Allahabad High Court
Natthu And 8 Ors. vs State Of U.P. on 19 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 28 Case :- CRIMINAL APPEAL No. - 881 of 2003 Appellant :- Natthu And 8 Ors. Respondent :- State of U.P. Counsel for Appellant :- Mukesh Sharma,Abhishek Awasthi,Ram Saran Awasthi Counsel for Respondent :- Govt.Advocate Hon'ble Shree Prakash Singh,J.
1. Supplementary Affidavit filed today on behalf of the appellants is taken on record.
2. In compliance of the order dated 09-11-2022, on the report of Chief Judicial Magistrate,Barabanki, the instant appeal on behalf of the appellants no. 2,3,6 & 9 has been abated and thus, this appeal is being pressed on behalf of the appellants no. 1,4,5, 7 & 8 only.
3. Heard learned counsel for the appellants no. 1,4,5,7 & 8, Sri Nirmal Kumar Pandey, learned A.G.A. for the State and perused the material placed on record.
4. By means of instant criminal appeal, the Judgment and order dated 02-06-2003 passed by the learned Additional District Judge, Court No. 9, Barabanki in Sessions Trial No. 236 of 1995, whereby the appellants are convicted and sentenced under sections 325/149 I.P.C. for three years rigorous imprisonment, under sections 323/149 for one year rigorous imprisonment and under section 147 of I.P.C. for one year rigorous imprisonment and to pay fine of Rs. 500/-each, has been challenged.
5. The prosecution story, in brief, is that on 22-12-1992, due to an enmity in between the parties, when the accused, Natthu was cutting woods of the garden, wherein the uncle of the informant, the grandfather of the informant and the informant himself came over there and restrained the accused-appellant,Natthu, which put them in quarrel and the other accused persons came over there and started attacking with ''Lathi' ''Danda' Kanta, ''Pharsa' and ''Bhala' and as a result the injured persons have received serious injuries.
6. The aforesaid incident has been reported on 22-12-1992 at 07.45 P.M. by the informant namely, Sri Diwakar Ojha, who is also one of the injured witnesses. Thereafter, the injured persons were medically examined on 23-12-1992 and X-ray examination was also conducted on the same day.
7. The injuries received by the injured namely, Ram Prakash are extracted hereinunder :-
¼1½ QVk gqvk ?kko 2Xvk/kk lseh X ekal rd xgjk ukd ds Åij ekStwn FkkA ¼2½ QVk gqvk ?kko 4Xvk/kk lseh X gM~Mh rd xgjk] lj ds nkfgus fgLls ij tks fd nkfgus dku ls 8 lseh Åij ekStwn FkkA ¼3½ uhyxw fu'kku 8 lseh X rhu lseh lhus ds fiNys fgLls ij nkfguh rjQ ekStwn FkkA ¼4½ uhyxw fu'kku 5 X 3 lseh tks fd nkfgus dU/ks ds tksM+ ij ekStwn FkkA ¼5½ uhyxw fu'kku 6 X 2 lseh nkfguh dykbZ ds fiNys fgLls ij dykbZ ls 9 lseh Åij ekStwn FkkA ¼6½ pksV;qDr lwtu 10 X 6 lseh nkfgus i[kkSjs ds Åij ekStwn FkkA ¼7½ pksV;qDr lwtu 5 X 3 lseh nkfguh dykbZ ds tksM+ ls 2 lseh Åij ekStwn FkkA ¼8½ pksV;qDr lwtu 5 X 4 lseh ck;sa ?kqVus ds tksM+ ds vxys fgLls ij ekStwn FkkA ¼9½ uhyxw fu'kku 7 X 2 lseh nkfguh tk¡?k ds vxys fgLls ij ekStwn FkkA ¼10½ uhyxw fu'kku 4 X 3 lseh nkfgus@iSj ds vxys fgLls ij ekStwn FkkA ¼11½ uhyxw fu'kku 6 X 3 lseh SACRAL fgLls ij ekStwn FkkA
8. The injuries received by the injured namely, Ram Kumar, are extracted hereinunder :-
¼1½ uhyxw fu'kku 3 X 2lseh lhus ds fiNys fgLls ij jhM+ dh gM~Mh ds ikl xnZu ls uhps ekStwn FkhA ¼2½ uhyxw fu'kku 5 X 2lseh lhus ds nkfgus fgLls ds ihNs ekStwn FkhA lHkh pksVs lk/kkj.k Fkh fdlh l[r ,oa dqUnvkys ls vkuk laHko FkhA pksVs rkth FkhA
9. The injuries received by the injured namely, Diwakar Ojha, are extracted hereinunder :-
¼1½ uhyxw fu'kku 4 X3 lsehs ck;s gkFk ds vUn#uh fgLls esa dykbZ ds tksM ls 7 lseh Åij ekStwn FkhA ¼2½ pksV;qDr lwtu 2X1 lseh gkFk dh chp dh m¡xyh ij ekStwn FkhA ¼3½ [kjk'k 5 X 2 lseh nkfgus gkFk ij tks fd dqguh ds tksM+ ls 6 lseh Åij ekStwn FkhA ¼4½ nnZ dh f'kdk;r ihB ds ck;s fgLls ij ,oa dej esa crkbZ FkhA
10. After the aforesaid incident, the matter was investigated and the chargesheet was submitted and thereafter, the charges were framed under sections 147, 148, 308, 325, 323 of I.P.C.
