[Cites 14, Cited by 0]
Rajasthan High Court - Jodhpur
Hari Shanker And Ors vs State (2026:Rj-Jd:1577) on 13 January, 2026
[2026:RJ-JD:1577]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 547/1996
1. Babu Lal S/o Rampratap, R/o Ranisar Bas, Bikaner
2. Rajendra S/o Anna Ram, R/o Savodaya Basti Near Narsingh
Sagar Talab, Bikaner
----Appellants
Versus
The State of Rajasthan
----Respondent
Connected With
S.B. Criminal Appeal No. 516/1996
1. Hari Shanker S/o Shri Gopi Ram Sunar R/o Vaidya Manga Ram
Colony, Bikaner.
2. Raj Kumar S/o Shri Ram Chandra Acharya R/o Vaidya Manga
Ram Colony, Bikaner.
3. Jetha Ram @ Jethmal S/o Shri Bhera Ram Bhargava R/o Near
Choudhary Ramkanta, Vaidya Manga Ram Colony, Bikaner.
----Appellants
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. S.K. Verma
Ms. Anjali Kaushik
Mr. Kapil Purohit
Mr. Vikram Kanada
For Respondent(s) : Mr. Sharwan Singh Rathore, PP
HON'BLE MR. JUSTICE ARUN MONGA
Judgment
Judgement Reserved on :- 17/12/2025
Pronounced on :- 13/01/2026
REPORTABLE
1. These two appeals arise out of the same judgment/order
dated 23.10.1996 passed by the learned Additional Sessions
Judge No. 1, Bikaner and are being decided by the instant
common order. Vide impugned judgment, the learned trial Judge
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convicted and sentenced the appellants for offences under
Sections 324, 149, 147 and 452 of IPC. Section 307 of IPC was
also initially invoked, but was dropped later on.
2. Relevant facts are as under:
2.1 On the night between 19.03.1992 and 20.03.1992,
complainant Jamila, her husband Jamaldin and their three sons
(including Rafiq) were sleeping at their house in Mohalla Madha
Ram colony, Bikaner. At about 3-00 AM, their door was knocked
from outside. Jamaldin switched on the room light and enquired
who was knocking at the door. Upon this, he was asked to first
open the door and would then know who they were. As Jamaldin
did not open the door, it was forced open from outside. Five men,
namely Babu Lal, with a razor, Jeth Mal holding a chain in their
respective in his hands, Hari Shankar, Rajoo (Rajinder) son of
Anna Ram and Raj Kumar son of Ram Chander (the appellants
herein) barged into the room and started manhandling and
beating Jamila wife of Jamaldin. When the latter intervened to
save his wife, he was also attacked and inflicted injuries. Their son
Rafiq also woke up and tried to save them. He too was attacked
and inflicted injuries by the appellants.
2.2 Report of the occurrence was lodged with the police, which
led to the registration of FIR under Sections 458, 307, 323, 324,
147, 148, 149 IPC, Police Station, Naya Shahr. Upon completion of
investigation, challan was presented on Court.
2.3 The trial of the appellants led to their conviction and
sentence for offences under Sections 324, 324/149, 147, 452 IPC
vide judgment dated 23.10.1996 passed by the learned Sessions
Court. They are in appeal.
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3. I have heard the learned counsel for appellants, the learned
Public Prosecutor and gone through the record.
4. The findings of conviction recorded by the learned Sessions
Court and the consequential sentences awarded to the appellants
have been assailed by the learned counsel for appellants saying
that no motive has been ascribed to the appellants for the
commission of offence; there was considerable delay in lodging of
the FIR and there was time and opportunity for improvements,
exaggerations and introduction of falsehoods in the actual story;
PW-6 Rafiq injured deposed that on the day of occurrence he was
not in the house and was sleeping in the shop; neither of the two
independent witnesses named in the complaint namely PWs
Hanuman and Shanker Bishnoi, who were examined by the
prosecution, supported it's story, they were declared hostile but
even thereafter, nothing could be elicited by the prosecution in
support of it's case; PWs Jamila complainant, her husband
Jamaldin and their son Rafiq are members of the same family and
highly interested witnesses and that there are discrepancies in
their statements making the same unreliable to support the
conviction. Learned counsel for appellants thus urged for
acceptance of the appeals and acquittal of the appellants. Lastly
and alternatively, learned counsel for appellants prayed that in the
event of conviction being upheld, they be shown leniency in the
matter of punishment.
