Ram Pratap @ Pratap Yadav vs State Of U.P.
2023 Latest Caselaw 18436 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


				            Neutral Citation No. - 2023:AHC-LKO:48110										     	  										   A.F.R
 
Reserved  
 

 

 

 
In Chamber
 

 
Case :- CRIMINAL REVISION No. - 79 of 2011
 

 
Revisionist :- Ram Pratap @ Pratap Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Revisionist :- Sunil Kumar Singh,Jitendra Bahadur Singh,Seraj Ahmad Khan
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Umesh Chandra Sharma,J.

1. Heard learned counsel for the revisionist, learned AGA and perused the records.

2. This criminal revision has been filed against the judgment and order dated 19.02.2010 passed by Additional Chief Judicial Magistrate-IV, Faizabad, in Criminal Misc. Case No. 82 of 1998, convicting the revisionist-accused under Section 323 IP.C. for six months simple imprisonment with fine of Rs. 500/- and under Section 325 I.P.C. for three years simple imprisonment with fine of Rs. 1,000/- with default stipulation as well as the judgment and order dated 28.01.2011 passed by Additional Sessions Judge, Court No.5. Faizabad in Criminal Appeal No. 33 of 2010 whereby the Appellate Court has affirmed the judgment and order of learned Trial Court.

3. In brief, facts of the case are that the informant Smt. Ram Rati lodged an F.I.R. at Police Station Haidarganj, Faizabad, that when her grand daughter namely Km. Kamlesh was grazing cattle and they entered the field of accused Ram Pratap, he beat up her grand daughter by punches and slaps. When her grand daughter narrated her, she went to the house of accused to reprimand him, the accused also beaten her with sticks. On her hue and cry when villagers reached there, the accused fled away abusing the informant. The informant received injury in her right hand. The F.I.R. was lodged and during the course of investigation, after finding fracture at the lower part of her right hand, the N.C.R. was converted into F.I.R. and Section 325 I.P.C. was added and the I.O. submitted charge-sheet under Section 323, 325 and 504 I.P.C.

4. The concerned Magistrate framed the charges under the aforesaid Sections. The prosecution, in order to prove the guilt, examined following witnesses.

P.W.-1

Km. Kamlesh

P.W.-2

Ram Rati

P.W.-3

S.I. K.P. Singh

P.W.-4

Constable Ram Saran Bharti

P.W.-5

Dr. A.K. Srivastava

5. The prosecution produced following documentary evidence:

Ex. Ka-1

Medical report

Ex. Ka-2

Carbon Copy N.C.R.

Ex. Ka-3

Carbon Copy Kayami G.D.

Ex. Ka-4

Carbon Copy Radiologist report

6. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied the allegations and charges and stated that the witnesses have deposed due to enmity. No defence evidence was produced from the side of the accused.

7. Before the Trial Court, it has been argued that since the copy of the N.C.R. is not on record and G.D had not been produced and no order under Section 155 (2) Cr.P.C. was on record, hence, the investigation is faulty and the accused is entitled to the benefit of doubt.

8. This argument was answered by the trial Court that the case was initially registered as N.C.R. but on the basis of fracture and radiologist's report, the case was converted into Section 325, 323 and 504 I.P.C. and a crime no. 82 of 1998 was allotted. It has been satisfactorily answered that carbon copy of N.C.R. was available on record which was admissible in evidence under Section 65 of The Indian Evidence Act.

9. Another objection was raised by the counsel for the accused that carbon copy of the G.D. is not available on record. It is proved that the G.D. are weeded out after five years. Hence original G.D. was not available. Carbon copy of the G.D. is prepared in the same process, therefore, carbon copy of the G.D. can be treated as original.

10. It was further argued before the trial Court that the place of occurrence has not been proved and there are serious contradictions about the place of occurrence in the statements of the witnesses of facts.

There are only two witnesses of fact namely P.W.1, Km. Kamlesh and P.W.2, informant, Ram Rati. It has been written in the N.C.R. that the informant was going to reprimand the accused at his home when he started beating her by sticks. P.W.1 has deposed that accused had beaten at her hand, she further deposed that after getting information from her grand daughter, she had not gone to the house of the accused. She denied that such statement was given by her to the I.O. This witness deposed that when she reached on the field, no one was there. Km. Kamlesh, P.W.1, has deposed that when her grand mother asked about the beating from the accused, the accused also beaten her before reaching the field. This witness has clearly deposed that her grandmother had not gone to the house of the accused. Thus, from the evidence of both the witnesses it has been clearly established that Ram Rati was beaten by the accused in between his house and his field.

