the same judgment and order and both the appellants have been convicted and sentenced for the same offence and for the same quantum of punishment, therefore, both the appeals are being heard and decided with a common judgment. 3. These Criminal Appeals under Section 374 (2) Cr.P.C. have been filed on behalf of the appellants Shiv Kumar and Onkar Nath against the judgment and order 13.04.2017, passed by Additional District and 2 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 Sessions Judge, Court No. 5, Bahraich in Session Trial No.113 of 2004, arising out of Case Crime No.58 of 2003, Police Station - Boundi, District - Bahraich convicting the appellants under Sections 308 I.P.C. and sentencing them to undergo Five Years' Rigorous Imprisonment with a fine of Rs.20,000/-. In case of default in depositing the fine, they have to undergo further One Year's Simple Imprisonment. The case of prosecution, in nutshell, as set up in the written report 4. submitted on 27.03.2003 at Police Station-Boundi, District-Bahraich by the informant Umesh Chandra, son of Badri Prasad is to the effect that on 27.03.2003, at about 6.30 A.M. Onkar and Shiv Kumar, sons of Ramphal Tamoli assaulted the brother of the informant namely Murari Lal while he was on the way to Palesar. The written report further indicates that Onkar was armed with Banka and Shiv Kumar was armed with country made pistol (Katta) and it further indicates that the informant and his wife namely Bandana were the eye witnesses of the incident. The written report further indicates that Murari Lal sustained firearm injury as also the injury of Banka and he was admitted for treatment at District Hospital, Bahraich.

5. Based upon the written report, the F.I.R. (Ext.-1), Case Crime No.58/2003, under Section 308 I.P.C., at Police Station-Boundi, District- Bahraich was registered against the accused-appellants Onkar Nath and Shiv Kumar. The Investigating Officer (in short "I.O."), after completing the

6. investigation, submitted charge sheet against the accused/appellants. After submission of charge sheet, the Magistrate concerned took 7. cognizance and the said case was committed to the Court of Session, where it was registered as S.T. No.113/2004 and the trial court, based on the evidence available on record, framed charges for the offence under Section 308 I.P.C. against the appellants, which they denied and claimed trial.

8. In order to prove its case, the prosecution examined informant Umesh Chandra (PW-1), injured Murari Lal (PW-2), Parmeshwar (PW- 3), Shiv Sahai Singh-Pharmacist (PW-4). PW-1 and PW-2 proved the prosecution story as narrated in the F.I.R. The injury report was proved by PW-4 Pharmacist Shiv Sahay 9. Singh. According to the injury report, the injured Murari Lal (PW-2) sustained following injuries :- "1-Incised wound of right fore arm & hand 23 cmx7cm x bone deep red fresh bleeding seen advise x-ray right hand with fore arm Ap/Lt. 2-Incised wound 3Cmx1.5Cm over darsum of right thumb. Redness fresh bleeding seen advise x-ray(R) thumb AP/Lt. 3 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 3- Multiple incised wound over(Rt) & left side of face neck & posterior skull size between 2Cm to 6 Cm x 1cm to 3 Cm. M-&bone deep red fresh, bleeding seen, advise x-ray skull & neck AP/Lt. 4-Multiple incised wound over left fore arm & hand side between 2.4 Cm to 4.5 Cm x 1 Cm to 3 Cm. M & bone deep advise x-ray (Lt) fore arm and hand AP/Lt. 5-Incised wound 5 Cmx 3 Cm over Rt side of waist cavity deep because intra abd. Contents are coming out advised x-ray abdomen erect positive red fresh, bleeding seen admitted G.C, low & grave. Opinion All injuries (1) to (5) sharp object. Fresh all injuries KUO for nature. Opinion for nature will be given after x-ray by Radiologist. Also referred to surgeon & Orthopedic surgeon."