5. Learned Public Prosecutor has contested these submissions
saying that the findings of conviction recorded by the learned
Sessions Court are well founded, in consonance with the record
and the applicable law.
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6. I am inclined to agree with the learned Public Prosecutor. Let
us see how.
6.1 The occurrence took place at about 3-00 AM on 19.03.1992.
DDR Ex P-6 shows that the place of occurrence was about 2
Kilometers from Police Station, Nayashahr. The said DDR
incorporating the complaint was recorded at the Police Station on
19.03.1992 at 4-40 AM, which was later converted into the formal
FIR. To my mind, the incident was promptly reported to the police.
I reject the contention that there was considerable delay in
lodging the report with the police or that there was time and
opportunity for improvements, exaggerations and introduction of
falsehoods in the actual story.
6.2 PW Rafiq categorically stated that at the relevant time, he
was sleeping in the room adjacent to the one in which his parents
were sleeping. To the same effect is the testimony of his father
Jamaldin and mother Jameela. They also stated that in fact their
shop was being also run from the room where the incident
happened. Medico-legal report Ex P-2 of PW Rafiq shows presence
of five injuries including an incised wound 7 cmx9.4 cm x skin
deep on right hand dorsally, oblique caused by sharp weapon,
besides four other injuries caused by blunt weapon. Record, thus,
negatives the contention of the learned counsel for appellants that
at the relevant time, PW Rafiq was not at his house.
6.3 Medico-legal report Ex P-1 of PW Jamaldin shows presence of
five injuries including incised wounds (i) 8 cmx0.5 cm x skin deep
on abdomen, (ii) 3 cm x 0.3 cm x scalp deep on left frontal region
of scalp, (iii) 4 cm x 1 cm muscle/bone deep on nose, slice of skin
and sub-cutaneous tissue from nose missing, (iv) 2 cm x 0.2 cm x
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skin deep on web and proximal phalanx of left ring finger and
middle finger of left palm.
6.4. PWs Jameela, Jamaldin and Rafiq have fully supported the
prosecution story on all material particulars. The medico-legal
reports of PWs Jamaldin and Rafiq show that each of them had
been inflicted numerous injuries. It is not even claimed that those
injuries were or could have been self-inflicted or self-suffered.
Memory fades with passage of time. Occurrence took place on
19.03.1992. PWs Jameela, Jamaldin and Rafiq were examined in
the Court after about four years in February, 1996. Merely
because due to natural lapse of memory, certain minor
discrepancies cropped in their cross-examination about the exact
number of blows given by each of the appellants to their victims
and their respective sequence does not falsify the prosecution
story.
6.5. No motive, whatsoever, has been attributed to the
prosecution witnesses for falsely implicating the appellants or for
shielding the real perpetrators of the crime. In the absence of any
material suggesting animus, enmity, or ulterior interest on the
part of these witnesses, their testimony cannot be discarded on
the basis of mere conjecture. The defence has failed to
demonstrate any plausible reason why the prosecution witnesses
would depose falsely and subject the appellants to criminal liability
while allowing the actual offenders to go scot-free.
6.6. The mere fact that prosecution witnesses Hanuman and
Shankar Bishnoi did not support the case of the prosecution does
not, by itself, render the entire prosecution version unreliable. It is
well settled that the evidence of hostile or partially hostile
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witnesses does not efface the prosecution case in its entirety.
Their conduct is clearly indicative of having been influenced or
won over by the appellants, a circumstance not uncommon in
criminal trials, particularly where witnesses are vulnerable or
susceptible to pressure. Such hostility cannot be permitted to
operate to the advantage of the accused so as to nullify otherwise
cogent, consistent, and trustworthy evidence available on record.
6.7. The Court is required to assess the totality of the evidence
and separate the grain from the chaff. Where other material on
record, including the testimony of reliable witnesses and
corroborative circumstances, clearly establishes the commission of
the offence by the appellants, the prosecution case cannot be
rejected merely because a few witnesses have resiled from their
earlier statements.
6.8. As regards argument of the learned counsel for the appellant
that no motive has been ascribed to the appellants, it is trite law
that motive is a matter which lies primarily within the knowledge
of the offender. The absence of proof of motive, or the inability of
the victims or witnesses to articulate the same, does not ipso
facto discredit the prosecution case when there is otherwise clear
and convincing evidence establishing the guilt of the accused.
Motive, though relevant, is not a sine qua non for conviction,
particularly where direct or circumstantial evidence unerringly
points towards the involvement of the appellants in the
commission of the offence.
