Rajasthan High Court - Jodhpur

Subhash And Ors vs State on 25 April, 2022

Bench: Pushpendra Singh Bhati

(1 of 8) [CRLA-389/1992]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 389/1992

Subhash And Ors.

                                                                   ----Appellant
                                    Versus
State
                                                                 ----Respondent


For Appellant(s)          :     Mr. Rajeev Bishnoi
For Respondent(s)         :     Mr. Mukesh Trivedi, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

25/04/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

2. This Criminal Appeal has been preferred under Section 374

Cr.P.C. praying for the following reliefs:-

"It is, therefore, prayed that this appeal may kindly be accepted, the conviction of the appellants be set aside and they be acquitted."

3. The matter pertains to an incident that occurred in the year

1990 and the present appeal has been pending since 1992.

4. Vide impugned judgment dated 31.10.1992 the learned

Additional Sessions Judge, Churu in Sessions Case No.78/92

(20/91) convicted the appellants as under :-

(2 of 8) [CRLA-389/1992]

Appellant No.1 Subhash convicted for the offence under Section

304 Part-II IPC and sentenced him to undergo seven years R.I.,

along with a fine of Rs. 200/- default in payment of which he was

to further undergo 2 months' R.I.

Appellants No.2 to 9 convicted for the offence under Section 304

Part-II readwith Section 149 of IPC and sentenced them to

undergo seven years R.I., along with a fine of Rs. 200/- default in

payment of which they were to further undergo 2 months' R.I.

Appellants no.1 to 9 convicted for the offence under Section 148

IPC and sentenced them to undergo one years' R.I., along with a

fine of Rs. 60/- default in payment of which they were to further

undergo 07 days' R.I..

Appellant No.3, 4, 6, 7, 8 & 9 convicted for the offence under

Section 323 of IPC and sentenced them to a fine of Rs.100/-

default in payment of which they were to further undergo 15 days'

' R.I.

4. Learned counsel for the appellants has shown from the

record that apparently at the time of the incident, though there

was a dispute between the parties, but there was no intention to

cause death to the old lady, who was struck by lathi on head,

which caused her death. It is also contended that since the

intention was not there that is why the conviction has happened

under Section 304 part-II.

5. Learned counsel for the appellants further submits that the

appellant no.1 was a minor but the theory of minor was

disregarded by learned trial court. It is also contended that that

main allegation was upon Subhash and Pratap, out of which,

Pratap has already expired.

(3 of 8) [CRLA-389/1992]

6. Learned counsel for the appellants further submits that apart

from Pratap, Ram Kumar, Balveer and Rohitash have also expired.

It is also contended that learned trial court could not prove the

offence beyond reasonable doubt and in fact has rendered the

judgment on probabilities.

7. Learned counsel for the appellants also submits that looking

into the age of the appellant no.1 and also the fact that he has

already undergone a sentence of two years and 10 months, thus,

the appeal may be allowed while giving the benefit of Probation of

Offenders Act to the surviving appellant and the sentence awarded

to them may be substituted with the period of sentence already

undergone by them.

8. Learned counsel for the accused-appellants submits that the

accused-appellant do not have any criminal antecedents to his

discredit.

9. Learned counsel for the accused-appellant further submits

that the sentence awarded to the accused-appellant-Subhash

suspended by this Hon'ble Court vide the order dated 10.02.1994

passed in S.B. Criminal Misc. Second Bail Application for

Suspension of Sentence No.40/1993 and thus, his on bail.

10. Learned counsel for the accused-appellant however, makes a

limited prayer that the accused-appellant may be granted benefit

under Section 4 of the Probation of Offenders Act, 1958

(hereinafter referred to as 'the Act').

"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

(4 of 8) [CRLA-389/1992]

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)...

(4)...

(5)... "

11. On the other hand, learned Public Prosecutor opposes the

appeal and submits that looking to the overall facts and

circumstances of the case and the well reasoned speaking order

passed by the learned court below, the accused-appellant no.1 is

not entitled for any indulgence by this Court.

12. Heard learned counsel for the parties as well as perused the

record of the case.

13. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas

(1974) 4 SCC, the Hon'ble Apex Court observed as under:-

(5 of 8) [CRLA-389/1992]

"The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society.

In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society."

13.1 In Brij Lal Vs. State of Rajasthan RLW 2022 Raj 945, a

Coordinate Bench of this Court observed as under:-

"Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... "

13.2 In Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC

198, while reiterating the ratio decidendi laid down in Dalbir

Singh Vs. State of Haryana, (2000) 5 SCC 82, the Hon'ble

Apex Court observed as under:

"... The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that

(6 of 8) [CRLA-389/1992]

releasing the convicted person on probation of good conduct must appear to the Court to be expedient..."

13.3 In Lakhvir Singh and Ors. Vs. The State of Punjab and Ors.

(2021) 2 SCC 763 wherein the Hon'ble Apex Court of India, with

regard to the application of the Probation of Offenders Act, 1958

vis-a-vis those Acts wherein a minimum sentence of imprisonment

has been prescribed by the legislature, observed as under:-

"Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case. In fact, the observation made in Joginder

(7 of 8) [CRLA-389/1992]

Singh v. State of Punjab ILR (1981) P & H 1 are in the same context."

14. This Court on a conjoint consideration of the fact, which

includes the age of the appellant no.1; the attribution and

intention to commit the crime; the proof rendered by the

prosecution; the death of almost half of the accused persons; the

long delay in proceedings and also the fact that the old lady was

not intended to be killed, is inclined to substitute the sentence

awarded to the appellants with the benefit of Probation of

Offenders Act.

15. This Court observes that there is no material on record that

the accused-appellant has any criminal antecedents. Thus, the

accused-appellant is entitled to the benefit under the Probation of

Offenders Act, 1958.