Allahabad High Court
Daya Ram Yadav & Ors. vs State Of U.P. on 14 September, 2017
Bench: Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- CRIMINAL APPEAL No. - 1333 of 2011
Appellant :- Daya Ram Yadav & Ors.
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Upadhyay
Counsel for Respondent :- Govt. Advocate
Hon'ble Mrs. Rekha Dikshit,J.
Sri Ramakar Shukla has filed power on behalf of the appellant, which is taken on record.
This appeal has been filed against the judgment and order dated 25.7.2011 passed by Additional Sessions Judge/Ex-Cadre, Court No.2, Sultanpur in S.T. No. 133 of 2006 convicting the appellants under Sections 304(2)/34, 325/34, 323/34, IPC, P.S.Dhammaur, District Sultanpur and sentencing them under sections 304(2)/34 IPC to undergo seven-seven years imprisonment with a fine of Rs.2000/-each, under sections 325/34 IPC for one-one year imprisonment with a fine of Rs.1000/-each and further under section 323/34 IPC for 6-6 months imprisonment with a fine of Rs.500/-500/-each and in default of payment of fine further sentence of 3-3 months each imprisonment.
Heard Sri Ramakar Shukla,learned counsel appearing on behalf of the appellants and Sri U.C.Yadav, learned A.G.A.for the State.
At the outset, learned counsel for the appellants submits that he is not challenging the impugned judgment of conviction and, he is confining this appeal only with respect to order of sentence. In view of the aforesaid submission of learned counsel for the appellants, the appeal is dismissed so far it relates to judgment of conviction. Thus, the judgment of conviction passed by the learned court below is hereby upheld.
Now, coming to the order of sentence, it is submitted by learned counsel for the appellants that in the instant case, the appellants were convicted under Sections 304 (part two)/34, 325/34 & 323/34 of the I.P.C. It is further submitted that maximum sentence of ten years' imprisonment or fine prescribed for the offence under Section 304(part two) of the I.P.C. and whereas, under sections 323 & 325 of the I.P.C., the maximum sentence prescribed, are one and seven years' imprisonment respectively. It is submitted that under said circumstance, it is incumbent upon the trial court to release the appellants either under Section 4 of the Probation of Offenders Act, or under Section 360 of the Cr.P.C.. It is submitted that trial court is further bound to give special reason, if, it does not want to give benefit to the appellants either under Section 4 of the Probation of Offenders Act or under Section 360 of the Cr.P.C. It is submitted that admittedly, in the instant case, learned trial court has not given any special reason in the impugned order of sentence for not giving benefit to the appellant under Section 4 of the Probation of Offenders Act or under Section 360 of the Cr.P.C. Thus, the impugned order of sentence suffers from serious illegality being violative of section 361 of the Cr.P.C., hence the same cannot be sustained.
Learned counsel for the appellants has placed reliance on a judgment of Apex Court in Criminal Appeal No.143 of 1994 State of Karnataka vs. Muddappa reported in(1999 ) 5 SCC 732.
It is submitted that the appellants are entitled for the benefit mentioned in Section 4 of the Probation of Offenders Act and/or section 360 of the Cr.P.C., as they are not previous convicts and they are ready to furnish the bond prescribed under said sections. The appellants are already on bail, hence they need not surrender. The occurrence relates to the year 2006 and this appeal is pending since 2011. Learned counsel for the appellants further submitted that the appellants have already served about 3 months in jail.
Learned counsel appearing for the State and learned counsel for the informant after going through the impugned judgment has fairly stated that the special reason has not been assigned in the impugned order, as required under Section 361 of the Cr.P.C.
Having heard the submission, I have gone through the record of the case.
From perusal of impugned order of sentence, I find that the learned trial court has not given any special reason as prescribed under Section 361 of the Cr.P.C. as to why it has not given benefit of Section 360 of the Cr.P.C. and/or section 4 of the Probation of Offenders Act. Thus, on the face of it, I find that the order suffers from material illegality.
It is admitted position that the appellants have been convicted under Sections 304(part two), 323 & 325 of the I.P.C.. The maximum punishment under Section 304(part two) of the I.P.C. is ten years' imprisonment or fine, and maximum punishment under Section 323 of the I.P.C.is one year imprisonment with or without fine, whereas, under Section 325 of the I.P.C., the maximum punishment is seven years imprisonment with or without fine.
Under said circumstance, in my view the Probation of Offender Act and/or Section 360 of the Cr.P.C. apply in the case of appellants, as, the appellants are not previous convicts.
Considering the facts and circumstance of the case, I am of the opinion that in the interest of justice, the appellants deserve the benefit of Section 4 of the Probation of Offender Act. Instead of sentencing them under sections 304(2)/34 IPC to undergo seven-seven years imprisonment with a fine of Rs.2000/-each, under sections 325/34 IPC for one-one year imprisonment with a fine of Rs.1000/-each and further under section 323/34 IPC for 6-6 months imprisonment with a fine of Rs.500/-500/-each and in default of payment of fine further sentence of 3-3 months each imprisonment, they shall file two bonds of Rs.25,000/- coupled with personal bonds to the effect that they shall not commit any offence, shall be of good behaviour and shall maintain peace during the period of one year. If there is breach of any of the aforesaid conditions they will subject themselves to undergo sentences before the Magistrate as per rules. The bonds aforesaid be filed by the accused persons within two months from the date of judgment.
Accordingly, the order of sentence is modified to the above extent.
Hence, appeal is disposed of.
Let a certified copy of this order be sent to the Court concerned for compliance.
Order Date :- 14.9.2017
IA