Thus the trial Court did not find any discrepancy about the place of occurrence in the evidence of both the witnesses of fact.

11. It was further argued before the Court that as per the N.C.R., the occurrence took place at about 3:00 P.M. whereas the informant had stated under Section 161 Cr.P.C. that the occurrence had taken place at about 4:00 P.M.

The learned trial Court has concluded that the statement given in the Court would prevail over the statement recorded under Section 161 Cr.P.C.

According to this Court, P.W.-2 is an illiterate, rustic villager, there is no evidence that at the time of incident, she was wearing a watch, hence, one hour variation in time of incident is immaterial and on account of such variation, it can not be said that time of occurrence has been substantially changed. According to this Court on account of such variation, the prosecution case can not be said to be suspicious or doubtful.

12. It was further argued before the trial Court that the evidence of P.W.5, Dr. A.K.Srivastava is not admissible in evidence as there was difference in name of the doctor.

On the injury report, the name of the doctor has been written to be Dr. A.K. Srivastava whereas by slip of pen his name has been written to be S.K.Srivastava on the back of the charge-sheet. It has not been established that there were two doctors, therefore, only on account of slip of pen no benefit can be given to the accused.

According to the prosecution when the informant Ram Rati went to reprimand the accused for beating her grand daughter, he attacked with sticks on her right hand due to which her hand was broken. It has also been proved from the evidence of Dr. A.K. Srivastava. Further injury report & x-ray plate were also on record which have been proved by the concerned witnesses.

According to the accused, the witnesses were falsely deposing on account of enmity but he could not disclose any prior enmity between him and the informant which may be a cause of false implication.

13. On the basis of above discussions, the learned Trial Court convicted the accused under Section 323 and 325 I.P.C.

14. Being aggrieved the accused-revisionist filed Appeal No. 33 of 2010 (Ram Pratap Vs. State of U.P.) which was decided by Additional Sessions Judge Court No.5, Faizabad by judgment and order dated 28.01.2011 affirming the order of conviction and sentencing passed by the Trial Court.

15. During the appeal, a ground was taken by the accused-revisionist-appellant that since the investigating officer has not been examined and the charge-sheet has not been proved, hence, he is not liable to be convicted and the appeal was liable to be allowed.

In this regard, the Appellate Court relied on the following judicial precedents:

(i) Bihari Prasad and Others Vs. State of Bihar, 1996 (2) SCC 317.

(ii) Raj Kishor Jha Vs. State of Bihar, 2003, (47) ACC, 1068.

In both the cases it has been held that in each and every case, examination of the investigating officer is not necessary if no prejudice is caused to the accused.

According to this Court ,in the case in hand, a prompt F.I.R. has been lodged and after finding fracture on right hand of the informant, the case was converted into Section 325 I.P.C. This Court is of the view that non-examination of the I.O. is not fatal for the prosecution as in this case the oral, documentary and medical evidence are in support of each other. Hence, accused not been prejudiced by non-examination of the I.O.

16. On the basis of above discussion, this Court is of the view that the judgment and order of both the Courts below are factually and legally correct and no other opinion in favour of the revisionist can be formed. Thus, the conviction awarded by the learned Trial Court and upheld by the Appellant Court, is affirmed.

17. At this juncture, learned counsel for the revisionist argued that it is a case of the year 1998 and 25 years have been elapsed and the accused has become an old (senior citizen). There is no previous or past criminal history of the accused, the occurrence had taken place in a fit of anger due to wastage of crop of the accused-revisionist on account of grazing by the cattle of the informant, hence, a lenient view should be adopted regarding sentence. He further argued that no useful purpose would be served by sending the accused-revisionist in jail and he may be released on probation of good conduct.