10. The discharge summary (Ext.Ka-37) and (Ext.-Ka-38) about the medical history of injured Murari Lal (PW-2) which are available on record are extracted herein under :- (a).Name Murari Lal Age/Sex 30 Yrs/M Address Vill Kanera P/S Baundi Distt. Bahraich. DỌA: 27.03.03 DOO:--DOD: 24.04.03 Final Diagnosis: Fire arm injury with head injury with IInd Clinical Summary : This 30 Yrs young male is admitted to metacarpal (L) with Ipsi lateral with radius with(L) shaft of ulna. Operative Details: Over side due to head fire arm injury abdomen with head injury do exploration multiple Ibal perfections. Over feet proximal to Ileocaucal retinue over was found. So Ibeastony was dearm Now the pt is lung discharged in satisfactory Cardial after nurosurgical clear. I.) Date II) Operation III) Findings Investigations Biochemical Date Haemogram Blood sugar KFT LFT Others Hb TLC DLC Hb TLC DLC Urea/Creat Bll Ot/Pt Alk. Phos Urea/Creat Bll Ot/Pt Alk. Phos Hb TLC DLC Urea/Creat Bll Ot/Pt Alk.Phos Radiological: X-ray (A) metacarpal & LE of radius & (left) shaft of ulna USG CT Scan Head-Multiple Contusions Others Histopathology Advice: 15 दि(cid:2)न बा(cid:2) मंगलवार व शु्ቅवार को न्यूरोस्ቌ(cid:23)री आኘ᭗(cid:27) OPD में दि(cid:2)खायें। (b). Name Murari Lal Age/Sex 30 Yrs/M Address Vill Kanera P/S Baundi Distt. Bahraich. DOA: 24.07.03 DOO: 2-8-03 DOD: 11-08-03 Final Diagnosis: FTC pf Fire arm injury abd with sliestomy 4 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 Clinical Summary: Above mentioned Pt admitted to over side as a FTC case of Fire anm injury abd, With loop ileastomy Operative Details: An eleptical incision given pr;pca; sode & mobilisd the loop and closed. I) Date: 2-8-03 II) Operation Ilesatomy closore III) Findings in tow eyes and sicl 2-0 incisiaral size closed in layer. Pt. Is being discharged in satisfactory condition. Investigations Biochemical: Date 26-7-03 Haemogram Blood sugar Hb 10.5 TLC DLC 01-08-03 Hb Hb TLC DLC Hb TLC DLC Urea/38.0 mg/dl Creat 0.9 Mg/dl Bll Ot/Pt Alk. Phos Urea/Creat Urea/Creat Bll Ot/Pt Alk. Phos Bll Ot/Pt Alk.Phos KFT LFT Others Radiological: Chest PA view X-ray WNL Distal Loopgram-Normal studg (Patent distal loops) USG CT Scan Others Histopathology Advice: 15 दि(cid:2)न बा(cid:2) मंगलवार के दि(cid:2)न 9-12 के बीच स्ቌ(cid:23)री OPD में दि(cid:2)खायें।"

11. It would be apt to indicate here that it is well established that the evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he/she has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein [Vide: State of 5 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 M.P. vs. Mansingh, (2003) 10 SCC 414; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; 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; Balu Sudam Khalde and another vs. State of Maharashtra, 2023 SCC OnLine SC 355]. The other documentary evidence was proved by other formal

12. witnesses.

13. After closing of the evidence, statement of accused/appellants under Section 313 Cr.P.C. was recorded by the trial court, after explaining the entire evidence and circumstances, in which appellants denied prosecution story and the entire prosecution story was said to be wrong and concocted.

14. 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. Feeling aggrieved and dissatisfied with the impugned judgment 15. and order of conviction, the appellants have preferred the present appeal.

16. 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. Learned counsel for accused-appellants submits that in view of the 17. 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 The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958'). The Trial Court did neither invoke the provisions of the Act, 1958 18. 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.

19. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality 6 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

20. 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. The accused-appellants have statutory right for claiming the 21. 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.

22. 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. 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.

23. 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 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 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.

24. 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. Learned AGA appearing for the State does not dispute the fact that 25. 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 7 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 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.

26. 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.

27. 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 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. Sections 3 and 4 of the Probation of Offenders Act, 1958 are

28. 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: 8 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 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."

29. 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."

