# Phool Chandra v. State of U.P

- **Citation:** (2023) 4 ILRA 956
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Criminal Appeal No. 1817 of 1995
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chandra-v-state-of-u-p-50058
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections
395,
410,
411
&
412
-
Dishonestly receiving stolen property -
The Code of Criminal Procedure, 1973 -
Sections 313, 360 - The Arms Act, 1959 -
Section 25 - The Probation of Offenders
Act, 1958 - Sections 4, 5 - Appeal against
conviction - As per FIR - in the night of
15/16.12.1998, accused persons along
with two or three other persons entered in
house
of
informant
-
The
accused
committed theft of clothes which were
being sold by informant - The informant
lodged F.I.R. - Prosecution examined
P.W.1 to P.W.7 - Held, the arrest of
appellant and recovery of stolen quiltcover, sarees and cloth has been proved
by evidence of P.W.7, who had arrested
the appellant and recovered articles from
his possession - PW.7 proved recovery
memo relating to appellant's arrest and
recovery memo of stolen property - PW.7
also proved articles which have been
recovered from possession of appellant -
P.W.7 has also proved by his evidence the
arrest of appellant who was carrying a bag
containing the articles - P.W.3, informant
has identified the articles as stolen from
his house - In cross-examination of
P.W.3, P.W.5 and P.W.7 nothing emerges
which
may
raise
doubt
about
their
evidence - The evidence of PW.5 has not
been challenged on behalf of appellant in
his cross-examination - The evidence of
PW.5 has been corroborated by evidence
of P.W.7 - The informant was a hawker
4 All. Phool Chandra Vs. State of U.P.
957
who used to carry clothes and sell them
on streets - The articles recovered from
possession of appellant were new clothes
- The appellant has not claimed ownership
of those articles - These articles were
recognized
by
informant
in
test
identification proceeding - Therefore, the
trial court has rightly convicted appellant
u/s 411 IPC - Hence, no illegality in the
impugned order and conviction is upheld
(2, 3, 4, 6, 23, 24, 25, 35)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

956 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 323, 452, 506 IPC and has
released the accused persons on executing a
bond before the Magistrate for maintaining
good behaviour and peace for the period of
six months.

46. In the light of above discussion, I
find
no
illegality,
irregularity
or
impropriety nor any jurisdictional error in
the impugned judgment and order of the
court below. The conviction recorded by
the court below u/s 147, 148, 323/149 &
324/149 I.P.C. is upheld and is not required
to be disturbed.

47. Since the informant/victim and
accused belong to same village and are
neighbours and accused did not have any
criminal antecedents to their credits, the
incident has taken place in the year 1985
and more than 36 years have passed since
then, there is no ground to interfere in the
probation granted by the trial court to the
accused.

48. In the facts and circumstances of
the case, there is no sufficient ground to
allow the criminal appeal. The criminal
appeal is accordingly, dismissed.

49. Let a copy of the judgement along
with trial court record be sent to the trial
court for execution of the trial court order
which has become final. The appellantsaccused shall appear in the trial court
within two months from the date of
judgement and file requisite probation
bonds and personal bonds accordingly.
----------
(2023) 4 ILRA 956
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 1817 of 1995

Phool Chandra ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ajay Singh, Nisha Singh Parihar, Sri R.P.
Parihar

