1. Appellant No.3 Mohd. Riaz alias Chand alias Jahid Khan died during pendency of this appeal, therefore, appeal filed by him was abated vide order dated 20.2.2020. Thus, at present I am concerned with the appeal of appellants 1 Gulam Nabi alias Baba and 2 Bashir.
2. Heard learned counsel for the appellants 1 and 2, learned A.G.A. and perused the record. Mr. Abdul Samad, Advocate has put in appearance on behalf of appellant No.2.
3. Present criminal appeal has been filed under Section 449(ii) CrPC against the judgment and order dated 26.9.2001 passed in Sessions Trial No.42 of 1992 whereby and whereunder the appellants 1 and 2 have been convicted and sentenced to 3 years R.I. under section 201 I.P.C., and to pay fine of Rs.500/-, with default provision. Since appeal against Mohammad Riaz has abated, the conviction recorded against him is not required to be recorded here.
4. At the outset, learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission only with respect to the order of sentence.
5. The appellants' counsel submits that according to prosecution case, on 12.10.1991 when the complainant Satish Chandra Shukla came back to his home from his duty, he found that members of his family were searching his daughter Aradhana alias Anu, aged about eight years. She was missing since 3.30p.m.. Information was given to the police. The informant suspected complicity of the accused Pappu, Kallu, Baba alias Nabi, Bashir and Riyaz. Then he along with Abdul Aziz, Krishna Pal Singh, J.K. Chaudhari, O.P. Singh and others went to the Godown of Baba where he found blood on the ground in the room situated at the back portion of the godown.The undergarment of the child was also found lying there.
The complainant and other members of the locality apprehended Baba, Bashir and Riyaz while Pappoo and Kallu ran away. It was believed by the informant that the accused persons after committing rape, killed the child and hid her body. On this information, SI A.K. Singh along with other police personnel proceeded to the place of occurrence. After some time, the accused Nabi confessed the guilt and informed that accused Pappu and Kallu had attempted to commit rape on Kumari Anu, daughter of the inforamnt Satish Chandra inside the room situated of his godown and when she became unconscious, they killed her and when he along with Bashir and Chand came to the godown, They in order to disappear the evidence of the offence, wrapped her dead body along with concerned weapon in a bag and hidden the same inside the Kabad. This information was given by the accused in presence of witnesses Krishna Pal Singh, Sushil Dwivedi, Chandra Mani Pandey and Abdul Aziz Khan. The same confession was also made Mohd. Riyaz and Bashir. On the pointing out of the accused persons, the body of Kumari Anu was recovered and the accused were arrested for the offence punishable under sections 376, 302, 201 I.P.C. The recovery memo of the dead body was prepared on the spot. After conducting investigation, charge-sheet was filed.
6. The prosecution has produced P.W. 1 Satish Chandra Shukla. In his examination-in-chief, he has stated of the commission of the offence by the accused persons.
Smt. Sushila, P.W. 2 is the mother of the victim and a witness of fact. She has supported the prosecution case.
P.W.3 Gaush Moh, SSI is a formal witness. He proved Ext. Ka-1 recovery memo of the dead body, recovery memo of the alleged weapon, Ext. Ka-2, recovery memo of blood stained Kathari, undergarments of the victim, Ext. Ka-3, recovery memo of blood stained shirts of the accused persons, Ext. Ka-5 and also proved the recovery memo of blood stained and plain earth, Ex.Ka-4. He also proved material exhibits 1 to 7.
P.W.4 SI Avadh Kishore Tripathi is also a formal witness. He is the investigating officer of the case.
Statement under Section 313 of the accused was recorded. Their case is of denial.
7. Appellants' counsel submits that the case of the present appellants and the offence committed by them was distinct than the offence committed by Baba and Kalloo and therefore, the case was separated by the District Judge vide order dated 24.8.1998. He further submits that the offence under Section 201 I.P.C. is punishable only up to three years of sentence. It is further submitted that the incident had taken place in the year 1991.
8. Appellants' counsel submits that the appellants are not a previous convict. It is submitted that the appellants are the first offender and they may be given the benefit of provisions of the Probation of Offenders Act, 1958 (in short, 1958 Act). In this context, he relied on judgment of Supreme Court in Mohd. Monir Alam versus State of Bihar (2010)12 SCC 26 He further submits that in view of the facts and circumstances including the fact that the accused appellants have not been convicted previously for any offence, the trial court ought to have invoked the provisions of the Probation of Offenders Act, 1958.
The Trial Court did neither invoke the provisions of the aforesaid Act nor the provisions of Section 360 Cr.P.C. while sentencing the accused-appellants. The Trial Court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. or the provisions of 1958 Act, as provided in Section 361 CrPC.
Learned counsel for the accused-appellants submits that to that extent, the impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and therefore, it cannot be sustained.
9. Section 361 of the Code is required to be applied with or without the beneficial provisions i.e. Section 360 of the Code or provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying the beneficial provision in case the accused offender otherwise, is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act.
The accused-appellants 1 and 2 have 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 Section 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.
10. Learned AGA appearing for the State does not dispute the fact that accused-appellants are the first time offender and were not previously convicted in any other case. He also submits that in view of the express provisions of Section 360 Cr.P.C., considering the facts and circumstances, nature of the offence, the character of the accused-appellants and particularly, the time period which has lapsed since the date of incident, the benefit of Section 4 of 1958 Act can be granted in this case.
11. In view of the above facts and circumstances mentioned above, including the fact that the appellants do not have any criminal antecedent and are the first offender, as also the scope of section 4 of the Act, this appeal is dismissed by upholding the conviction against the accused-appellant. Thus, the judgment of conviction passed by the learned trial Court is upheld. However, the appellants are granted the benefit of Section 4 of 1958 Act.
12. The accused-appellants 1 and 2 are released on probation by giving them the benefit of section 4 of the Probation of Offenders Act. The said accused-appellants shall file personal bonds to the tune of Rs.20,000/- and two sureties each of the like amount, and they shall keep peace in the society and shall not commit any such offence in future. In case of breach of any such condition, the accused-appellants will subject themselves to undergo the sentences before the Trial Court as per law. The accused-appellants shall file the bonds within a period of one month from today.
13. Accordingly, the order of sentence is modified to the above extent.
14. Let a copy of this judgment as well as the record, if received, be transmitted to the concerned Trial Court forthwith for necessary compliance.
Order Date :- 30.7.2021/kkb/