11. The prosecution produced the witnesses as P.W.-1 namely, Diwakar Ojha, the informant and the injured, P.W-2, Ram Prakash, the uncle of the informant, P.W.-3, Dr. Om Prakash, the Radiologist, P.W.-4, Ramayan Pandey, Head Constable, P.W.-5, S.I.-Vikram Virendra Singh, the Investigating Officer, P.W.-6, Dr. Narendra Dutt,Medical Officer, who conducted the medical examinations of the injured persons namely, Ram Prakash, Ram Kumar, Shiv Lali and Diwakar. P.W.-7, Shiv Lali,aunt of the informant, P.W.-8, Ram Kumar, grandfather of the informant and P.W.-9, Ramesh Kumar Ojha, independent witness.
12. The opinion of the doctor with respect to the injuries of injured, Ram Prakash is that the same has been caused with hard and blunt object as there were 11 injuries on his body. Except apart the injuries no. 5,6 & 7, so far as the opinion with respect to the injured no. 2 namely Ram Kumar is concerned, those are simple in nature and caused by the hard and blunt object. The doctor has also opined with respect to the injuries sustained by the injured, Diwakar Ojha that there are four injures and those are simple in nature and caused by the hard and blunt object and the injuries caused to injured, Shiv Lali are also simple in nature.
13. Learned counsel appearing for the appellants submits that in a sudden provocation, the incident is said to have taken place on 22-12-1992 at 05.00 P.M. He submits that though the motive behind the incident has been shown that there was an enmity in between the parties, but, that does not show any strong motive for committing offence under section 307 of I.P.C. He also added that the matter is in between the family members and there seems to be sudden provocation due to which the incident had taken place. He also added that the incident which is said to have taken place, is infact not caused by the said attack, but, due to an accident which occurred with the tractor and trolley elsewhere and thereafter, four persons have sustained injuries though the same has been shown to be caused by the appellants/accused persons. The nature of the injuries caused are simple in nature and that is why the trial court while passing the Judgment and order dated 02-06-2003, has sentenced the appellants-accused under sections 325 & 323 of I.P.C. He also added that Ram Kumar Ojha, who was produced as P.W.-9 by the prosecution is not an eye witness as he reached over there after hearing the noise though his statement was treated by the trial court as an eye witness. He also added that the first information report shows that the injured persons were also attacked by the sharp edged weapons,but, there is no such injuries as the doctors opined that all the injuries are caused by a hard and blunt object and there is no explanation in the statements of any of the prosecution witnesses, which falsifies the story of the prosecution. The appellants also appeared before the Prosecuting Officer and their statements were also recorded under section 313 Cr.P.C.
14. Further submission is that there are certain other discrepancies and the trial court has not considered and appreciated the evidences in its right prospective and there are material doubts in the story of the prosecution and thus, the Judgment and order dated 02-06-2003, passed by the trial court is liable to be set aside.
15. On the other hand, learned A.G.A. appearing for the State has vehemently opposed the contentions aforesaid and submits that after thorough investigation, it was found that the appellants/accused were involved in committing offence and thus, the Investigating Officer has submitted the Chargesheet against the appellants-accused and the charges were framed and after thorough investigation, it was found that the accused-appellants were involved in committing offence. He further submits that the case of the prosecution is intact after the prosecution witnesses were produced and were examined and they all supported version of the prosecution. The injuries caused to the injured persons are grave in nature and there are 11 injuries over one of the injured person, which shows that there was an intention to kill the injured persons as repeatedly the blows were over the body of the injured persons. Thus, he submits that the Judgment and order has rightly been passed by the trial court after considering and appreciating the evidences adduced by the prosecution and the other side and therefore, no interference is warranted in the Judgment and order passed by the trial court.