Counsel for the Opposite Party:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections
395,
410,
411
&
412
-
Dishonestly receiving stolen property -
The Code of Criminal Procedure, 1973 -
Sections 313, 360 - The Arms Act, 1959 -
Section 25 - The Probation of Offenders
Act, 1958 - Sections 4, 5 - Appeal against
conviction - As per FIR - in the night of
15/16.12.1998, accused persons along
with two or three other persons entered in
house
of
informant
-
The
accused
committed theft of clothes which were
being sold by informant - The informant
lodged F.I.R. - Prosecution examined
P.W.1 to P.W.7 - Held, the arrest of
appellant and recovery of stolen quiltcover, sarees and cloth has been proved
by evidence of P.W.7, who had arrested
the appellant and recovered articles from
his possession - PW.7 proved recovery
memo relating to appellant's arrest and
recovery memo of stolen property - PW.7
also proved articles which have been
recovered from possession of appellant -
P.W.7 has also proved by his evidence the
arrest of appellant who was carrying a bag
containing the articles - P.W.3, informant
has identified the articles as stolen from
his house - In cross-examination of
P.W.3, P.W.5 and P.W.7 nothing emerges
which
may
raise
doubt
about
their
evidence - The evidence of PW.5 has not
been challenged on behalf of appellant in
his cross-examination - The evidence of
PW.5 has been corroborated by evidence
of P.W.7 - The informant was a hawker
4 All. Phool Chandra Vs. State of U.P.
957
who used to carry clothes and sell them
on streets - The articles recovered from
possession of appellant were new clothes
- The appellant has not claimed ownership
of those articles - These articles were
recognized
by
informant
in
test
identification proceeding - Therefore, the
trial court has rightly convicted appellant
u/s 411 IPC - Hence, no illegality in the
impugned order and conviction is upheld
(2, 3, 4, 6, 23, 24, 25, 35)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Mir Naqvi Askari Vs CBI 2 (2009) 15 SCC 643

2. Trimbak Vs St. of M. P., AIR 1954 SC 39

3. Subhash Chand & ors. Vs St. of U.P., 2015
Lawsuit (Alld) 1343

4. St. of Maharashtra Vs Jagmohan Singh Kuldip
Singh Anand & others (2004) 7 SCC 659

5. Jagat Pal Singh & ors. Vs St. of Har., AIR
2000 SC 3622

(Delivered by Hon'ble Surendra Singh-I, J.)

Heard Sri R.P. Singh Parihar, learned
counsel for the appellant and learned
A.G.A. for the State.

2. This criminal appeal has been
instituted against the judgement and order
dated
20.10.1995
passed
by
IVth
Additional Sessions Judge, Fatehpur, in
Sessions Trial No. 508 of 1990, State Vs.
Deshraj Singh and others, arising out of
Case
Crime
No.
91
of
1988
u/s
395/397/412 and connected Sessions Trial
No. 286 of 1995, State Vs. Phool Chandra,
arising out of Case Crime No. 94 of 1988
under Section 25 of Arms Act, P.S.-
Jafarganj, District- Fatehpur. The trial court
convicted
and
sentenced
co-accused
Deshraj Singh Thakur, Shiv Kumar Yadav
and Lakhan Lal under Section 380 IPC.
They were acquitted from the charge under
Section 395 IPC. The trial court convicted
appellant accused Phool Chandra under
Section 411 IPC and sentenced him two
years rigorous imprisonment. The trial
court acquitted Phool Chandra from the
charge under Sections 395 and 412 IPC.
The trial court also acquitted appellant
accused under Section 25 of the Arms Act.
There is no criminal appeal filed by the
State or informant against acquittal of
appellant-accused u/s 395 IPC and 25 Arms
Act. Thus, the trial court's order acquitting
the accused u/s 395 I.P.C. and 25 Arms Act
has become final.

3. Briefly stated the facts of the
prosecution case are that in the night of
15/16.12.1998, accused Deshraj Singh,
Thakur, Shiv Kumar Yadav and Lakhanlal
Lohar along with two or three other persons
entered
in
the
house
of
informant,
Murlidhar through a wooden ladder. Due to
the noise of knocking, the informant,
Murlidhar awoke and saw that about 5 or 6
persons including the above accused were
carrying
household
material
after
committing the theft. The informant raised
alarm then his neighbours, Rajwa, Banshi
and Faujilal came on the spot, who saw the
accused carrying the household materials.
The witnesses chased them but the accused
could not be apprehended. The accused
committed theft of the clothes which were
being sold by the informant. Later on, the
informant prepared a written report and
went to the police station on 16.12.1988,
where he lodged the F.I.R. at 9.30 a.m. The
case was registered as Case Crime No. 91
of 1988 u/s 457/380 I.P.C. and investigation
was started.

