Dinesh Singh vs State Of Uttaranchal

R.C. Khulbe, J

This appeal, preferred by the appellants u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 04.09.2006 passed by learned Sessions Judge, Chamoli in Sessions Trial No.03 of 2006, whereby the Court below has convicted the appellant Dinesh Singh under Section 354 of the Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.) and sentenced him for the sentence already undergone by him along with fine of Rs.1,000/- and in default of payment of fine, to undergo one month's simple imprisonment. However, the appellant was acquitted for the offence u/s 376 IPC.

Facts, in nutshell, are that PW1 Sant Ram submitted an application on 28.10.2005 at 10 PM to the Patwari, Patwari Circle Mahalchauri, Tehsil Gairsain, District Chamoli with the averments that on 26.10.2005 at about 5 PM, when the daughter of complainant was cutting grass in her field for feeding the animals, appellant Dinesh Singh at once pounced on the victim and committed rape upon her. She could regain her conscious only after three hours. The informant was informed about the occurrence on 28.10.2006 at 9 AM. With these averments, the FIR was lodged.

The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan; and after completion of investigation, submitted the charge-sheet against the appellant u/s 376 IPC.

The case was, accordingly, committed to the court of Sessions after complying with the provisions of Section 207 Cr.P.C.

Learned Sessions Court, accordingly, framed the Charge against the appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried.

To prove its case, the prosecution has examined PW1 Sant Ram, PW2 Dr. Uma Rawat, PW3 the prosecutrix (name withheld), PW4 Bindi Ram, PW5 Dr. M.S. Bhandari, PW6 Bhagirathi Devi and PW7 Vinod Kumar.

Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. who denied the allegations made against them. He pleaded to have been falsely implicated. He also produced certain documents in his defence.

After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed.

Heard learned Counsel for the parties and perused the entire evidence available on the record.

Mr. R.P. Nautiyal, learned Senior Counsel appearing for the appellant-Dinesh Singh fairly submits that the conviction of the appellant, as recorded by the Court below under Section 354 IPC is perfectly justified as per the evidence recorded before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellant may be extended the benefit of being the first-offender and he may be released on probation by giving him the benefit of the Probation of Offenders Act, 1958.

Mrs. Pushpa Bhatt, learned Dy.A.G. appearing for the State, admits that she has not received any report about the criminal antecedents of the appellant, and admitted that appellant is the first-time offender.

In this regard, the Hon'ble Apex Court in the case of "Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

"7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the description mentioned in Sections 3 and 4 of the said Act."

Section 4 of the Probation of Offenders Act, 1958 read as under:

"4. Power of court to release certain offenders on probation of good conduct

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 5 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.

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.

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.

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."

Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment for life, in that event, considering the nature of the offence and the character of the offender, the Court, instead of sentencing him at once to any punishment, may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding three years. Before releasing the offender, on probation, the Court must satisfy itself that 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. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.

A careful reading of Section 4 of the Act would reveal that if the offence is punishable for a period more than 2 years, but not punishable with death or imprisonment for life, admonition of sentence shall not be required and if person, released on probation, is found involved in any offence during the period of probation or otherwise, is found behaving in violation of condition of bond, he shall be directed to serve out the sentence awarded by the court. In other words, while on probation, such person should not involve himself in subsequent offence or must honour the condition of his bond / surety bond and if he breaches the same, he has to serve out the sentence awarded by the Court.

In the present case the appellant is the first-time offender. The incident seems to have taken place 14 years ago. Moreover, the appellant was also sentenced by the Trial Court for the period already undergone by him during incarceration with fine of Rs.1,000/-.

Therefore, considering the provisions of the Probation of Offenders Act, 1958, in the opinion of the Court, the appellant should be released on probation in order to reform himself.

The present appeal, thus, stands disposed of. The conviction part of the appellant Mangat Singh u/s 354 IPC is left intact. However, as far the sentence part is concerned, it is directed that the appellant Dinesh Singh shall be released on probation for a period of two years on furnishing a personal bond to the satisfaction of the concerned Trial Court. The Judge concerned shall be at liberty to impose such conditions while executing the bond which he feels fit in accordance with law. It goes without saying that if accused/appellant fails to observe good conduct and behaviour during probation, or is found violating any condition, to be imposed, the Court concerned shall be at liberty to cancel the bond after calling the accused-appellant and to proceed in the matter in accordance with law. The appellant Dinesh Singh shall appear before the Trial Court on 19.08.2019 for compliance.

Let a copy of this judgment be sent forthwith to the learned Trial Court for information/ compliance.