16. In rejoinder, learned counsel for the appellants-accused, submits that the instant matter is of the year 1992 and the appellants-accused, complainant and the other persons belongs to one village and due to sudden provocation, the aforesaid incident has occurred and about 30 years have passed and the appellants-accused are leading peaceful life and they have settled themselves in the society and no fruitful purpose would be served to send them back to jail after passing of such a long period of time. He further added and has drawn attention of this court that the appellants-accused have never committed any offence except apart the present offfence and the same has been mentioned in paragraph no. 7 of the Supplementary Affidavit filed by the appellants-accused. He thus, submits that the appellants are entitled for the benefit envisaged under section 4 of the Probation of Offenders Act and their prayer is that the benefit of the same may be granted to them.
17. Considering the submissions of learned counsel for the parties and after perusal of material placed on record, it is evident that there are injuries found over the body of the injured persons and some of the injured persons have received repeated blows of the weapons over their body as one of the injured has received about 11 injuries. Further, there are four injured persons and even the appellants-accused have beaten the women of the family. The prosecution has also produced about 9 witnesses and those were examined and they all have supported the version of the prosecution. Prima-facie, there seems to be no deviation or doubt in the story of the prosecution and therefore, no interference is warranted in the Judgment and order dated 02-06-2003 passed by the trial court.
18. Except apart the merit of the case, so far as the prayer of learned counsel for the appellants for according benefit of Section 4 of the Probation of Offenders Act is concerned, it is essential to discuss the legal position and the law propounded by the Apex Court.
19. In the context above, Sections 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of probation to first offenders. Both these sections are reproduced as under :-
"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:
Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
(2) Where proceedings are submitted to a Magistrate of the first class as provided by sub-section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.
(3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years, imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
(6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section.
(7) The Court, before directing the release of an offender under sub-section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions.
(8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension.
(9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence.
(10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or 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.
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, 135 but has not done so, it shall record in its judgment the special reasons for not having done so."
20. There is one central Legislation on the subject in the name of ''Probation of Offenders Act Act 1958', relevant Section 3 and 4 of are extracted hereunder:-
"3. Power of court to release certain offenders after admonition.--
When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous conviction is proved against him 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 so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.
Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.
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 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) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
21. There is one more legislation on the subject namely ''Uttar Pradesh First Offenders' Probation Act, 1938'. Section 3 and 4 of this Act are reproduced herein below:-
"3. Power of court to release certain offenders after admonition. - In any case in which a person is found guilty of the offences of theft, dishonesty, misappropriation or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two years imprisonment and no previous conviction is proved against him, the court by which he is found guilty may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender, and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed instead of sentencing him to any punishment, release him after due admonition.
Power of court to release certain offenders on probation of good conduct. - (1) When any person is convicted of an offence not punishable with death or transportation 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, antecedents or physical or mental condition 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 :
Provided that the court shall not direct the release of an offender under this section unless it is satisfied that the offender, or his surety, has a fixed place of abode and regular occupation in the place for which the court acts, or in which the offender is likely to live during the period named for the observance of the conditions :
Provided also that if a person under twenty-one years of age is convicted of any offence under the Indian Penal Code, or any other enactments prescribed in this behalf under rules made by the [State Government], which is punishable with imprisonment not exceeding six months, the court shall take action under this section unless, for special reasons to be recorded in writing, it does not consider it proper to do so.
(2) Where the offender ordered to be released under sub-section (1) is under twenty-four years of age, the court may make a supervision order directing that such offender shall be under the supervision of such probation officer as may be named in the order during the period specified therein and imposing such other conditions for securing such supervision as may be specified in the order :
Provided that the period so specified shall not extend beyond the date on which, in the opinion of the court, the offender will attain the age of twenty-five years.
(3) A court making an order under sub-section (2) shall require the offender, before he is released to enter into a bond, with or without sureties, to observe the condition with respect to residence, abstention from intoxicants and any other matters as the court may, having regard to the particular circumstances of the case, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(4) A court making an order under sub-section (2) shall furnish to the offender and the sureties, if any, a notice in writing stating in simple terms the conditions of the bond.
22. A perusal of these legislations will leave a student of Law in a confused state of mind. All these legislations are dealing with the same subject and on first sight looks encroaching each other. Looking closely, one may get that Section 360 of the Code relates only to persons 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 ,may be released on probation ,taking into consideration the facts and circumstances of the case, character of the offender and the gravity of the offence committed by him. Section 4 of the Probation of Offenders Act is having a much wider scope as it applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. If I look further deep into section 360 of Cr.P.C. we will find that in sub section (10) it has been provided that nothing in this Section shall affect the provisions of the Probation of Offenders Act."