1. Heard Shri Satyendra Singh, holding brief of Shri Manoj Kumar Singh, learned counsel for the appellants, Shri Ajay Kumar Srivastava, learned A.G.A.-I for the State and perused the trial court record. 2. Since both the appeals have been filed impeaching the same judgment and order and both the appellants have been convicted and sentenced for the same offence and for the same quantum of punishment, therefore, both the appeals are being heard and decided with a common judgment. 3. These Criminal Appeals under Section 374 (2) Cr.P.C. have been filed on behalf of the appellants Shiv Kumar and Onkar Nath against the judgment and order 13.04.2017, passed by Additional District and 2 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 Sessions Judge, Court No. 5, Bahraich in Session Trial No.113 of 2004, arising out of Case Crime No.58 of 2003, Police Station - Boundi, District - Bahraich convicting the appellants under Sections 308 I.P.C. and sentencing them to undergo Five Years' Rigorous Imprisonment with a fine of Rs.20,000/-. In case of default in depositing the fine, they have to undergo further One Year's Simple Imprisonment. The case of prosecution, in nutshell, as set up in the written report 4. submitted on 27.03.2003 at Police Station-Boundi, District-Bahraich by the informant Umesh Chandra, son of Badri Prasad is to the effect that on 27.03.2003, at about 6.30 A.M. Onkar and Shiv Kumar, sons of Ramphal Tamoli assaulted the brother of the informant namely Murari Lal while he was on the way to Palesar. The written report further indicates that Onkar was armed with Banka and Shiv Kumar was armed with country made pistol (Katta) and it further indicates that the informant and his wife namely Bandana were the eye witnesses of the incident. The written report further indicates that Murari Lal sustained firearm injury as also the injury of Banka and he was admitted for treatment at District Hospital, Bahraich.

5. Based upon the written report, the F.I.R. (Ext.-1), Case Crime No.58/2003, under Section 308 I.P.C., at Police Station-Boundi, District- Bahraich was registered against the accused-appellants Onkar Nath and Shiv Kumar. The Investigating Officer (in short "I.O."), after completing the

6. investigation, submitted charge sheet against the accused/appellants. After submission of charge sheet, the Magistrate concerned took 7. cognizance and the said case was committed to the Court of Session, where it was registered as S.T. No.113/2004 and the trial court, based on the evidence available on record, framed charges for the offence under Section 308 I.P.C. against the appellants, which they denied and claimed trial.

8. In order to prove its case, the prosecution examined informant Umesh Chandra (PW-1), injured Murari Lal (PW-2), Parmeshwar (PW- 3), Shiv Sahai Singh-Pharmacist (PW-4). PW-1 and PW-2 proved the prosecution story as narrated in the F.I.R. The injury report was proved by PW-4 Pharmacist Shiv Sahay 9. Singh. According to the injury report, the injured Murari Lal (PW-2) sustained following injuries :- "1-Incised wound of right fore arm & hand 23 cmx7cm x bone deep red fresh bleeding seen advise x-ray right hand with fore arm Ap/Lt. 2-Incised wound 3Cmx1.5Cm over darsum of right thumb. Redness fresh bleeding seen advise x-ray(R) thumb AP/Lt. 3 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 3- Multiple incised wound over(Rt) & left side of face neck & posterior skull size between 2Cm to 6 Cm x 1cm to 3 Cm. M-&bone deep red fresh, bleeding seen, advise x-ray skull & neck AP/Lt. 4-Multiple incised wound over left fore arm & hand side between 2.4 Cm to 4.5 Cm x 1 Cm to 3 Cm. M & bone deep advise x-ray (Lt) fore arm and hand AP/Lt. 5-Incised wound 5 Cmx 3 Cm over Rt side of waist cavity deep because intra abd. Contents are coming out advised x-ray abdomen erect positive red fresh, bleeding seen admitted G.C, low & grave. Opinion All injuries (1) to (5) sharp object. Fresh all injuries KUO for nature. Opinion for nature will be given after x-ray by Radiologist. Also referred to surgeon & Orthopedic surgeon."

