(Reserved)
Court No. - 76
Case :- CRIMINAL APPEAL No. - 405 of 2012 Appellant :- Kallu Bhadauria @ Shivpal Singh And Others Respondent :- State of U.P.
Counsel for Appellant :- Anurag Shukla Counsel for Respondent :- Govt. Advocate Hon'ble Ajai Tyagi,J.
1. This appeal has been preferred against the judgement and order dated 21.01.2012 passed by Additional Sessions Judge, Court No.3, Etawah in S.T. No.16 of 2016 (State of U.P. Vs. Kallu Bhadauria and others) arising out of Case Crime No.54 of 2004, under Section 323 read with Section 34 IPC, Police Station-Barhpura, District- Etawah, by which appellants were convicted and sentenced under Section 323 read with Section 34 IPC for one year rigorous imprisonment whereas the appellants were acquitted under Section 307 read with 34 IPC.
2. The charge was framed under Section 307 read with Section 34 IPC against all the appellants. After conclusion of the trial, learned trial court found that no offence under Section 307 IPC is made out against the appellants and they were convicted and sentenced under Section 323 IPC read with Section 34 IPC.
3. Heard Shri Anurag Shukla, learned counsel for the appellants, Shri S.S. Sachan, learned AGA for the State and perused the record.
4. Learned counsel for the appellants submitted that appellants have not been convicted previously for any offence and they were the first time offenders. At the very outset, learned counsel for the appellants submitted that he is not challenging the judgement of trial court on merits but his submissions are confined only with respect to the order of sentence passed by learned trial court.
5. It is submitted that in view of the facts and circumstances of the case, the trial court ought to have invoked the provision of the Probation of Offenders Act, 1958 (herein after referred as 'the Act ,1958').
6. Learned counsel for the appellants submitted that the trial court neither invoked the provision of the Act, 1958 nor the provision of Section 360 Cr.P.C. while sentencing the appellants. It is also submitted that the trial court has not given any special reason for not invoking the Act of 1958, which was mandatory for the trial court as per the requirement of Section 361 Cr.P.C. If the court chooses not to apply either of the aforesaid provisions, it is required to give special reasons for not applying the aforesaid beneficial provisions.
7. Considering the 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 that is the provision of the Act of 1958 and the learned trial court was under a duty to consider the applicability of Section 360 Cr.P.C. or Section 3 or 4 of the Act of 1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or under the Act of 1958 were not applied then the trial court should have recorded special reasons for the same.
8. In the present case, the perusal of the judgement shows that the learned trial court though considered the claim of the appellants for the benefit of first time offender, but awarded the punishment and does not record any special reason for not granting the benefit of the first offender which is contravention of the provision of Section 361 Cr.P.C., wherein the duty has been cast upon the court that if it does not deal with the case under the provision of Section 360 Cr.P.C. or under the provision of Act, 1958, it shall record its judgement the special reasons for not having done so.
9. Therefore, I am of the view that learned trial court has committed an error in neither granting the benefit of the said provisions nor recording special reasons for not granting the benefit.
10. Learned AGA on the basis of record did not dispute the fact that the 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 and particularly, the time period which has lapsed since the date of the incident, the benefit of Section 4 of the Act of 1958 can be granted in this case.
11. In view of the aforesaid facts and circumstances, this appeal is accordingly, dismissed by upholding the conviction of the appellants. However, the appellants are granted the benefit of Section 4 of the Probation of Offenders Act, 1958. The appellants are released on probation, they shall file personal bond and two sureties each in the like amount of Rs.25,000/- within a period of one month from the receipt of the copy of this order and they shall keep peace in the society and shall not commit any offence in future. These bonds shall be for a period of one year. In case of breach of any of the above conditions, the appellants will be taken into the custody to undergo the sentence awarded by the trial court as per law.
12. Let a copy of this judgment and record be transmitted to the concerned trial court for ensuring the necessary compliance.
(Ajai Tyagi, J.) Order Date :-24.9.2021 Ashutosh Pandey