4. On 26.12.1988, Station Officer, S.I.
Sukhvinder
Singh
along
with
some
958 INDIAN LAW REPORTS ALLAHABAD SERIES
constables was returning to the police
station after taking a round of the area.
When the police party reached at the curve
of Lalpur, they saw a person. When the
police party asked him, then he turned
backside. Suspecting the miscreant, the
police surrounded and apprehended him.
On enquiry, he told his name, Phool
Chandra and a search was made. Then one
country-made pistol, along with two live
cartridges
were
recovered
from
his
possession. He was having a bag in which
two cotton sarees, two quilt cover and one
piece of cloth were recovered. During
interrogation, the accused admitted that he
was
also
amongst
the
dacoits
who
committed
dacoity
at
the
house
of
Murlidhar in the night of 15.12.1988. The
recovered material was kept under separate
sealed cover. The recovery memo was
prepared and the accused was also kept
Bapurdah. The recovered material and the
accused were brought at the police station
where the recovered material was deposited
in the Malkhana and the accused was kept
in the lock up. The F.I.R. was lodged and a
case was registered against accused, Phool
Chandra under Section 25 of the Arms Act
at Crime No. 94/88. The investigation of
this case was also started with Crime No.
91
of
1988.
During
investigation,
identification of the recovered looted
property
was
conducted.
During
the
investigation, the case was converted into
u/s
395/397
and
412
I.P.C.
After
completing the investigation, charge-sheet
was
submitted
on
01.03.1989
u/s
395/397/412 I.P.C. against all the accused.
A separate charge-sheet u/s 25 of Arms Act
against accused, Phool Chandra was also
submitted
on
19.2.1989.
During
investigation, the accused were arrested.
Thereafter, the accused were committed to
the Court of Sessions to face trial.

5. On 21.11.1990, the trial court
framed charge under Section 395 IPC
against co-accused Deshraj Singh, Shiv
Kumar Yadav and Lakhanlal. The trial
court also framed charge against appellant
accused Phool Chandra under Section 395,
412 IPC and Section 25 of the Arms Act.
The appellant accused denied the charges
and pleaded not guilty.

6. In order to prove the charges framed
against
the
accused,
the
prosecution
examined
P.W.1
Raj Wajdwa,
P.W.2
Bhaiyaddin,
P.W.3
Murlidhar,
P.W.4
Constable
Ramesh
Chandra,
P.W.5
Constable Chakki Lal, P.W.6 Suraj Bhan
Srivastava, Executive Magistrate and
P.W.7
S.I.
Sukhvinder
Singh.
The
prosecution also produced written report,
chik report, copy of G.D., site plan,
recovery memo of country-made pistol,
cartridges and looted property, which
were recovered from the possession of
accused, Phool Chandra, chik report of
crime no. 94/1988 u/s 25 of the Arms Act,
copy of G.D., site plan and charge-sheet
in
documentary
evidence.
The
prosecution also produced sanction of the
District
Magistrate,
Fatehpur,
for
prosecution of accused Phool Chandra u/s
25 of Arms Act.

7. The statement of accused, Phool
Chandra, was recorded u/s 313 Cr.P.C. in
which he denied the allegations and stated
that he has been falsely implicated in this
case by the police due to enmity. Accused,
Phool Chandra denied recovery of countrymade pistol and cartridges and looted
property from his possession and stated that
he was arrested from his house and falsely
implicated by the police. No defence
evidence was produced by the accused
appellant Phool Chandra.
4 All. Phool Chandra Vs. State of U.P.
959

8. The chik F.I.R. of this case was
prepared by P.W.4 Constable Ramesh
Chandra Singh. He proved the chik report
(Ext.Ka.2) and stated that on 16.12.1988,
he was posted at Police Station- Jafarganj.
He prepared chik report on the basis of
written report produced by the informant.
He also made entries in the G.D., the copy
of which is (Ext.Ka.3).

9.
In
cross-examination,
P.W.4
Constable Ramesh Chandra Singh stated
that in his opinion, prima facie case was
made u/s 457/380 I.P.C., therefore, the case
was registered u/s 380/457 I.P.C. The
information was transmitted to the Superior
Officers.