18. In this regard learned counsel for the accused-revisionist has placed reliance on the following judgments:

(a) State of Karnataka Vs. Muddappa, (1999) 5 SCC 732,

In this case, the offence under Section 302 I.P.C. was converted into Section 304 Part II I.P.C. Relevant portion is being quoted hereinbelow:

"2. The learned Counsel for the appellant is not in a position to assail the acquittal of the accused under Section 302 I.P.C., but he vehemently contends that the Court did not bear in mind germane considerations for releasing the accused on probation after convicting him under Section 304 Part II I.P.C. Whether the benefit of the Probation of Offenders Act could be extended in any particular case depends upon the circumstances of that case. Admittedly, there is no statutory bar for application of the Act to an offence under Section 304 Part II where the maximum punishment is neither death nor imprisonment for life. In that view of the matter and on examining the impugned judgment of the High Court, we find that the Court did consider the relevant material and then came to the conclusion that the accused should be released on probation by applying the provisions of Section 4 of the Probation of Offenders Act. We see no infirmity with that order to be interfered with by this Court after this length of time, more so when nothing has been pointed out as to whether the accused has, in any way, violated the terms and conditions of allowing him on probation."

(b) Mohd. Monir Alam Vs. State of Bihar, (2010) 12 SCC 26.

In this case the offence under Section 302 I.P.C was converted into Section 304 part II and the Apex Court found it fit to enlarge the appellant on probation instead of sending him to jail for serving the sentence. Relevant part of this judgment is reproduced hereinbelow:

"8. We have considered Mr. Suri's submissions very carefully. We see from the documents that the appellant has secured a Doctorate and is presently employed as a Senior Assistant Professor in the Department of Strategic and Regional Studies, University of Jammu and that he had secured this appointment in the year 1997. His profession qualifications have also been provided to us which show his expertise in his speciality and also portray his association with prestigious organisations worldwide in the field of strategic studies. We are, therefore, of the opinion that his conduct that his conduct and attainments after his involvement in this matter justify his release on probation. We, accordingly, dismiss the appeal but direct that he shall be released on probation under Section 4 of the Probation of Offenders Act, 1958 on terms to be settled by the trial court."

(c) Krishna Deo and Others Vs. State of U.P., judgment dated 11.08.2017, passed in Criminal Appeal No. 735 of 1982, passed by Division Bench of this Court. Relevant portion of this judgment is reproduced as follows:

"23. We are also not interfering with the conviction of appellants- Smt. Jaikali and Smt. Bhagwandei under Section 147 & 323/149 of the IPC. As discussed above, considering the facts and circumstances of the case, instead of sentencing the appellant no. 1 for the offence under Section 304 Part-II r/w Section 34, 147, 323/149 of the IPC., we think it proper in the interest of justice to release the appellant- Krishnadeo, after giving him the benefit of Section 4 of the Probation of Offenders Act. We are not inclined to interfere with the sentence passed against the appellant- Smt. Jaikali, Smt. Bhagwandei, who were only directed to pay fine. Appellant-Krishna Deo is directed to surrender in the court below. The learned court below is directed to release him as per the provisions of Section 4 of the Probation of Offenders Act. The learned court below shall take all coercive steps for realizing the fine from appellants-Jaikali and Bhagwandei, if the same has not been deposited by them."

19. From the aforesaid discussions, it is very much clear that the High Court and Hon'ble the Supreme Court have enlarged the accused on probation instead of sending them in jail even in case of culpable homicide not amounting to murder which had fallen under Section 304 part II I.P.C. In the present case the accused has been held guilty only under Section 323 and 325 I.P.C. therefore, the case of the accused-revisionist is at better footing.

20. Section 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of probation to first offenders. Both these sections are reproduced as under:-

"360. Order to release on probation of good conduct or after admonition.--(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.

(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.

(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.

(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.

(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.

(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.

(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.

361. Special reasons to be recorded in certain cases.-Where in any case the Court could have dealt with,--(a) an accused person under section 360 or under the provisions of the Probation of Offenders Act, 1958 (20 of 1958); or (b) a youthful offender under the Children Act, 1960 (60 of 1960) or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, 135 but has not done so, it shall record in its judgment the special reasons for not having done so."

21. There is one central Legislation on the subject in the name of "Probation of Offenders Act, 1958", relevant Sections 3 and 4 thereof are extracted hereunder:-

"3. Power of court to release certain offenders after admonition.--When 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.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.

(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."

22. There is one more legislation on the subject namely "Uttar Pradesh First Offenders' Probation Act, 1938". Sections 3 and 4 of the Act are reproduced herein below:-

"3. Power of court to release certain offenders after admonition.--In any case in which a person is found guilty of the offences of theft, dishonesty, misappropriation or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two years imprisonment and no previous conviction is proved against him, the court by which he is found guilty may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender, and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed instead of sentencing him to any punishment, release him after due admonition.

