Allahabad High Court
Udhary Bhan And 3 Ors. vs State Of U.P. on 10 July, 2026
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:45526
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 503 of 2005
Udhary Bhan And 3 Ors.
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
M.P.Yadav
Counsel for Respondent(s)
:
Govt.Advocate
Court No. - 12
HON'BLE MANISH MATHUR, J.
1. Heard Mr. M.P. Yadav, learned counsel for the appellant and learned A.G.A. for the respondent-State.
2. Vide previous order dated 30th January, 2026, it has been directed that appeal stands abated on behalf of appellants 1, 2, and 3 namely Udhay Bhan, Jiya Ram and Jethu respectively in view of their passing away during course of proceedings. The appeal therefore is being adjudicated upon only at the instance of appellant No.4, Veepat.
3. The instant Criminal Appeal under Section 374(2) CrPC has been filed against judgment and order dated 6/7th April, 2005 passed by Additional Session Judge, Court No.2, Sultanpur in Sessions Trial No. 465 of 1998 State v. Jiyan Ram and others, arising out of Case Crime No. 189 of 1997, under Section 323/34, 324/34, 436, 504, 506(2) I.P.C., Police Station Jaising Pur, District Sultanpur convicting and sentencing the appellants as under:-
(i) under Section 323/34 I.P.C. to six months rigorous imprisonment
(ii) under Section 324/34 I.P.C. to one year rigorous imprisonment
(iii) under Section 436 IPC to 10 years rigorous imprisonment and a fine of Rs.2500/- and in default of fine, one year’s additional imprisonment
(iv) under Section 504 IPC to six months rigorous imprisonment
(iv) under Section 506 IPC to two years rigorous imprisonment
(ii) All sentences shall run concurrently.
4. As per prosecution version, incident is said to have taken place on 13th June, 1997 at about 8 PM when the appellants allegedly entered into an altercation with the informant and his family members during course of which grievous injuries were suffered by informant and his family members. It is alleged that accused Udhay Bhan was carrying a knife with which he inflicted injury upon the father of informant while the other accused were armed with sticks and rods with which they attacked and assaulted other family members. It is alleged that due to hue and cry which was raised, neighbours and other family members also sought to intervene whereafter the accused Udhay Bhan set fire the house of the appellant. Allegedly the appellants escaped during the melee.
5. After investigation, charge sheet was filed and charges were framed under Sections 323/34, 324/34, 436/504 and 506 IPC. As many as eight prosecution witnesses were examined while defence was led under Section 313 Cr.P.C. leading to conviction of appellants.
6. Learned counsel for appellant submits that he is not pressing appeals so far as it relates to convictions under Section 323/34, 324/34, 504 and 506 IPC and is raising challenge to the conviction recorded under Section 436 IPC. He submits that on perusal of impugned judgment itself particularly so far as it adverts to testimony of PW1 Ram Bharat Yadav and PW3 Hanuman Das, as well as PW5 Akhilesh Singh, it is evident that it was the deceased accused Udhay Bhan who has set fire to the house of the informant as well as the neighburring area. He submits that there is no finding recorded by trial court nor was prosecution in established its case beyond reasonable doubt with regard to applicability of Section 436 IPC against the present appellants. He therefore submits that the trial court has erred in recording conviction against the appellants under the aforesaid section. It is also submitted that it is a relevant aspect that section 34 IPC has not been imputed against appellants with regard to applicability of section 436 IPC.
7. Learned counsel has further adverted to the supplementary affidavit dated 27th April, 2026 to submit that in paragraph 5 thereof, the appellant has specifically stated that they are liable to be released on probation since the Probation of Offenders Act, 1958 would be applicable upon them as there is no previous criminal history. He submits that although such a plea was not taken by before trial court but the said aspect can be considered before this court in view of judgment rendered by Suprme Court in the case of Rattan Lal versus State of Punjab AIR 1965 Supreme Court 444.
8. Learned AGA has opposed the appeal with submission that the trial court has rightly recorded a conviction under section 436 IPC against the appellants as well in view of testimony of PW2 Ram Karan who has indicated a conjoint effort by the appellants in setting fire to the house of the informant.
9. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the aspect requiring adjudication in present appeal therefore is restricted to the appellant No.4 as well as the aspect whether the trial court has erred in recording a conviction against him under Section 436 IPC ?
10. With regard to aforesaid proposition, it would be conducive to refer to provisions of section 436 IPC which are as follows:-
“436. Mischief by fire or explosive substance with intent to destroy house, etc.?
Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
11. The aforesaid provision clearly indicates that any person who commits mischief by fire or any explosive substance, with the intention to cause or knowing they he would thereby cause the destruction of building which is ordinarily used as a place of worship or a human dwelling or as a place of custody of property shall be punished has prescribed.
12. Therefore for applicability of Section 436 IPC, it is incumbent upon the prosecution to establish by evidence that the appellants had committed such mischief by fire or any explosive substance which caused the destruction of the building owned by the information as his dwelling place.
13. However upon examination of trial court record as well as impugned judgment, it is evident that the informant as PW1, the eye witness Hanuman Das as PW3 and Akhilesh Singh as PW5 have given virtually identical statements that it was the deceased accused Udhay Bhan who set fire to the dwelling house of the informant.
14. The only discordant note is at the instance of PW 2 Ram Karan who has given a statement that all the accused cumulatively set fire to the dwelling accommodation of the informant.
15. In the considered opinion of this court, once three eye witness accounts clearly indicate the aspect of fire being set to the dwelling accommodation of the informant by deceased accused Udhay Bhan, the discordant note struck by the PW 2 Ram Karan would be immaterial.
16. It is also evident that trial court while recording a conviction under Section 436 IPC has placed reliance on testimonies of PW1, PW2, PW4 and PW5.
17. As has been indicated herein above, the aforesaid prosecution witnesses have attributed the setting fire to the dwelling accommodation of the informant only upon the deceased accused Udhay Bhan without implicating the present appellants. The trial court has not recorded any finding at all with regard to the involvement of the appellants so as to sustain his conviction under Section 436 IPC.
18. It is also relevant that the appellants have been convicted under Section 436 IPC without indicating complicity either to Section 34 or Section 149 or Section 120-B IPC.
19. In view of discussion made herein above, the conviction of the appellant under Section 436 IPC is set aside.
20. With regard to remaining sections imputed against the appellant, it is submitted that appellant has not been convicted previously for any offence and at the very outset submits that he is not arguing this case on merit and also is not challenging the impugned judgment and order of conviction while confining his submission in the appeal only with respect to the order of sentence. It is also submitted that despite recording submission of learned counsel for appellant that he was entitled to be granted benefit under The Probation of Offenders Act, 1958 there is no discussion with regard to same.
21. In view of aforesaid submission of learned counsel for accused-appellant, the appeal is dismissed so far as it relates to impugned judgment and order of conviction. The judgment and order of conviction passed by the court below dated 7th April, 2005 is hereby upheld.
22. Learned counsel for accused-appellant submits that in view of aforesaid facts and circumstances including the fact that appellant has not been convicted previously for any offence, trial court ought to have invoked the provisions of The Probation of Offenders Act, 1958 (hereinafter referred to as ‘Act, 1958’). It is further submitted that the trial court neither invoked provisions of the Act, 1958 nor the provisions of Section 360 Cr.P.C., while sentencing accused-appellant. Impugned judgment also does not indicate any special reason for not giving benefit of provisions of Section 360 Cr.P.C. or the provisions of Act, 1958.
23. Section 361 of the Code is required to be applied with or without beneficial provisions, i.e., Section 360 of the Code or the provisions of the Act, 1958. If the Court chooses not to apply either of these provisions, it is required to give special reasons for not applying beneficial provision in case the accused offender otherwise, is eligible for provisions of Section 360 of the Code or Section 3 or 4 of the Act, 1958.
24. Learned counsel for appellant submits that the accused-appellant has statutory right for claiming benefit of beneficial legislation, i.e., the provisions of the Act, 1958 and the court was under a duty to consider the applicability of Section 360 Cr.P.C. or Sections 3 or 4 of the Act, 1958 as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act, 1958 were not applied, then the court should have recorded reasons for same. It is, thus, submitted to that extent, impugned judgment and order suffers from serious illegality being violative of provisions of section 361 Cr.P.C. and, therefore, it cannot be sustained.
