Allahabad High Court
Ram Pher And 5 Others vs State Of U.P. on 16 June, 2022
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Judgment reserved on 27.04.2022
Judgment delivered on 16.06.2022
Court No. - 27
Case :- CRIMINAL APPEAL No. - 1697 of 2002
Appellant :- Ram Pher And 5 Others
Respondent :- State of U.P.
Counsel for Appellant :- R.P. Maurya,Rakesh Pratap Singh
Counsel for Respondent :- Govt.Advocate
Hon'ble Rajeev Singh,J.
1. Heard Mr. Rakesh Pratap Singh, learned counsel for the appellants as well as Mr. Sudhir Upadhyay, learned A.G.A. for the State and perused the lower court record.
2. The present appeal has been preferred against the judgment and order dated 08.11.2002 passed by X Additional Sessions Judge, Faizabad in Session Trial No.4 of 1995 (State vs. Ram Pher & Others) convicting the accused-appellants under Sections 147, 148, 323, 452, 307/149 I.P.C. in Case Crime No.129 of 1993 related to Police Station Jalalpur, District Faizabad and sentencing for a period of six months of simple imprisonment to the appellant Nos.1 to 5 under Section 147 I.P.C. and a month of simple imprisonment to the appellant No.6 under Section 148 I.P.C.; for a period of three years of rigorous imprisonment with a fine of Rs.2,000/- to each of the appellants under Sections 307/149 I.P.C., in case of default in payment of fine, additional six months of rigorous imprisonment; and for a period of two years of rigorous imprisonment with a fine of Rs.1,000/- to each of the appellants under Section 452 I.P.C., in case of default in payment of fine, additional three months of rigorous imprisonment. It was directed that all the sentences would run concurrently.
3. It is evident from the record that during the pendency of the appeal, appellant No.1, namely, Ram Pher S/o Ganpat, appellant No.2, namely Jawahir S/o Ram Pher and appellant No.3, namely, Vijay S/o Baleshwar had died and the appeal in respect to these appellants was abated on 29.03.2022.
4. Learned counsel for the accused-appellants has submitted that the appellant No.4, namely, Budhiram is aged more than 62 years, appellant No.5, namely, Avadesh is aged about 50 years and appellant No.6, namely, Satya Narayan is aged about 52 years. The alleged incident was taken place in the year of 1993, about 30 years ago, and no any adverse material is found against the appellants. He further submitted that the accused-appellants have not been convicted previously for any offence and they are the first time offenders and the appellant Nos.4, 5 & 6 have already served out the sentence for the period of about 70 days, 38 days and 38 days respectively. The learned counsel at the outset submitted that he is not challenging the impugned judgment and order of conviction and he is confining his submission in the appeal only with respect to the order of sentence.
5. In view of the aforesaid submission of learned counsel for the accused-appellant, the appeal is dismissed so far as it relates to the impugned judgment and order of conviction passed by the learned Trial Court. The impugned judgment and order of conviction passed by the learned Trial Court is hereby, upheld.
6. Learned counsel for accused-appellants has submitted that in view of the aforesaid facts and circumstances including the fact that the accused-appellant have not been convicted previously for any offence, the trial court ought to have invoked the provisions of Section 4 of The Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').
7. 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.
8. Learned counsel for the accused-appellants has submitted 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.
9. 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.
10. 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.
11. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellants are first time offenders and were not previously convicted in any other case. He also submitted that in view of the express 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.
12. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, 1958, this appeal is, accordingly, dismissed by upholding the conviction of the accused-appellant. However, they are granted the benefit of Section 4 of the Act, 1958. As the appeal has already been abated in relation to the appellant Nos.1, 2 & 3, and the accused-appellant Nos.4, 5 & 6, namely, Budhiram, Avadhesh and Satya Narayan are on bail, therefore, the accused-appellant Nos.4, 5 & 6 shall file fresh personal bonds to the tune of Rs.20,000/- and they shall keep peace in the society and shall not commit any such offence in future. These bonds shall be for one year. In case of breach of any such conditions, the accused-appellants will subject themselves to undergo the sentences before the Trial Court as per law. The accused-appellants shall file the bonds within a period of one month from today.
13. Let the copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 16.06.2022
S. Shivhare
