Allahabad High Court
Arvind And 3 Ors. vs State Of U.P. on 9 September, 2022
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 12
Case :- CRIMINAL APPEAL No. - 709 of 2005
Appellant :- Arvind And 3 Ors.
Respondent :- State of U.P.
Counsel for Appellant :- Ashok Kumar Verma,Ajai Kumar Singh,Neelam Verma,Pradeep Kumar Sen,Sanjive Kumar Tripathi
Counsel for Respondent :- Govt.Advocate
Hon'ble Narendra Kumar Johari,J.
1. Present criminal appeal has been filed by the accused-appellants-Arvind, Jagga, Raju @ Ramu and Brijlal @ Dhanna under Section 374 (2) Cr.P.C. against judgment of conviction and order of sentence dated 25.05.2005, passed by learned Additional Sessions Judge/F.T.C. Court No.2, Lucknow in Session Trial No.453 of 2003, Case Crime No.4 of 2001, under Section 323 IPC Police Station Cantt, District Lucknow. By the impugned judgment and order, the appellants were convicted by the trial court for the offence under Section 323 IPC and sentenced them to undergo for 01 year's Simple Imprisonment with a fine of Rs.1000/-each. In default stipulation, they have to undergo additional imprisonment for two months.
2. Learned counsel for the appellants has submitted that appellants have wrongly been implicated in the case. The injuries are simple in nature, which are fabricated. Learned trial court has wrongly convicted the appellants for the offence charged. It is further submitted that the appellants are not challenging the conviction, rather they are challenging the order so far it relates to the sentencing of the appellants. There is no criminal history of the appellants and present case was the first offence of the appellants. The appellants are realising the mistake and they are remorseful for their conduct. They are providing their valuable contribution towards the society. They are sole bread earner for their families. The date of incident has been shown as 01.01.2001. Accordingly, 21 years have gone by. The appellants have been facing mental trauma from the year 2001. However, the appellants are not disputing the conviction order rather they challenged the order of sentence on the ground of Section 360 of Cr.P.C. or Probation of Offenders Act, 1958.
3. Learned counsel for the appellants has further submitted that appellants has no criminal antecedents. The provisions of Section 360 Cr.P.C. provides a relief to convict persons for certain offences. Section 360 (1) Cr.P.C. makes provisions that taking into consideration the age, character or antecedents and the circumstances in which offence was committed, the offender should be given the benefit of probation of good conduct. The legislature has given a discretion to trial court to provide benefit of Probation of Offenders Act, 1958 in appropriate cases. Further Section 361 of Cr.P.C. makes provision that if trial court have not given the benefit of Section 360 of Cr.P.C. or provisions of Probation of Offenders Act, 1958, then in that case, it is incumbent for trial court to record the special reason in its judgment for not having done so. Thus, the order of learned trial court for sentencing the accused suffers from serious illegality which is not sustainable in the eye of law, and accordingly, the same is liable to be set aside and instant appeal deserved to be allowed partly.
4. Learned A.G.A. has submitted that order of conviction is just and proper. On the point of submission regarding sentence, learned A.G.A. has not disputed the argument.
5. Having heard the submission of learned counsel for the appellants and learned A.G.A., I have gone through the record of the case properly.
6. The record indicates that by the impugned judgment, learned trial court has convicted and sentenced the appellants for the offence under Section 323 IPC and sentenced them to undergo for 01 year's Simple Imprisonment with a fine of Rs.1000/-each. In default stipulation, they have to undergo additional imprisonment for two months. The maximum punishment for the offence under Section 323 IPC is 01 year or fine or both.
7. According to Section 4 of the Probation of Offenders Act, 1958, a person, who has been found guilty for having committed offence not punishable with the death or imprisonment for life, may be entitled for getting the benefit of probation. There is no evidence on record regarding any previous conviction or criminal history of appellants.
8. The provisions of Cr.P.C. has not given any straitjacket formula for sentencing. According to law laid down by the Hon'ble Apex Court and High Courts, the sentence for the offence depends on so many factors like circumstances for commission of crime, character, antecedents of offenders, use of weapon, mode of crime, mental status and the age of offender. The objected for sentencing should be reformative.
9. In the present case, considering the extent of sentence, learned trial court has not given any special reason as prescribed under Section 361 Cr.P.C. as to why the accused persons are not entitled to get the benefit of provisions of Offenders Act or benefit of Section 360 Cr.P.C. In view of the aforesaid provisions, the impugned order of sentence, suffers from material illegality and in the above circumstances the order for sentence cannot be sustained. Taking into consideration that fact that the year of offence is 2001, approximately 21 years have gone by.
10. In the light of above facts and circumstances of the case, the present appeal is liable to be allowed partly, so far it relates to the order of sentence of appellants. The order of conviction passed by learned trial court is hereby affirmed. Accordingly, the order of sentencing is hereby set aside. The appellants are given the benefit of Section 4 of Probation of Offenders Act, 1958.
11. It is directed that appellants Arvind, Jagga, Raju @ Ramu and Brijlal @ Dhanna shall surrender before the Trial Court within one month from today. The Trial Court is directed to release the appellants on bail on their furnishing personal bonds with two sureties each of like amount as per provisions of Section 4 of Probation of Offenders Act, 1958. The order of sentence is modified to the above extent.
12. Accordingly, the appeal is disposed of.
13. Office is directed to send the copy of this order to the court concerned for compliance.
(Narendra Kumar Johari, J.)
Lucknow :
Date : 9th September, 2022
ML/-
Whether the order is speaking:- Yes/No
Whether the order is reportable:- Yes/No