4. Power of court to release certain offenders on probation of good conduct.--(1) When any person is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to the age, character, antecedents or physical or mental condition of the offender and to the circumstances in which the offence was committed that it is expedient that the offender should be released on probation of good conduct 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 the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and regular occupation in the place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions :

Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the State Government, which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so.

(2) Where the offender ordered to be released under sub-section (1) is under twenty-four years of age, the court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order:

Provided that the period so specified shall not extend beyond the date on which, in the opinion of the court, the offender will attain the age of twenty-five years.

(3) A court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the condition with respect to residence, abstention from intoxicants and any other matters as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.

(4) A court making an order under sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.

A perusal of these legislations will leave a student of Law in a confused state of mind. All these legislations are dealing with the same subject and on first sight looks encroaching each other. Looking closely, one may get that Section 360 of the Code relates only to persons not under twenty one years of age is convicted for an offence punishable with fine or with imprisonment for a term of seven years or less, or when any person under twenty one years of age or any woman is convicted for an offence not punishable with death or imprisonment for life, and no previous conviction is proved, may be released on probation, taking into consideration the facts and circumstances of the case, character of the offender and the gravity of the offence committed by him. Section 4 of the Probation of Offenders Act is having a much wider scope as it applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. If I look further deep into Section 360 CrPC we will find that in sub-section (10) it has been provided that nothing in this section shall affect the provisions of the Probation of Offenders Act."

23. A Division Bench of this Court in State of Uttar Pradesh Vs. Misri Lal and others, 1982 CrLJ 1420 held as under:-

"26. ...The application of Section 360 in Utter Pradesh was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the Utter Pradesh Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 of the Amending Act No. 16 of 1976 amended S.484 of the Code and inserted the following clause (e) after clause (d) :-

"(e) ...the United Provinces First Offenders' Probation Act 1938......shall continue in force in the State of Uttar Pradesh .... and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State".

Section 361 of the CrPC lays down that where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, or a youthful offender under the Children Act, 1960 or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders, but has not done so, it shall record in its judgement the special reasons for not having done so.

It follows from this provision read with clause (e) of S.484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the Utter Pradesh First Offenders' Probation Act, 1938."

24. Thus, provisions of UP Probation of First Offenders' Act shall be followed, in the geographical area where that has been made applicable and not Section 360 of the CrPC. In this way enforcement of Probation Act in some particular area, thus excludes the applicability of the provisions of Section 360 of the Code in that particular area,however it will be the bounden duty of the Court to consider as to why not to proceed to grant the benefit of Probation of Offenders Act, as provided under Section 361 of the CrPC.

25. Coming to the point of desirability of extending the benefit of Probation Act to the accused/revisionist in Sitaram Paswan and another Vs. State of Bihar, AIR 2005 SC 3534 Hon'ble Supreme Court held as under:-

"For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."

26. In Mohd. Hashim Vs. State of U.P and others, AIR 2017 SC 660, Hon'ble Supreme Court opined as under:-

"20. ...In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:-

"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 conditions laid down in the appropriate provisions 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 Sections 3 and 4 of the Act."

27. This is a case of the year 1998 and more than 25 years have passed. The incident took place way back in the year 1998. The accused-revisionist has suffered in the matter for almost past two and half decades and there is no other pre or post criminal antecedent of the accused revisionist. Therefore, it would not be appropriate to send the revisionist in jail.

28. As far as the conviction part is concerned, this Court does not find any illegality, perversity or infirmity in the order passed by the courts below but keeping in view the discussion made above, the sentence inflicted on the accused-revisionist requires modification.

29. The revision is partly allowed with following modifications:-

29.1. The conviction of the accused-revisionist by courts below is upheld. The sentence of revisionist-accused is modified to the tune that he is provided benefit of Section 4 of the UP Probation of Offenders Act and is released on probation on the condition that he will keep peace and good conduct for one year from today and shall file two sureties to the tune of Rs.10,000/- each along with his personal bond before the court below and also an undertaking to the effect that he shall maintain peace and good behaviour during the period of one year from today. In case of breach of any of the conditions mentioned above, the revisionist will be subjected to undergo the sentence as directed by the courts below. The bonds aforesaid will be filed by the revisionist-accused within one month from today, before the District Probation Officer, Ayodhya, UP under the intimation to the concerned court.

30. A certified copy of the order be also sent to the court concerned and District Probation Officer, Ayodhya, UP for compliance.

Order Date :- 21.7.2023

S.Verma

{Umesh Chandra Sharma,J.}