10. The investigation of this case was
started by S.I. Bazilal Yadav. P.W.7 Station
Officer, Sukhvinder Singh was also with
him when S.I. Bazilal Yadav visited the
place of occurrence and prepared site plan.
He also inspected the lantern of Murlidhar
and prepared its supurdaginama (Ext.Ka.6).
This witness also inspected the torches of
Rajwa and Faujilal and prepared their
supurdaginama which is (Ext.Ka.7). During
investigation, it was found that the case
falls u/s 395/397 I.P.C., therefore, on the
oral direction of the Circle Officer, the case
was converted u/s 395/397 I.P.C. and
investigation was transferred to P.W.7 S.I.
Sukhvinder Singh. Remaining part of
investigation was conducted by him.

11. PW 7 S.I. Sukhvinder Singh stated
in his evidence that during investigation on
26.12.1988, he along with other constables
was returning to the police station. When
he reached at the curve near Lalpur
Katheriya, they saw one person coming on
the road. When that person was asked, he
took turn and started to run. He was chased
and surrounded at a distance of 20 paces
and was arrested at about 5.10 a.m. On
enquiry, he told his name Phool Chandra
and on search, one country-made pistol, 12
bore, two live cartridges were recovered
from the possession of this accused. The
accused was also having a bag from which
two cotton saris, two quilt cover and one
piece of cloth were recovered. All these
materials were kept under separate sealed
cover and recovery memo (Ext.Ka.8) was
prepared
which
was
signed
by
the
witnesses. This witness also proved siteplan (Ext.Ka.9). PW 7 Sukhvinder Singh
deposed in his evidence the accused and the
recovered materials were brought at the
police station, where the chik report was
prepared by P.W.5 Constable Chakki Lal on
the basis of recovery memo. The witness
also
proved
chik
report
(Ext.Ka.10)
prepared in the hand-writing and signature
of P.W.5 Constable Chakki Lal. PW 7 S.I.
Sukhvinder Singh proved entries in the
G.D. of criminal case (Ext.Ka.11) made by
Constable Chhaki Lal. He deposed that he
recorded the statements of the witnesses.
He stated that during investigation, test
identification of the looted property was
conducted. After receiving the result of
identification, he submitted charge-sheet
(Ext.Ka.12).

12. PW 7 Sukhvinder Singh also
proved the site-plan (Ext.Ka.13) which was
prepared by S.I. Bazilal Yadav. The
investigation of the case u/s 25 of the Arms
Act was completed by S.I. Chunnalal
Gautam who also prepared site-plan and
submitted charge-sheet. S.I. Chunna Lal
Gautam
was
not
examined
by
the
prosecution. His signature and hand-writing
were proved by PW 7 Sukhvinder Singh.
The site-plan is (Ext.Ka.14) and the chargesheet is (Ext.Ka.15). PW 7 Sukhvinder
Singh has deposed that on 16.12.1988, the
case was registered in his presence u/s
960 INDIAN LAW REPORTS ALLAHABAD SERIES
457/380 I.P.C. and the investigation was
entrusted to S.I. Bazilal Yadav. On
18.12.1988, Circle Officer, Jafarganj made
surprise inspection of the police station
who gave directions that the above case be
converted into u/s 395/397 I.P.C. On his
direction, the case was converted u/s
395/397 I.P.C. and P.W.7 S.I. Sukhvinder
Singh, Station Officer himself took the
investigation of this case in his hand. At
that time, accused Phool Chandra was not
involved in Crime No. 91/1988 but during
investigation, it was found that he was
having the looted property, therefore, a case
was registered against him u/s 412 I.P.C.

13. PW 7 S.I. Sukhvinder Singh has
proved the bag containing two cotton
sarees, two quilt-covers and one piece of
cloth (Material Exts. 1 to 5) allegedly
recovered from the possession of appellant
accused, Phool Chandra.

14. P.W.6 Suraj Bhan Srivastava
proved the identification memo (Ext.Ka.5)
which was prepared by him regarding the
identification of looted property. He stated
that
looted
property
was
kept
for
identification along with some similar
articles.

15. I have heard arguments of the
learned counsel for appellant, learned
A.G.A. for the State and perused the entire
evidence on record.

16. Learned counsel for the appellant,
Phool Chandra, has argued that prosecution
has failed to prove that stolen articles were
recovered
from
his
possession.
The
prosecution has also failed to prove that
appellant accused Phool Chandra kept the
goods in his possession knowing that they
were stolen property.

