Kariya And 3 Ors. vs State Of U.P.
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Allahabad High Court

Kariya And 3 Ors. vs State Of U.P. on 29 April, 2025

Author: Rajnish Kumar

Bench: Rajnish Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:24579
 
Court No. - 11
 
Case :- CRIMINAL APPEAL No. - 155 of 2005
 
Appellant :- Kariya And 3 Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vinod Kumar Singh Ii
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rajnish Kumar,J.
 

1. This appeal under Section 374 of Criminal Procedure Code (here-in-after referred as CrPC) has been filed against the judgement and order dated 15.01.2005 passedby Additional Sessions Judge/F.T.C.-IInd, Faizabad in S.T. No. 534 of 2000 (State vs. Kariya and three others) arising out of Case Crime No. 463 of 1999, under Sections 323, 325, 504, 506, 308 of Indian Penal Code(hereinafter referred to as ?IPC?), PS- Maharajganj, District- Faizabad awarding six months rigorous imprisonment under Section 323; three years rigorous imprisonment and one thousand rupees fine on each of the appellants under Section 325/34 IPC; six months rigorous imprisonment under Section 504 IPC; and six months rigorous imprisonment under Section 506 IPC. It has further been provided that all the sentences will run concurrently and in case of non-payment of fine, the accused-appellants would have to undergo additional six months rigorous imprisonment.

2. Learned counsel for the accused-appellants submits that he is not challenging the impugned judgement and order of conviction on merit and he is confining his prayer in the appeal in respect of only order of sentence. He further submits that the accused-appellants are not previously convicted and appellant No.2 was very old, therefore, they are entitled for the benefit of the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as ?Act of 1958?), but the same has been denied by the learned trial court on misconceived and baseless grounds and without recording any sufficient reason by reasoned and speaking order.

3. Learned AGA, on the basis of instructions, submits that the accused-appellants had neither any criminal history prior to the incident in this case on account of which by impugned judgement and order in the present appeal, they have been convicted nor there is any criminal history of the accused-appellants subsequent thereto.

4. As per the prosecution story, the F.I.R. was lodged at PS Maharajganj by Pw-1 Kishori Loniya alleging therein that he is a resident of Kadiyapur and the accused-appellants are also residents of the same village. There was enmity between the parties on account of the land dispute. There were thin trees of sheesham in the land in dispute. The accused-appellants had extracted and sold them and on preventing them by Smt. Shanti Devi from his side at 07.00 am in the morning on 28.11.1999, the accused-appellants had beaten to him by lathi-danda. His wife raised voice on which the witnesses namely, Bhallur Loniya S/o- Bhagwandeen and Hukum S/o- Alagu ran and saw the incident and saved his wife. Then the accused-appellants ran away threatening and abusing.

5. After investigation, the chargesheet was filed. On committal of the case to the Sessions Court, charges under Sections 308/34, 325, 323, 506 IPC were framed, which was denied by the accused-appellants.

6. Seven witnesses were produced on behalf of the prosecution. Thereafter the statement of the accused-appellants were recorded under Section 313 CrPC, wherein they denied the allegations and to adduce any evidence.

7. After considering the evidence adduced before it, the trial court convicted the appellants under Sections 325/34, 323, 504, 506 IPC. On the question of punishment, the accused-appellants claimed the benefit of first offender on the ground that they had not been convicted earlier and there is nobody else at home for earning and the accused-appellant no. 2- Chillaoo is an old person and considering the same, they may be granted the benefit of the Probation of Offenders Act, 1958.

8. It has not been denied by the trial court that they were not earlier convicted. However, the benefit has been denied on the ground of nature of injuries caused by each of the accused-appellants without considering their age and considering the fact that a plea was taken that accused-appellant no. 2- Chillaoo was an old person. So far as the injuries are concerned, the three injuries were found and they all were simple in nature. Out of the said three injuries, X-ray was referred for one in which a fracture was found. Therefore, Section 308 IPC was added. However, after considering the evidence of the two doctors namely, Dr. A.K. Srivastava, who appeared as P.W.-3 and Dr. K. Ramanuj, who appeared as P.W.-7, the learned trial court recorded a finding that the case under Section 308 IPC is not made out because none of the doctors has given evidence that the death was possible on account of the injuries suffered by the victim, but without considering the same and recording any finding in this regard, the benefit has been denied.

9. Section 361 of the Code of Criminal Procedure specifically provides 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 but has not done so, it shall record in its judgment the special reasons for not having done so.The Act does not create any distinction between the character of the offender and the provisions of Section 4 of the Probation of Offenders act. The provision can be applicable to any case where the convicted is found guilty for having committed an offence not punishable with death or imprisonment for life. Incidentally certain exceptions have been indicated by the Hon'ble Supreme Court as in the case of Smt. Devki Versus State of Harayana reported in 1979, (3) SCC 760 where the Hon'ble Supreme Court has held that benefit of Section 4 of 1958 Act could not be extended to a culprit who was found guilty of abducting a teenaged girl and forcing her to sexual submission with criminal motive. Similarly in the case reported in 1980 (4) SCC 669 in Re: State of Maharashtra Versus Natwar Lal Damodar Das Soni the Hon'ble Supreme Court declined to extend the benefit of the 1958 Act to an accused found guilty of gold smuggling.

