Allahabad High Court
Chhangur And 2 Ors. vs State Of U.P. on 24 July, 2026
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:49879
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1179 of 2004
Chhangur And 2 Ors.
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
K.N.Misra
Counsel for Respondent(s)
:
Govt.Advocate
Court No. - 12
HON'BLE MANISH MATHUR, J.
1. Heard Mr. K.N.Misra, learned counsel for appellants and learned Additional Government Advocate for respondent-State.
2. The instant Criminal Appeal under Section 374(2) CrPC has been filed against judgment and order dated 30.04.2004 passed by the Sessions Judge, Balramur, in Sessions Trial No.13 of 1999, State v. Chhangur and others, arising out of Case Crime No. 46 of 1997, under Sections 304/34 and 323/34 I.P.C., Police Station Kotwali Balrampur Dehat, District Balrampur, convicting and sentencing the appellants as under:- (i) Appellant no.1 under Sections 304/34 I.P.C. shall undergo ten years rigorous imprisonment with a fine of Rs.5,000/- and in default of fine, he shall undergo six months additional imprisonment. (ii) Appellant nos. 2 and 3 under Sections 323/34 IPC shall undergo one year rigorous imprisonment.
3. As per prosecution version, the incident is said to have taken place on 28.03.1997 at about 7 p.m. when the wife of appellant-Kokey went to meet wife of informant-Chotkau. It is stated that due to previous enmity, both families were estranged and were not on speaking terms. It is further stated that upon return of wife of accused-Kokey to her house, heated exchange ensued between ladies of house. It is also alleged that the accused-Kokey scolded his wife with regard to the said meeting. He is also stated to have misbehaved with the wife of informant-Chotkau threatening her with a thrashing. Allegedly, when the aforesaid aspect came to knowledge of Idris, younger brother of informant, he accosted appellants for having threatened the wife of informant. Another heated exchange ensued, during the course of which, appellant No.1-Chhangur is said to have inflicted one blow upon the head of Idris resulting in grievous injury and his becoming unconscious. The said Idris subsequently passed away on 29.03.1997 at about 5:15 a.m.
4. After investigation, charge-sheet was submitted against appellants and charges were framed under Sections 304, 323 and 504 IPC.
5. Trial Court examined as many as 10 prosecution witnesses, with defence being led under Section 313 Cr.P.C., resulting in conviction of appellant No. 1-Chhangur under Section 304 read with Section 34 IPC, whereas appellant No.2- Kokey & appellant No.3-Lala under Section 323 read with Section 34 IPC.
6. Learned counsel for appellants submits that although the incident was established by evidence of prosecution witnesses, the trial court has not adverted to the deposition of attending doctor, Dr Ram Asrey, who was produced as PW-8 and has corroborated the aspect that injuries were suffered by mother and other family members of appellants as well. It is therefore submitted that the aforesaid testimony of PW-8 clearly indicated a quarrel having broken out between two families, resulting in injuries on both sides, and therefore the case of appellants would come within Exception 4 of Section 300 IPC, due to which appellant No.1 should have been convicted under Section 304 Part-II IPC and not under Section 304 Part-I IPC.
7. He further submits that the trial court has not at all concluded by any evidence that the blow administered by appellant no.1 upon deceased Idris was with the intention of causing death. It is submitted that mere knowledge that injury inflicted may result in death would be insufficient to bring a case, such as the present one, within the ambit of Section 304 Part I IPC.
8. It is further submitted that as per evidence, once the blow was inflicted upon the deceased Idris by appellant No. 1, family members of the said Idris sought to defend him, and there was a moment when the appellant(s) could have administered more than a single blow upon the deceased. It is therefore submitted that mere fact that no second blow was administered by the appellant(s) clearly indicates that there was no intention of causing death, although knowledge that the act may cause death may have been established. In such circumstances, conviction requires to be converted from Section 304 Part I IPC to Section 304 Part II IPC.
9. Learned counsel for appellants has also adverted to the defence led under Section 313 Cr.P.C. to submit that it was the case of defence that injury was suffered by the deceased Idris as a result of sudden quarrel between the families and owing to stone throwing between them. He has also adverted to the deposition of doctor as PW-8 to submit that injuries were in fact suffered on both sides, with the doctor deposing that injuries suffered by family members of appellants could have taken place on the same day, and the injury suffered by the deceased Idris could be as a result of brick batting.
10. He has placed reliance on judgments rendered by a Division Bench of this Court in Criminal Appeal No. 1483 of 1984, Kali Prasad Misra and another vs. State of U.P.; Criminal Appeal No. 2455 of 2004, Dinesh and 3 others vs. State of U.P.; and Criminal Appeal No. 141 of 2005, Shambhoo Sharan Pandey vs. State of U.P.
11. Learned Additional Government Advocate has opposed appeal with the submission that mere aspect that a single blow has been inflicted by appellant No.1 would be inconclusive to determine applicability of Section 304 Part II IPC, particularly since the intention to cause death is apparent from the deposition of attending doctor as PW-8, who indicates that injury suffered is 2 cms. 1 cm. bone deep on right part of head above 12 cms. above right ear. It is submitted that the attending circumstances are also required to be examined for applicability of either parts of Section 304 IPC.