25. Learned A.G.A. has opposed criminal appeal however he admits that there is nothing adverse to the aspect that appellant does not have previous criminal history. It is also submitted that in terms of provisions under Sections 360/361 CrPC, this Court may consider the grant of benefit. It is however admitted that plea with regard to benefit of Probation of Offenders Act, 1958 has been raised but has not been addressed.
26. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, since only the aspect of probation for good conduct is being adjudicated upon, Sections 360 and 361 CrPC pertain to order to release on probation of good conduct or after admonition and provides that where a person not under the age of 21 years is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when a person under the age of 21 years is convicted of an offence not punishable with death or imprisonment for life and no previous conviction is proved against the offender, the Court recording conviction is required to consider various aspects including age, character or antecedents of the offender and circumstances in which offence was committed and should release the offender on probation on good conduct and instead of sentencing him to any punishment, direct that he may be released on his entering into a bond with or without sureties to appear and receive sentence for said period to keep the peace and good behaviour. Provision has also been made for exercise of such powers by Appellate Court or by the High Court or Court of Session.
27. Section 361 of the said Code indicates special reasons to be recorded in certain cases to the effect that in case an accused is entitled to benefit of Section 360 or under the provisions of the Probation of Offenders Act, 1958 or the Youthful Offender under the Children Act, 1960 or any other law pertaining to training or rehabilitation of youthful offenders, but has not been granted such benefit, it shall record special reasons in its judgment for not having done so.
28. The Central Legislation on the subject being Probation of Offenders Act, 1958 particularly Sections 3 and 4 thereof indicate power of court to release certain offenders after admonition and power to release certain offenders on probation of good conduct.
29. The State Legislation applicable in the State of U.P. is the Uttar Pradesh First Offenders’ Probation Act, 1938 in which also Sections 3 and 4 pertain to powers of Court to release certain offenders after admonition and on probation of good conduct respectively.
30. The aspect of applicability of Sections 360 and 361 CrPC was dealt with by a Division Bench of this Court in Uttar Pradesh v. Misri Lal and others reported in 1982 CrLJ 1420. Relevant portion of the judgment is as follows:-
“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”.
Section 361 of the CrPC lays down that where in any case the Court could have dealt with an accused person under Section 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.
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 Uttar Pradesh First Offenders’ Probation Act, 1938.”
31. 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 CrPC. 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 CrPC.
32. Coming to the point of desirability of extending the benefit of Probation Act to the accused-appellant, in Sitaram Paswan and another Vs. State of Bihar, reported in AIR 2005 SC 3534, Hon’ble the 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.”
33. In Mohd. Hashim Vs. State of U.P and others, reported in AIR 2017 SC 660, Hon’ble 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.”
34. Upon applicability of aforesaid provisions and judgments in the present case, it is evident that the incident is said to have taken place in the year 1997 with maximum sentence of two years having been imposed. More than 28 years since have passed.
35. So far as the conviction part is concerned, this Court does not find any illegality, perversity or infirmity in the order passed by the courts below, but keeping in view the discussion made above, the sentence inflicted on the accused-appellant requires modification.
36. The appeal is partly allowed with following modifications:-
36.1. The conviction of the accused-appellant No.4, Veepat, by courts below is modified with Section 436 IPC being set aside and upheld under Sections 323/34, 324/34, 504 and 506 IPC as recorded in the impugned judgment . The sentence of appellant-accused is modified to the tune that he is provided benefit of Section 4 of the U.P. Probation of Offenders Act and is released on probation on the condition that he will keep peace and good conduct for one year from today and shall file two sureties to the tune of Rs.20,000/- each along with his personal bond before the court below and also an undertaking to the effect that he shall maintain peace and good behavior during the period of one year from today. In case of breach of any of the conditions mentioned above, the appellant will be subjected to undergo the sentence as awarded by the courts below. The bonds aforesaid will be filed by the appellant within one month from today before the District Probation Officer, Sultanpur under intimation to the concerned court.
37. A certified copy of the order be also sent to the court concerned and District Probation Officer, Sultanpur for necessary compliance, forthwith.
(Manish Mathur,J.)
July 10, 2026
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