6.9. Therefore, the lack of an articulated motive and the hostility
of certain witnesses do not undermine the substantive and reliable
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material on record, which demonstrates that the appellants were,
in fact, the perpetrators of the offences in question.
7. The learned Sessions Court held that the injuries caused to
PWs Jamaldin and Rafiq were simple in nature. It, therefore,
acquitted the appellants of the charge under Sections
460/148/307 IPC but recorded their conviction for offences under
Sections 324/149/147/452 IPC.
8. In my considered opinion, the impugned judgment recording
the findings of conviction is consonance with the record of the
case and the applicable law. It does not seem to suffer from any
perversity in the findings of fact or material irregularity of
procedure. I am, therefore, inclined to affirm the aforesaid
findings of conviction for various offences recorded by the learned
Sessions Court. Ordered accordingly.
9. Speaking of sentences awarded by the learned Sessions
Court, the same are as under:
S.No Name Punishment
1. Babu Lal Under Section 324 of IPC: 2 years R.I. and
Fine of Rs. 1000/-
Under Section 452 of IPC: 1 year R.I. and
Fine of Rs. 1000/-
Under Section 147 of IPC: 1 year R.I. and
Fine of Rs. 500/-
2. Rajendra Under Section 324/149 of IPC: 2 years R.I.
and Fine of Rs. 1000/-
Under Section 452 of IPC: 1 year R.I. and
Fine of Rs. 1000/-
Under Section 147 of IPC: 1 year R.I. and
Fine of Rs. 500/-
3. Hari Shanker Under Section 324/149 of IPC: 2 years R.I.
and Fine of Rs. 1000/-
Under section 452 of IPC: 1 year R.I. and
Fine of Rs. 1000/-
Under Section 147 of IPC: 1 year R.I. and
Fine of Rs. 500/-
4. Raj Kumar Under Section 324/149 of IPC: 2 years R.I.
and Fine of Rs. 1000/-
Under Section 452 of IPC: 1 year R.I. and
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Fine of Rs. 1000/-
Under Section 147 of IPC: 1 year R.I. and
Fine of Rs. 500/
5. Jetha Ram Under Section 324/149 of IPC: 2 years R.I.
and Fine of Rs. 1000/-
Under Section 452 of IPC: 1 year R.I. and
Fine of Rs. 1000/-
Under Section 147 of IPC: 1 year R.I. and
Fine of Rs. 500/-
10. Learned counsel for the appellants submitted that during
investigation/trial, appellants have remained under detention as
below:
S.No Name Period Total
.
1. Babu Lal From 20.03.1992 to 26.03.1992 12 Days
From 27.09.1996 to 01.10.1996
2. Rajendra From 20.03.1992 to 26.03.1992 12 Days
From 27.09.1996 to 01.10.1996
3. Hari Shanker From 20.03.1992 to 26.03.1992 13 Days
From 31.10.1995 to 03.11.1995
From 30.09.1996 to 01.10.1996
4. Raj Kumar From 20.03.1992 to 26.03.1992 12 Days
From 27.09.1996 to 01.10.1996
5. Jetha Ram From 20.03.1992 to 26.03.1992 12 Days
From 27.09.1996 to 01.10.1996
11. Appellants have sought leniency in the quantum of
punishment awarded to them.
12. The offences were committed in March, 1992. The appellants
faced the agony of investigation and trial before the learned
Sessions Court till the passing of it's judgment/order dated
23.10.1996 followed by the instant appeal with the sword of
punishment hanging on their heads. Arrest memos show birth
year of Babu Lal (1973), Jeth Mal (1972), Rajinder son of Anna
Ram(1973), Hari Shankar (1970) and RajKumar son of Ram
Chander (1974). At the time of occurance, appellants Jeth Mal and
Hari Shankar were in early twenties and remaining three were still
in their teens. It is not in dispute that the appellants were first-
time offenders.
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13. In this context, it would also be pertinent to have a look at
Sections 360 and 361 of the Code of Criminal Procedure, as well
as Section 4 of the Probation of Offenders Act. For ready
reference, relevant of the aforesaid Sections are reproduced here
in below :-
"SECTION 360 AND 361 OF CODE OF CRIMINAL
PROCEDURE:
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.
x-x-x--x-x-x"
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, but has not done so, it shall record
in its judgment the special reasons for not having done so.