10. The Hon'ble Supreme Court, in the case of Dalbir Singh versus State of Haryana (2000) 5 SCC 82, has held that the Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence". Further, it has been held that Section 4 casts a duty on the court to take into account the circumstances of the case including the nature of the offence. The relevant paragraphs 8, 9 and 10 of the said judgment are reproduced hereinafter:

8.Parliament made it clear that only if the court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is "the nature of the offence".

9.Thus Parliament has left it to the court to decide when and how the court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the court to be expedient. The word "expedient" had been thoughtfully employed by the Parliament in the section so as to mean it as "apt and suitable to the end in view". In Block's Law Dictionary the word "expedient" is defined as "suitable and appropriate for accomplishment of a specified object" besides the other meaning referred to earlier. In State of Gujarat v. Jamnadas G. Pabri & Ors., AIR (1974) SC 2233 a three Judge Bench of this Court has considered the word "expedient''. Learned Judges have observed in paragraph 21 thus :

10.Again, the word 'expedient' used in this provisions, has several shades of meaning. In one dictionary sense, 'expedient' (adj.) means 'apt and suitable to the end in view', 'practical and efficient'; 'politic'; 'profitable'; 'advisable', 'fit, proper and suitable to the circumstances of the case'. In another shade, it means a device 'characterised by mere utility rather than principle conducive to special advantage rather than to what is universally right' (see Webster's New International Dictionary)."

It was then held that the court must construe the said word in keeping with the context and object of the provision in its widest amplitude. Here the word "expedient" is used in Section 4 of the P.O. Act in the context of casting a duty on the court to take into account "the circumstances of the case including the nature of the offence.........". This means Section 4 can be resorted to when the court considers the circumstances of the case, particularly the nature of the offence, and the court forms its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct. Courts must bear in mind that when any plea is made based on Section 4 of the P.O. Act for application to a convicted person under Section 304-A of IPC, that road accidents have proliferated to alarming extent and the toll is galloping up day-by-day in India, and that no solution is in sight not suggested by any quarters to bring them down. When this Court lamented two decades ago that "more people die of road accidents than by most diseases, so much so the Indian highways are among the top killers of the country" the saturation of accidents toll was not even half of what it is today. So V.R. Krishna Iyer, J., has suggested in the said decision thus :

"Rashness and negligence are relative concepts, not absolute ab-stractions. In our current conditions, the law under Section 304-A IPC and under the rubric of negligence, must have due regard to the fatal frequency of rash driving of heavy duty vehicles and of speeding menaces."

11. Considering the above submissions and the relevant law on the point, I am of the view that the accused has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act 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 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act were not applied, then the learned Trial Court should have recorded reasons for the same.

12. According to the facts of the present case, the learned Trial Court though considered the claim of the appellants for benefit of the first offender but awarded the punishment and does not record any reason for not granting the benefit of the first offender, which is in contravention of Section 361 of the Code of Criminal Procedure, 1973 wherein the duty has been cast upon the court that if it does not deal with the case under the provisions of Section 360 or under the provisions of the Probation of Offenders Act, 1958, it shall record in its judgment the special reasons for not having done so.

13. Learned AGA appearing for the State, on the basis of records, does not dispute the fact that accused-appellants are the first time offenders and were not previously convicted in any other case. He also does not dispute that in view of the express provisions of Section 361 Cr.P.C., considering the facts and circumstances, nature of the offence, evidence adduced, the age of the accused-appellants and particularly, the time period which has left, the benefit of Section 4 of the Act of 1958 can be granted in this case.

14. In view of above, this Court is of the view that learned trial court has committed an error in denying the benefit of the Act of 1958 and the provisions of Section 360 CrPC/361 CrPC without recording specific reasons for declining the same. The reasons assigned are not sufficient and contrary to the evidence recorded by the learned trial court itself, as discussed above. Therefore, the same are not sustainable and though, the appeal is liable to be dismissed upholding conviction of the accused-appellants as they are not challenging it on merit as stated above but granting benefit of first offender.

15. In view of the aforesaid facts and circumstances, this appeal is, accordingly, partly allowed by upholding the conviction of the accused-appellants and punishment awarded to them by the impugned judgment and order. However, the appellants are granted the benefit of first offender and they are released on probation. The accused-appellants shall file personal bonds and two sureties in the like amount to the tune of Rs. 25,000/- each within a period of six weeks from the receipt of certified copy of this order before the District Probation Officer, Ayodhya and undertaking that they shall keep peace in the society and shall not commit any offence in future. These bonds shall be for a period of two years.

16. In case of breach of any of the above condition and undertaking, the accused-appellants shall be taken into custody and shall undergo the sentences awarded by the Trial Court as per law.

17. The impugned order stands modified to the aforesaid extent.

18. Let a copy of this judgment as well as the record be transmitted to the concerned Trial Court forthwith for necessary compliance.

Order Date :- 29.4.2025

Shravan