# Raju @ Raj Kumar & Anr. (In Jail) v. The State of U.P

- **Citation:** (2019) 3 ILRA 914
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-15
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-raj-kumar-anr-in-jail-v-the-state-of-u-p-44875
- **Pages:** 4

## Headnote

A. Criminal Law-Sections 360 and 361 of
the Code of Criminal Procedure, 1973;
Indian Penal Code,1860 - Sections 325/34
I.P.C.
-
non-cognizable
case
-
The
prosecution
witnesses
proved
the
documents of the prosecution like injury
report, postmortem report, inquest report
and copy of G.D. - Section 4 of The United
Provinces First Offenders Probation Act,
1938 - Power of court to release certain
offenders on probation of good conduct.-
in any case where the court could have
dealt with an accused under Section 360
of the Code and yet does not want to grant
the benefit of the said provision then it
shall record in its judgement the specific
reasons for not having done so - the trial
court
overlooked
the
provisions
of
Sections 360 and 361 of the Code of
Criminal Procedure and it was mandatory
duty cast on the trial court which ought to
have been performed- conviction of the
appellant maintained - direct that the
appellant be released on probation of good
conduct. (Para 4,5,13,14,16)

Criminal Appeal disposed of. (E-7)

## Text

914 INDIAN LAW REPORTS ALLAHABAD SERIES
302 of IPC and his case would not fall for
any lesser offence.

19. Considering all aspects of the
case, trial court appears to be justified in
convicting the appellant. The appeal has
no substance and the same is, accordingly,
dismissed. The appellant is reported to be
on bail, he be taken into custody forthwith
to serve the remaining sentence.

20. We appreciate the assistance
rendered by Mohd. Shahanshah Alam
Ansari, Amicus and direct the State
Government to pay Rs.5,000/- to him as
his remuneration.
----------

(2019)11ILR A914

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.05.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No.- 347 of 1988

Raju @ Raj Kumar & Anr.
 ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.P.S. Raghava, Sri Sunil Kumar.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Sections 360 and 361 of
the Code of Criminal Procedure, 1973;
Indian Penal Code,1860 - Sections 325/34
I.P.C.
-
non-cognizable
case
-
The
prosecution
witnesses
proved
the
documents of the prosecution like injury
report, postmortem report, inquest report
and copy of G.D. - Section 4 of The United
Provinces First Offenders Probation Act,
1938 - Power of court to release certain
offenders on probation of good conduct.-
in any case where the court could have
dealt with an accused under Section 360
of the Code and yet does not want to grant
the benefit of the said provision then it
shall record in its judgement the specific
reasons for not having done so - the trial
court
overlooked
the
provisions
of
Sections 360 and 361 of the Code of
Criminal Procedure and it was mandatory
duty cast on the trial court which ought to
have been performed- conviction of the
appellant maintained - direct that the
appellant be released on probation of good
conduct. (Para 4,5,13,14,16)

Criminal Appeal disposed of. (E-7)

(Delivered by Hon'ble Ajit Singh, J.)

1. This criminal appeal has been
filed against the judgement and order
dated
28.1.1988
passed
by
IXth
Additional Sessions Judge, Bulandshahar
in S.T. No. 482 of 1985, convicting and
sentencing the appellants under Sections
325/34
I.P.C.
to
undergo
Rigorous
Imprisonment for the period of three
years.

2. The brief facts leading to this
appeal are that an FIR was lodged at
police station-Khurja City on 20.7.1985 at
about 7.30 a.m. by Ganga Prasad, son of
Chunni Lal, resident of Bagh Rishalda,
which was registered as non-cognizable
case. It was alleged in the FIR that today,
in the morning at about 7.00 a.m. when he
was sitting on his Chabutara, the accused
who were Gangsters and were having
enmity with him were going by the side
of his Chabutra singing indecent songs.
When he told them not to sing indecent
songs,
the
accused
persons
started
assaulting him with lathi, kicks and fists.
They also abused him and threatened him
with dire consequences. He further stated
3 All. Raju @ Raj Kumar & Anr. Vs. The State of U.P.
915
that he apprehends danger to his life at the
hands of the accused persons. This
incident was allegedly witnessed by Ravi
Shankar and Harkesh. The FIR was
registered under Sections 323, 504 and
506 I.P.C. Later on informant was taken
to the hospital at Khurja and considering
his condition to be serious he was referred
to
Delhi
and
on
20.7.1985
the
complainant Ganga Prasad was taken to
Jai Prakash Narain Hospital where he
succumbed to injuries at about 10.00 p.m.
on 29.7.1985. After the death of the
deceased Ganga Prasad an application
was submitted by Ravi Shankar, son of
the deceased at police station regarding
the death of his father, alleging therein
that his father has succumbed to injuries
inflicted by the accused Raju @ Raj
Kumar and Kalwa on 20.7.1985 at about
7.00 a.m. On this information Section 304
I.P.C. was also added.