SECTION 4 OF THE PROBATION OF OFFENDERS 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 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
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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.
x-x-x-x-x-x"
(emphasis supplied)
14. Section 360 of the Code of Criminal Procedure, 1973
embodies the reformative and rehabilitative philosophy of criminal
jurisprudence. The provision empowers the Court, in appropriate
cases, to release certain categories of offenders either after due
admonition or on probation of good conduct instead of sentencing
them to imprisonment. The legislative intent underlying Section
360 is to afford an opportunity for reformation to offenders who,
by reason of their age, antecedents, or the nature of the offence,
do not warrant incarceration and may instead be reclaimed as
responsible members of society.
15. Section 361 CrPC operates as a mandatory safeguard to
ensure that the discretion vested under Section 360 is exercised
judiciously. It casts a statutory obligation upon the Court to record
"special reasons" where it chooses not to extend the benefit of
probation in cases where the accused could have been dealt with
either under Section 360 CrPC or under the Probation of Offenders
Act, 1958. The use of the expression "shall record special reasons"
leaves no manner of doubt that the requirement is mandatory in
nature. Non-compliance with Section 361 vitiates the sentencing
exercise, as it reflects a failure to apply the reformative mandate
of the law.
16. On an equal parallel, Section 4 of the Probation of Offenders
Act, 1958 confers a wide and beneficent discretion upon the Court
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to release an offender on probation of good conduct where the
offence is not punishable with death or imprisonment for life. The
provision obliges the Court to have due regard to the
circumstances of the case, including the nature of the offence, the
character of the offender, and other attendant factors such as age,
antecedents, and the likelihood of reformation. The Probation of
Offenders Act is a special welfare legislation and, where
applicable, is intended to be liberally construed to advance its
object of preventing the conversion of youthful or first-time
offenders into hardened criminals.
17. Thus, the consistent position of law is that the provisions of
Section 360 CrPC and the Probation of Offenders Act are not
merely enabling but impose a corresponding duty upon the Court
to actively consider their applicability at the stage of sentencing.
Where the case falls within the permissible parameters of
probation, denial of such benefit must be supported by cogent,
specific, and special reasons.
18. Applying the aforesaid statutory scheme to the facts at hand,
it is evident that the appellants were of a young age at the time of
commission of the offence, were first-time offenders, and were
convicted of offences not punishable with death or imprisonment
for life. These factors squarely attracted the consideration of
Section 360 CrPC and Section 4 of the Probation of Offenders Act.
In such circumstances, the learned trial court was duty-bound to
consider the grant of probation and, in the event of denial, to
record special reasons as mandated under Section 361 CrPC. The
failure of the trial court to advert to these provisions and its
omission to record any specific or special reasons for denying the
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benefit of probation amounts to a clear error of law. Such an
omission defeats the very object of the reformative sentencing
framework envisaged by the legislature.
19. Therefore, having duly considered the aforesaid position of
law and keeping in view of the facts and circumstances of the
case, it would have been appropriate, if at the relevant time,
learned trial Court had extended the appellants benefit of release
on probation of good conduct for about a year or so. Instead of
that, however, it sentenced them to various terms of
imprisonment as noted above and rather adopted erroneous
approach.
20. Now the appellants are in their fifties. For over 33 years,
they have suffered the ignominy, humiliation and pangs of
investigation, trial and uncertainty of their fate. They are stated to
be poor persons hardly able to support their families. The
appellants are not at fault for the delay in trial and for even longer
delay in the disposal of their appeals.
21. During investigation and trial for over four years, as also
during the pendency of their appeal in this Court for nearly 30
years, except for the aforesaid periods of their detention, the
appellants remained on bail. Barring the specific incident of
20.03.1992 (the subject matter of this appeal), nothing adverse
about their conduct during this period has come on record. Their
conduct during this prolonged interregnum shows that they are
not habitual offenders and do not pose a risk of recidivism.
22. I am also of the opinion that the purpose of the appellants'
release on probation on execution of usual bond and furnishing of
security for good conduct has been substantially served by their
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clean conduct for over 33 years. Asking them at this belated stage
to furnish bond and/or security for future good conduct would be
pushing a lost cause with paper work for all concerned. It would
be tilting at windmills with no purpose, and yet, unnecessarily
burdening the appellants with expenses and further loss of time.
23. In the peculiar premise, I am of the opinion that the ends of
justice would be met if the substantive sentences of appellants are
reduced to the extent of imprisonment/sentence already
undergone by each of the appellants respectively, while
maintaining the sentences in default of payment of fine. Ordered
accordingly.
24. With these directions and observations, the appeals are
disposed of.
(ARUN MONGA),J
37,38-DhananjayS/-
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