17. Per contra, learned AGA appearing
for the State has argued that co-accused
Deshraj Singh, Shiv Kumar Yadav and
Lakhan Lal have been convicted by the trial
court in charge under Section 380 and 457
IPC. He also argued that the recovery of
stolen articles from the possession of
appellant accused Phool Chandra having
been duly proved he has been rightly
convicted under Section 411 IPC.

18. The word "stolen property" has
been defined in Section 410 IPC which is
as follows :-

"410. Stolen Property. Property,
the possession whereof has been transferred
by theft, or by extortion, or by robbery, and
property
which
has
been
criminally
misappropriated or in respect of which
criminal
breach
of
trust
has
been
committed,
is
designed
as
"stolen
property",whether the transfer has been
made, or the misappropriation or breach of
trust has been committed, within or
without. But, if such property subsequently
comes into the possession of a person
legally entitled to the possession thereof, it
then ceases to be stolen property."

19. The offence under Section 411 has
been defined as follows:-

"411.
Dishonestly
receiving
stolen property. Whoever dishonestly
receives or retains any stolen property,
knowing or having reason to believe the
same to be stolen property, shall be
punished with imprisonment of either
description for a term which may extend to
three years, or with fine, or with both."

20. In Mir Naqvi Askari Vs. CBI 2
(2009) 15 SCC 643, the Apex Court has
4 All. Phool Chandra Vs. State of U.P.
961
held about the offence under Section 411 as
follows :-

"The person must have the
knowledge that it is a stolen property.
This section as also the succeeding
sections are directed not against the
principal offender, e.g., a thief, robber or
misappropriator but against the class of
persons who trade in stolen articles and
are
receivers
of
stolen
property.
Principal offenders are therefore, outside
the scope of this section. Accordingly the
conviction of the principal offender is
also not a prerequisite to the conviction
of the receiver of stolen property under
this section."

21. In Trimbak Vs. State of Madhya
Pradesh, AIR 1954 SC 39, the Apex Court
(per Justice Mehr Chand Mahajan) has held
that in order to bring home the guilt under
Section 411 IPC, the prosecution must
prove :

"5. (1) that the stolen property
was in the possession of the accused, (2)
that some person other than the accused
had possession of the property before the
accused got possession of it, and (3) that
the accused had knowledge that the
property was stolen property..."

22. P.W.5 Constable Chakki Lal
deposed on oath that on 26.12.1988 at 5.10
a.m., he was taking area round with Station
Officer, Sri Sukhvinder Singh along with
other constables. When the police party
was returning to the police station and
reached at the curve of Lalpur Katheria, the
police party saw a person coming from the
side of the Rind River. Seeing that person,
Station Officer asked him then he started to
run towards backside. He was chased and
apprehended by the police party at about
5.10 a.m. On enquiry, he told his name
Phool Chandra. On search, one countrymade pistol and two cartridges were
recovered from his possession. He was
having a bag from which two cotton saries,
two quilt covers and one piece of cloth was
recovered. The recovered material were
kept under separate sealed covers and the
recovery memo was prepared on the spot
on the dictation of S.I. Sukhvinder Singh
and the signatures of the witnesses were
obtained. One sealed bundle was opened in
which two cotton saris, two quilt covers
and one piece of cloth were found which
were recovered from the possession of
accused, Phool Chandra. These articles are
(material Exts.1 to 5). The accused along
with the recovered materials was brought at
the police station, where the case was
registered against him. P.W.5 Constable
Chakki Lal was not cross-examined by the
defence side.

23. The arrest of appellant accused
Phool Chandra and recovery of stolen quiltcover, sarees and cloth has also been
proved by the evidence of P.W.7 S.I.
Sukhvinder Singh who had arrested the
appellant accused Phool Chandra and
recovered aforesaid articles from his
possession. He has proved the recovery
memo relating to appellant's arrest and the
recovery memo of stolen property (Ext.Ka4). He has also proved the articles i.e. two
quilt cover, two cotton sarees and one
another cloth which have been recovered
from the possession of the appellant
accused (Material Ext.1 to 5). P.W.7
Sukhvinder Singh has also proved by his
evidence the arrest of the appellant accused
Phool Chandra who was carrying a bag
containing the aforesaid articles. P.W.3
Murlidhar, informant has identified the
aforesaid articles (Material Exts. 1 to 5) as
stolen from his house. In the cross-
962 INDIAN LAW REPORTS ALLAHABAD SERIES
examination of P.W.3 Murlidhar, P.W.5
Chhaki Lal and P.W.7 Sukhvinder Singh
nothing emerges which may raise doubt
about their evidence regarding recovery of
aforesaid stolen goods from the possession
of appellant accused Phool Chandra.