12. Learned counsel has also placed reliance on judgments rendered by the Hon’ble Supreme Court in State of Rajasthan through the Secretary vs. Kanhaiya Lal reported in (2019) 5 SCC 639 and Mahesh Balmiki alias Munna vs. State of M.P. reported in (2001) SCC 319.
13. It is, therefore, submitted that testimonies of informant as PW-1 and the attending doctor as PW-8 clearly lead to a conclusion that even a single blow inflicted by appellant No.1 was in fact with knowledge and intention to cause death. He has also adverted to the fact that the incident is said to have taken place on 28.03.1997 at 07:00 p.m., while death has occurred on the very next day, i.e., 29.03.1997 at 5:15 a.m.
14. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that the trial court has relied heavily upon deposition of attending doctor, Dr. Ram Asrey, as PW-8 to sustain the plea of conviction under Section 304 Part I IPC. Trial Court has specifically recorded the aspect that injury suffered by the deceased was owing to a hard and blunt object and was kept under observation. It is also relied on the aspect that as per eyewitness account, injury suffered by the deceased was inflicted only by appellant No.1. The nature of injury suffered by deceased has also played a role in convicting appellants under Section 304 IPC without benefit of Part II thereof.
15. For the purpose of applicability of provisions of Section 304 IPC, it would be necessary to examine the same. Provisions of Section 304 IPC are as follows:
“304. Punishment for culpable homicide not amounting to murder.?
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death,
or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”
16. From a perusal of the aforesaid provision, distinction between Part I and Part II of Section 304 IPC is that the act done by the accused, if done with intention of causing death, would come within purview of Part I, but such an act, if done only with knowledge that it may likely cause death, but without intention to cause death, would come within the scope of Part II of the said Section.
17. It is, therefore, imperative to arrive at a conclusion whether the act done by appellant No.1, which resulted in death of deceased, was with any intention to cause death or not.
18. As has already been indicated, here-in-above, the trial court has recorded conviction under Section 304 Part I IPC primarily on the basis of deposition of attending doctor as PW-8.
19. It is a relevant factor that the aspect of culpable homicide has been explained in Section 299 IPC with culpable homicide amounting to murder being indicated in Section 300 IPC. Exception 4 to Section 300 IPC is applicable in case of a sudden quarrel having broken out between the parties, which takes place without premeditation and without the offender having taken undue advantage or acted cruelly and unusual manner.
20. With regard to applicability of Exception 4 of Section 300 IPC, it transpires from evidence, particularly the prosecution version that appellant-Kokey scolded the wife of informant with regard to meeting of wives of two families. Upon threat being issued by the appellant to the wife of informant, the deceased is said to have entered into heated exchange with the appellant(s) and it is in the course of such a heated exchange that appellant No.1 is said to have inflicted single fatal blow upon the deceased on head by means of a stick (lathi).
21. He is also said to have uttered words ‘???? ???? ???? ??’ prior to inflicting blow. The appellants in their defence under Section 313 CrPC have clearly taken a stand that it was in fact the injured and his family members, who entered into an altercation with their family members, particularly the mother of appellants and it was in defence thereof that the appellants entered into an altercation with the family of informant. It was, in the course of such an altercation that brick-batting took place in which the deceased was injured by a brick and not by any injury inflicted by appellant No.1-Chhangur by a stick.
22. The Hon’ble Supreme Court, in Khokhan alias Khokan Vishwas vs. State of Chhattisgarh reported in (2021) 3 SCC 365, has considered Exception 4 to Section 300 IPC in the following manner:-
“9. Section 300 IPC is in two parts. The first part is when culpable homicide can be said to be the murder and the second part is the exceptions when the culpable homicide is not murder. The relevant part of Section 300 IPC for our purpose would be Clause 4 to Section 300 and Exception 4 to Section 300 IPC. As per Clause 4 to Section 300 IPC, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury, such culpable homicide can be said to be the murder. However, as per Exception 4 to Section 300, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. As per Explanation to Exception 4 to Section 300 IPC, it is immaterial in such cases which party offers the provocation or commits the first assault.”
23. The aforesaid judgment specifically lays down a proposition that in case of a sudden quarrel or fight breaking out between the parties without pre-meditation, the aspect as to which party offers provocation or commits the first assault is immaterial.
24. The aforesaid defence which was raised by the appellants under Section 313 Cr.P.C. has been considered and rejected by the learned trial court primarily on the ground that the same was not corroborated by the appellants by production of any witness. Nonetheless, the testimony of doctor as PW-8 clearly indicates injuries having been sustained by both sides.
25. In such circumstances, when both sides had suffered injuries, it was incumbent upon the learned trial court to have adverted to injuries suffered by both sides.
26. For the purpose of applicability of Section 304 Part II of IPC, the Hon’ble Supreme Court in Pulicherla Nagaraju alias Nagaraja Reddy vs. State of Andhra A.P. reported in (2006) 11 SCC 444, has held as follows:-
“29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters ? plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may.”