10. The discharge summary (Ext.Ka-37) and (Ext.-Ka-38) about the medical history of injured Murari Lal (PW-2) which are available on record are extracted herein under :- (a).Name Murari Lal Age/Sex 30 Yrs/M Address Vill Kanera P/S Baundi Distt. Bahraich. DỌA: 27.03.03 DOO:--DOD: 24.04.03 Final Diagnosis: Fire arm injury with head injury with IInd Clinical Summary : This 30 Yrs young male is admitted to metacarpal (L) with Ipsi lateral with radius with(L) shaft of ulna. Operative Details: Over side due to head fire arm injury abdomen with head injury do exploration multiple Ibal perfections. Over feet proximal to Ileocaucal retinue over was found. So Ibeastony was dearm Now the pt is lung discharged in satisfactory Cardial after nurosurgical clear. I.) Date II) Operation III) Findings Investigations Biochemical Date Haemogram Blood sugar KFT LFT Others Hb TLC DLC Hb TLC DLC Urea/Creat Bll Ot/Pt Alk. Phos Urea/Creat Bll Ot/Pt Alk. Phos Hb TLC DLC Urea/Creat Bll Ot/Pt Alk.Phos Radiological: X-ray (A) metacarpal & LE of radius & (left) shaft of ulna USG CT Scan Head-Multiple Contusions Others Histopathology Advice: 15 दि(cid:2)न बा(cid:2) मंगलवार व शु्ቅवार को न्यूरोस्ቌ(cid:23)री आኘ᭗(cid:27) OPD में दि(cid:2)खायें। (b). Name Murari Lal Age/Sex 30 Yrs/M Address Vill Kanera P/S Baundi Distt. Bahraich. DOA: 24.07.03 DOO: 2-8-03 DOD: 11-08-03 Final Diagnosis: FTC pf Fire arm injury abd with sliestomy 4 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 Clinical Summary: Above mentioned Pt admitted to over side as a FTC case of Fire anm injury abd, With loop ileastomy Operative Details: An eleptical incision given pr;pca; sode & mobilisd the loop and closed. I) Date: 2-8-03 II) Operation Ilesatomy closore III) Findings in tow eyes and sicl 2-0 incisiaral size closed in layer. Pt. Is being discharged in satisfactory condition. Investigations Biochemical: Date 26-7-03 Haemogram Blood sugar Hb 10.5 TLC DLC 01-08-03 Hb Hb TLC DLC Hb TLC DLC Urea/38.0 mg/dl Creat 0.9 Mg/dl Bll Ot/Pt Alk. Phos Urea/Creat Urea/Creat Bll Ot/Pt Alk. Phos Bll Ot/Pt Alk.Phos KFT LFT Others Radiological: Chest PA view X-ray WNL Distal Loopgram-Normal studg (Patent distal loops) USG CT Scan Others Histopathology Advice: 15 दि(cid:2)न बा(cid:2) मंगलवार के दि(cid:2)न 9-12 के बीच स्ቌ(cid:23)री OPD में दि(cid:2)खायें।"

11. It would be apt to indicate here that it is well established that the evidence of an injured witness must be given due weightage as being an injured witness, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he/she has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein [Vide: State of 5 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 M.P. vs. Mansingh, (2003) 10 SCC 414; Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; 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; Balu Sudam Khalde and another vs. State of Maharashtra, 2023 SCC OnLine SC 355]. The other documentary evidence was proved by other formal

12. witnesses.

13. After closing of the evidence, statement of accused/appellants under Section 313 Cr.P.C. was recorded by the trial court, after explaining the entire evidence and circumstances, in which appellants denied prosecution story and the entire prosecution story was said to be wrong and concocted.

14. 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. Feeling aggrieved and dissatisfied with the impugned judgment 15. and order of conviction, the appellants have preferred the present appeal.

16. 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. Learned counsel for accused-appellants submits that in view of the 17. 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 The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958'). The Trial Court did neither invoke the provisions of the Act, 1958 18. 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.

19. Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality 6 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.

20. 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. The accused-appellants have statutory right for claiming the 21. 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.

22. 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. 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.

23. 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 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 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.

24. 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. Learned AGA appearing for the State does not dispute the fact that 25. 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 7 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 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.

26. 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.

27. 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 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. Sections 3 and 4 of the Probation of Offenders Act, 1958 are

28. 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: 8 Crl. No.671 of 2017 and Crl. Appeal No.688 of 2017 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."

29. 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."