24. The evidence of PW 5 Chhakki Lal
regarding the recovery of aforesaid stolen
articles from the possession of appellant
accused Phool Chandra has not been
challenged on behalf of the appellant
accused in his cross-examination. His
evidence has been corroborated by the
evidence of P.W.7 S.I. Sukhvinder Singh.
The informant Murlidhar was a hawker
who used to carry clothes and sell them on
streets. The articles recovered from the
possession of appellant accused were new
clothes. The appellant accused has not
claimed ownership of those articles.

25. These articles were recognized by
informant Murlidhar, Sukh Nandan and
Kallu
who
is
brother
of
informant
Murlidhar in test identification proceeding
conducted by Identification Magistrate, PW
6 Suraj Bhan Srivastava, therefore the trial
court has rightly convicted the appellant
accused Phool Chandra for charge under
Section 411 IPC.

26. From the above discussion of law
and evidence, it is concluded that the
prosecution has proved beyond reasonable
doubt that a bag containing two quiltcovers, two sarees and one cloth (material
Ext. 1 to 5) was recovered from the
possession of appellant accused Phool
Chandra. He had possession of these
materials exhibits knowing that they were
stolen
property.
The
appeal
against
conviction of appellant accused under
Section 411 IPC is without merit and liable
to be dismissed.

27. Learned counsel for the appellant
has argued that the appellant accused is a
poor person. The alleged recovery of stolen
property from the appellant has taken place
about thirty five years ago. The appellant
accused has no criminal antecedents in his
credit. Subsequent to the present criminal
case, the appellant accused has no other
criminal case registered against him. The
appellant may be given benefit of the
Probation of Offenders Act, 1958 and be
released on probation.

28. Learned AGA has opposed the
appellant accused being given benefit of
the Probation of Offenders Act, 1958 but he
could not deny that the appellant accused
has no criminal antecedents and after
present criminal case, no other criminal
case was registered against him.

29. Section 4 of the Probation of
Offenders Act, 1958 reads as follows :

"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:
4 All. Phool Chandra Vs. State of U.P.
963

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 subsection (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."

30. A similar provision finds place in
the Code of Criminal Procedure. Section
360 Cr.P.C. provides :

"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
964 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

31. These statutory provisions very
emphatically lay down the reformatory and
correctional object of sentencing and
obligates the trial court as well as appellate
courts to give benefit of probation in fit
cases as provided under law. Unfortunately,
this branch of law has not been much
utilized by the courts. It becomes more
4 All. Phool Chandra Vs. State of U.P.
965
relevant and important in our system of
administration of justice where trial is often
concluded after a long time and by the time
decision assumes finality, the very purpose
of sentencing looses its efficacy as with the
passage of time the penological and social
priorities change and there remains no need
to inflict punishment of imprisonment,
particularly when the offence involved is
not serious and there is no criminal
antecedent of the accused persons. The
facts and given circumstances in each case,
the nature of the crime, the manner in
which it was planned and committed, the
motive for commission of the crime, the
conduct of the accused, the nature of
weapons used and all other attending
circumstances are relevant facts which
would enter into the area of consideration.
It is, therefore, the duty of every court to
award proper sentence having regard to the
nature of the offence and the manner in
which it was executed or committed.