23. A Division Bench of the Allahabad High Court in State of Uttar Pradesh v. Misri Lal and others reported in 1982 CRI. L. J. 1420 held as under :-
"26- ...................The application of Section 360 in Utter Pradesh was taken away by an Ordinance of the year 1975. The Ordinance was repealed and replaced by the Criminal P.C. (Uttar Pradesh Amendment) Act, No. 16 of 1976. This Act received the assent of the President on 30-4-1975 and published in the Utter Pradesh Extraordinary Gazette dated 1-5-1976. Section 12 of this Act repealed the Ordinance and laid down that notwithstanding such repeal, anything done or any action taken under the Ordinance shall be deemed to have been done or taken under the provisions of this Act as if this Act had come into force on November, 28, 1975. The learned trial judge decided the case on 2-2-1976. Section 10 of the Amending Act No. 16 of 1976 amended S.484 of the Code and inserted the following clause (e) after clause (d) :-
"(e) .... the United Provinces First Offenders' Probation Act 1938......shall continue in force in the State of Uttar Pradesh .... and accordingly the provisions of Section 360 of this Code shall not apply to that State and the provisions of Section 361 shall apply with the substitution or reference to the Central Acts named therein by references to the corresponding Act in force in that State".
24. Section 361 of the Cr.P.C. lays down that where in any case the Court could have dealt with an accused person under S.360 or under the provisions of the Probation of Offenders Act, 1958, or a youthful offender under the Children Act, 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 judgement the special reasons for not having done so.
25. It follows from this provision read with clause (e) of S.484 mentioned above, the Court is required to record special reasons for not extending the benefit of the provisions of the Utter Pradesh First Offenders' Probation Act, 1938."
26. Thus, provisions of U. P. Probation Of First Offenders' Act shall be followed, in the geographical area where that has been made applicable and not Section 360 of the Cr.P.C. In this way enforcement of Probation Act in some particular area, thus excludes the applicability of the provisions of Section 360 of the Code in that particular area,however it will be the bounden duty of the Court to consider as to why not to proceed to grant the benefit of Probation of Offenders Act, as provided under Section 361 of the Cr.P.C.
27. Coming to the point of desirability of extending the benefit of Probation Act to the Accused/Revisionist in Sitaram Paswan and Anr v. State of Bihar, reported in AIR 2005 SC 3534 Supreme Court held as under:-
"For exercising the power which is discretionary, the Court has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. Thebenefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may" clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."
28. In AIR 2017 SC page 660, Mohd. Hashim v. State of U.P and Ors. The Supreme Court opined as under:-
"20-.........In Rattan Lal v. State of Punjab AIR 1965 SC 444. Subba Rao, J., speaking for the majority, opined thus:-
"The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated, the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the conditions laid down in the appropriate provisions of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case; including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Sections 3 and 4 of the Act."
29. In view of the aforesaid legal provisions and the plea raised by the learned counsel for the appellants, it is apparent that the incident which had taken place, is of prior to 30 years and the appellants-accused and the complainant belongs to the same family. Further, they are leading a respectful and decent life in the society and they have settled themselves.
30. This court has also considered that pre or post trial except, apart from the present case, there is no other criminal antecedent of the appellants and therefore, this court is of the considered opinion that the benefit of the Section 4 of the Probation of Offenders Act can be given to the appellants.
31. Consequently, so for as the conviction part is concerned, this Court does not find any illegality, perversity or irregularity in the Judgment and order dated 02.06.2003 passed by the trial Court, but, keeping in view the submissions and discussions made hereinabove, the sentence inflicted on the appellants-accused requires modification.
32. Thus, the appeal is hereby partly allowed with the following modifications:-
33. The conviction of the accused-appellants by the trial Court is up-held. The sentence of the appellants accused is modified to the tune that they are provided the benefit of U.P. Probation of Offenders Act and they are released on probation on the condition that they will maintain peace and good conduct for further two years from today and they shall file two sureties each to the tune of Rs.30,000/- along with their personal bonds before the trial court and also an undertaking to the effect that they shall maintain peace and good behavior. Further the appellants will also deposit Rs. 20,000/-before the Court below within two months which shall be released in favour of the victims/injured persons or their legal heirs. In case of breach of any of the conditions mentioned above, the appellants will be subjected to undergo the sentence as directed by the trial Court. The bonds aforesaid will be filed by the accused-appellants within two months from today before the trial Court.
34. The office is directed to send certified copy of this order to the trial Court concerned for necessary compliance.
35. Let the trial Court record be returned back to the trial Court.
Order Date :- 19.4.2023 AKS