3. After completion of investigation,
the Investigating Officer has submitted
charge sheet against the accused persons
and cognizance was taken by the
Magistrate. The case was committed to
the court of Session.

4. In order to prove its case the
prosecution
has
examined
three
witnesses. Ravi Shankar PW1, Smt.
Sapna alias Guddi PW2 and Jagdish
PW3. PW3 Jagdish has not supported the
prosecution case and has been declared
hostile. During trial several formal
witnesses were also examined and the
prosecution
witnesses
proved
the
documents of the prosecution like injury
report, postmortem report, inquest report
and copy of G.D.

5. After the prosecution evidence the
statements of the accused under Section
313 Cr.P.C. were recorded and they
denied the prosecution evidence and
submitted that a false FIR was lodged
against them and wrong charge sheet was
also submitted against them and witnesses
had given false statements against them.

6. Accused Kaluwa has stated in his
statement that the mother of Ravi Shankar
is Nanno who is his real sister and
litigation is pending between them. He
has been falsely implicated in the present
case due to enmity. The accused persons
have also filed certain documents in their
defence.

7. After hearing the arguments
advanced by learned counsel for the
appellants and learned counsel for the
complainant, the trial court convicted and
sentenced the accused as aforesaid.
Aggrieved by the impugned judgement,
this criminal appeal has been filed.

8. Learned counsel for the appellant
submitted that the appellant no. 2, Kalwa
has died during the pendency of the
appeal in the year 1992 and in this regard
the
Chief
Judicial
Magistrate,
Bulandshahar has submitted a report,
mentioning therein that appellant no. 2,
Kalwa had died in the year 1992.

9. Considering the report of the
CJM, Bulandshahar and considering the
Circular issued by this Court from time to
time, the appeal qua appellant no. 2,
Kalwa stands abated.

10. The appeal is heard on behalf of
appellant no. 1, Raju @ Raj Kumar.

11. Learned counsel for the
appellant submitted that at the time of
incident the accused Raju @ Raj Kumar
916 INDIAN LAW REPORTS ALLAHABAD SERIES
was minor. The incident has taken place
in the year 1985 and the present appellant
was convicted after more than 3 years in
1988. He next submitted that the present
accused was not having any criminal
history at the time of conviction and after
conviction there was also no criminal
history against him. He further submitted
that he does not want to press this appeal
on merits and he seeks that lenient view
be taken against the present appellant
because the incident had taken place in
the year 1985 and the present accused
Raju @ Raj Kumar was minor at the time
of incident and other co-accused Kalwa
has died way back in the year 1992 and it
will not be proper to send the present
accused after more than 30 years to serve
the sentence in prison. It was the first
offence committed by the appellant and
he be given probation under United
Provinces First Offenders Act, 1938.

12. Learned A.G.A. has vehemently
opposed the appeal.

13. After considering the rival
submissions, considering the facts and
circumstances of the case as well as
considering that it was the first offence of
the present accused Raju @ Raj Kumar
and at the time of occurrence he was
allegedly minor and after considering the
provisions of The United Provinces First
Offenders Probation Act, 1938 and after
perusing the impugned judgment, it
transpires that the learned trial court had
not considered the applicability of The
United
Provinces
First
Offenderrs
Probation Act, 1938 and has not taken
into account the age, character and
antecedent of the accused and has not
considered the physical and mental
condition of the accused at the time of
passing the impugned judgement. Section
4 of The United Provinces First Offenders
Probation Act, 1938 is applicable in the
State of U.P. which provides as under :

"4. 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
3 All. Lokai Chamar Vs. State of U.P.
917
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."

14. After considering the provision
of Section 4 of the aforementioned act
and considering the mandate of Section
360 and 361 of Cr.P.C., which indicates
that in any case where the court could
have dealt with an accused under Section
360 of the Code and yet does not want to
grant the benefit of the said provision
then it shall record in its judgemnt the
specific reasons for not having done so.
This has apparently not been done,
inasmuch as the trial court overlooked the
provisions of Sections 360 and 361 of the
Code of Criminal Procedure and it was
mandatory duty cast on the trial court
which ought to have been performed.

15. Looking to the facts and
circumstances of the present case, this
Court see no reasons not to apply the
provisions of Section 360 of the Code of
Criminal Procedure.

16. Accordingly, this Court while
maintaining the conviction of the appellant ,
direct that he will be dealt with under Section
4 of The United Provinces First Offenders
Probation Act, 1938 and direct that the
appellant be released on probation of good
conduct instead of sentencing him, and he
should enter into a bond with one surety to
appear and receive the sentence when called
upon during the period of one year for the
purpose in question. The bond for a year shall
be executed before the learned Chief Judicial
Magistrate, Bulandshahar within one month
after receiving certified copy of this order.

17. The appeal is accordingly
disposed of.
----------

(2019)11ILR A917

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.11.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No.- 395 of 1987

Lokai Chamar ...Appellant
Versus
State of U.P. ...Respondent