32. In the case of Subhash Chand
and others vs. State of U.P., 2015
Lawsuit (Alld) 1343, this court has
emphatically laid down the need to apply
the law of probation and give benefit of the
beneficial legislation to accused persons in
appropriate
cases.
This
court
issued
following directions to all trial courts and
appellate courts:

"It appears that the aforesaid
beneficial legislation has been lost sight of
and even the Judges have practically
forgotten this provision of law. Thus,
before parting with the case, this Court
feels that I will be failing in discharge of
my duties, if a word of caution is not
written for the trial courts and the appellate
courts. The Registrar General of this Court
is directed to circulate copy of this
Judgment to all the District Judges of U.P.,
who shall in turn ensure circulation of the
copy of this order amongst all the judicial
officers working under him and shall
ensure strict compliance of this Judgment.
The District Judges in the State are also
directed to call for reports every months
from all the courts, i.e. trial courts and
appellate courts dealing with such matters
and to state as to in how many cases the
benefit of the aforesaid provisions have
been granted to the accused. The District
Judges are also directed to monitor such
cases personally in each monthly meeting.
The District Judges concerned shall send
monthly statement to the Registrar General
as to in how many cases the trial
court/appellate court has granted the benefit
of the aforesaid beneficial legislation to the
accused. A copy of this order be placed
before the Registrar General for immediate
compliance."

33. In addition to the above judgment
of this Court, this Court finds that the
Hon'ble Apex Court in the case of State of
Maharashtra
Vs.
Jagmohan
Singh
Kuldip Singh Anand & others (2004) 7
SCC 659, giving the benefit of Probation
of Offenders Act, 1958 to the accused has
observed as below:

"The learned counsel appearing
for the accused submitted that the incident
is of the year 1990. The parties are
educated and neighbors. The learned
counsel, therefore, prayed that benefit of
the Probation of Offenders Act, 1958 may
be granted to the accused. The prayer made
on behalf of the accused seems to be
reasonable. The accident is more than ten
years old. The dispute was between the
neighbors over a trivial issue of claiming of
drainage. The accident took place in a fit of
anger. All the parties educated and also
distantly related. The incident is not such as
966 INDIAN LAW REPORTS ALLAHABAD SERIES
to direct the accused to undergo sentence of
imprisonment. In our opinion, it is a fit case
in which the accused should be released on
probation by directing them to execute a
bond of one year for good behaviour."

34. Similarly, in Jagat Pal Singh &
others Vs. State of Haryana, AIR 2000
SC 3622, the Hon'ble Apex Court has given
the benefit of probation while upholding
the conviction of accused persons under
Sections 323, 452, 506 IPC and has
released the accused persons on executing a
bond before the Magistrate for maintaining
good behaviour and peace for the period of
six months.

35. In the light of above discussion, I
find
no
illegality,
irregularity
or
impropriety nor any jurisdictional error in
the impugned judgment and order of the
court below. The conviction recorded by
the trial court under Section 411 I.P.C. is
upheld and is not required to be disturbed.

36.
Considering
the
facts
and
circumstances of the present case as well as
keeping in view the position of law as
mentioned above and considering that the
incident had taken place about 35 years back
and considering the provisions of Section 4 &
5 of the Probation of Offenders Act, 1958 it
appears justified that the appellants accused
Phool Chandra be released under Section 4
(1) of the Act on probation for a period of one
year on furnishing a personal bond of
Rs.20,000/- (Rupees twenty thousand) and
two sureties each of the like amount. During
this period, he shall maintain good conduct
and keep peace and on breach of this
condition, he shall appear before the Court to
receive punishment.

37. The criminal appeal is partly
allowed as mentioned above.

38. Let a certified copy of this order
along with record be sent to the court
concerned for compliance.
----------
(2023) 4 ILRA 966
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.04.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Appeal No. 4548 of 2015

Dev Saran & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Rajesh Kumar Mishra

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 149 & 302 - The Code of Criminal
Procedure, 1973 - Sections 313 - Trail
Court convicted - Imprisonment for life -
Appeal against conviction - As per FIR -
Deceased was married to the son of
appellant, there was family dispute - On
the date of incident, deceased had gone to
police station to report a complaint - On
her returned back, father-in-law, motherin-law, sister-in-law and brother-in-law
caught hold her, she was set ablaze by
brother-in-law - Deceased was married
about 10 years ago - Husband of deceased
was not present at the time of incident -
There was quarrel between the family
regarding partition, she was physically
beaten - After ten days of incident, a dying
declaration was recorded on 20.5.2012 -
On 20.6.2012 FIR was lodged - Charges
framed - Held, the death caused by
accused was not premeditated, accused
had no intention to cause death of