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2023 DIGILAW 941 (ALL)

Ajay Kumar v. State of U. P.

2023-04-07

RENU AGARWAL

body2023
JUDGMENT : 1. Instant revision is filed under Section 397/401 Cr.P.C. against the judgment and order dated 8.02.2008 passed by Additional sessions Judge/Special Judge, Lucknow in Criminal Appeal No. 208 of 2000, Guddu @ Ratan Lal and another Vs. State of U.P. dismissing the appeal preferred against the judgment and order dated 19.10.2000 passed by Vth Additional Chief Judicial Magistrate, Lucknow in case No. 1793 of 1996 under Sections 457, 380 and 411 I.P.C. sentencing revisionist to undergo one rigorous imprisonment under Section 411 I.P.C. 2. As per prosecution story, F.I.R. was lodged against unknown persons on the ground that someone has stolen Shri Ram Honda Model EBK 1200 Engine No.0899537 Generator set of red colour by breaking the door of the shop in the night of 10/11-03-1996. A report was registered at police station on 21.03.1996 in crime No. 81 of 1996 under Section 457 and 380 I.P.C. 3. The investigation was conducted by investigating officer-Y.P. Singh, who recovered the alleged generator from the joint possession of Arun Kumar, Guddu and Ajay Kumar and prepared recovery memo thereof, recorded the statements of witnesses, prepared site plan and submitted charge-sheet under Section 457, 380 and 411 I.P.C. The trial court framed the charges under the above mentioned Sections and read over to accused to which the accused abjured from the charges and claimed to be tried. 4. Prosecution adduced P.W.1-Rajendra Kumar Agarwal (complainant), P.W.2-Constable Ghanshyam Yadav, P.W.3-S.I., Bedhadak Singh, P.W.4-S.I., Yogendra Pal Singh, investigating officer and P.W.5-R.K. Singh, Station Officer. 5. Statements of accused were recorded under Section 313 Cr.P.C. wherein the accused denied all the allegations levelled against them and stated that nothing incriminating has been recovered from their possession and witnesses have wrongly implicated them and the false evidence is given by witnesses against them. No defence witness was produced, however, opportunity to produce defence evidence was provided. 6. After hearing the arguments on behalf of the accused and ADGC, learned trial court acquitted the accused Guddu and Ajay Kumar for the offences punishable under Section 457 and 380 I.P.C and convicted them under Section 411 I.P.C. and punished them with rigorous imprisonment for one year. It is also mentioned in the operative portion of the judgment that the accused have remained in jail since 22.03.1996 to 11.04.1996 and the period already undergone in jail shall be adjusted towards the sentence. 7. It is also mentioned in the operative portion of the judgment that the accused have remained in jail since 22.03.1996 to 11.04.1996 and the period already undergone in jail shall be adjusted towards the sentence. 7. Learned counsel for the revisionist submitted that the revisionist is not challenging the impugned order confirming the order of conviction passed by the Trial Court and he confined himself only with respect to the order of sentence passed by the learned trial court. It is further submitted that revisionist is not a previous convict and he has no criminal history apart from this case, therefore, in view of the above facts and circumstances, trial court ought to have invoked the provisions of Probation of Offenders Act, 1958. It is submitted that learned Trial Court neither invoked the provisions of Probation of Offenders Act nor the provisions under Section 360 Cr.P.C. while sentencing the accused-revisionist. Trial Court has not given any specific reason why the present accused is not given the benefit of above mentioned provisions. Therefore, the judgment and order passed by the learned Trial Court suffers from serious illegality as the order of learned trial court is violative of provisions under Section 361 Cr.P.C., therefore, the impugned judgment is liable to be set-aside. 8. Section 361 Cr.P.C. is read as under:- “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.” 9. From the perusal of the judgment, it transpires that learned Trial Court, while dealing with the sentence recorded that the Generator Set, recovered from the possession of accused was very costly and, therefore, the benefit of Section 4 of Probation of Offenders Act cannot be given to the accused. 10. From the perusal of the judgment, it transpires that learned Trial Court, while dealing with the sentence recorded that the Generator Set, recovered from the possession of accused was very costly and, therefore, the benefit of Section 4 of Probation of Offenders Act cannot be given to the accused. 10. Learned AGA appearing on behalf of the State did not dispute the fact that accused-revisionist is a first time offender and was not previously convicted in any other case and the time period which has lapsed since the date of incident, the benefit of Section 4 of the Probation of Offenders Act can be granted in this case. 11. It is apparent from the impugned judgment that learned Trial Court mentioned the special reason to deny the benefit of section 4 of the probation of offenders act to the revisionist but learned trial court did not considered the fact that this is a first case against the accused and he is not convicted earlier and merely on the ground that the generator, which was too costly was recovered from the possession of accused-appellant, the benefit of section 4 of the probation of offenders act is withheld. Hence, learned learned trial court did not consider the facts and circumstances of the case as a whole, the age of revisionist, the possibility for his improvement and passed the judgment without considering the above mentioned circumstances. 12. In view of the facts and circumstances and considering the scope of Section 4 of the Probation of Offenders Act, and the time period which has elapsed since the date of occurrence, the Revision is according dismissed by upholding the conviction of accused-revisionist. However, he is granted the benefit of Section 4 of the Probation of Offenders Act. 13. Revisionist is directed to appear before the court concerned and CJM concerned is directed to extend the benefit of Section 4 of the Probation of Offenders Act to the accused-revisionist and release him on probation on the execution of personal bond and sureties to the tune of Rs. 20,000/-(Twenty thousand) along with undertaking to keep peace and tranquility in society and not to commit any offence in future for one year. 14. Accused-revisionist shall appear before the CJM within a period of one month from today for compliance of the present order. 15. 20,000/-(Twenty thousand) along with undertaking to keep peace and tranquility in society and not to commit any offence in future for one year. 14. Accused-revisionist shall appear before the CJM within a period of one month from today for compliance of the present order. 15. As provided under Section 5 of the Probation of Offenders Act, revisionist shall pay a compensation of Rs. 15,000/-(Fifteen thousand) in DLSA within one month from today. 16. In case of breach of any of the said condition, the accused-revisionist shall subject himself to undergo the sentence. 17. Let the copy of the judgment as well as lower court record be transmitted to concerned trial forthwith for necessary compliance.