27. In the present case, it is admitted that appellant No. 1 in fact is said to have inflicted single fatal injury to the deceased by a stick (lathi).
28. The Hon’ble Supreme Court, in Jugut Ram vs. State of Chhattisgarh reported in 2020 SCC OnLine SC 742, has held that a lathi is being carried by every villager in this country linked to his identity and is capable of being used as a weapon of assault, but does not make it a weapon of assault simpliciter and therefore, assault by a lathi on the head is always a question of fact. In the said case, conviction under Section 302 IPC was converted to Section 304 Part II holding as follows:-
“6. A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question of fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh v. State of Punjab [Virsa Singh v. State of Punjab, 1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ 818], which stand well established. Suffice it to notice from precedents that in Joseph v. State of Kerala [Joseph v. State of Kerala, 1995 SCC (Cri) 165], the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post-mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone. The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows: (Joseph case [Joseph v. State of Kerala, 1995 SCC (Cri) 165] , SCC p. 167, para 3)
“3.. The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient(sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years’ RI.”
29. On the said aspect, learned Additional Government Advocate has also placed reliance on judgments of the Hon’ble Supreme Court in Kanhaiya Lal (supra) and Mahesh Balmiki (supra), in which it has been held that mere fact that the deceased has sustained a single injury by a stick is not relevant for the applicability of Section 304 Part I or Part II IPC, and the attending circumstances are also required to be examined.
30. The judgments indicated here-in-above in the cases cited by learned Additional Government Advocate no doubt do not warrant any contradiction. However, in Joseph v. State of Kerala reported in 1995 SCC (Cri) 165, it has been held that a stick (lathi) is not a deadly weapon. In the said case, a heated exchange of words had occurred between deceased and accused over a stake in gambling. It was in the course of altercation that the accused dealt two blows on the head of deceased. Hon’ble Supreme Court has enunciated that the whole occurrence was as a result of trivial incident and it is in such circumstances that two blows administered on the head of deceased could not indicate that he intended to cause injury which was sufficient to cause death. It was held that at best it may be said that he had knowledge but not intention to cause death and therefore, the offence would be culpable homicide not amounting to murder due to which conviction was recorded under Section 304 Part – II IPC.
31. In Pappu Vs State of M.P. reported in (2006) 7 SCC 391, an altercation ensued during a marriage function due to which one of the accused dealt a lathi blow on the left side of head of the deceased while the other co-accused caused injuries on left shoulder and left arm of deceased. Hon’ble Supreme Court held that the assault took place as a result of sudden quarrel without any pre-meditation, which indicated that accused had not taken any undue advantage nor acted in a cruel manner and therefore conviction was recorded under Section 304 Part II IPC. The proposition of law is as follows:-
13. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’.
14. It cannot be laid down as a rule of universal application that whenever one blow is given, Section 302 IPC is ruled out. It would depend upon the weapon used, the size of it in some cases, force with which the blow was given, part of the body it was given and several such relevant factors.”
32. In Gurumukh Singh vs. State of Haryana reported in (2009) 15 S.C.C. 635 (Paras 3 and 14 to 26), facts were that the accused persons armed with lathi came and stopped the tractor from passing through the disputed passage and when tractor was not stopped, the accused Gurumukh Singh gave a lathi blow on the head of the deceased Huzoor Singh rendering him unconscious resulting in his fall to the ground and subsequently died in the hospital. Hon’ble Supreme Court converted the conviction of accused from Section 302 IPC to Section 304 Part II IPC and sentenced for 7 years R.I. while after laying down certain factors for awarding appropriate sentence to the accused, held, as under:
“23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without pre-meditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.”
33. In Litta Singh and another vs. State of Rajasthan reported in (2015) 15 SCC 327 (Paras 22, 23, 24, 26 and 27), Hon’ble Supreme Court explained the meaning of the word “maro maro” and held as under while converting the conviction under Section 302 to 304 Part II IPC:-
“22. The word “maro maro” can never mean “kill kill”. The word “kill means to cause the death of a person or animal. It also means to put some one to death, to murder, to slaughter. On the other hand, the word “maro maro” means to beat, to cause assault. Here the thin line of distinction lies between the two words. If the voice is “kill kill”, it means to cause death of the person and to finish him. Had the intention of the person been to make such call or voice “kill kill” and on the basis of such call the accused persons had assaulted the deceased, then the intention would have been clearly to kill and murder the deceased. Here on hearing the call “maro maro”, the accused persons with Boga Singh started beating the deceased.
23. Considering the nature of the injury caused to the deceased and the weapons i.e. lathi and gandasi (sickle) used by them, it cannot be ruled out that they assaulted the deceased with the knowledge that the injury may cause death of the person. Moreover, there is no evidence from the side of the prosecution that the accused persons pre-planned to cause death and with that intention they were waiting for the deceased coming from the field and then with an intention to kill the deceased they assaulted him.
24. It is well settled proposition of law that the intention to cause death with the knowledge that the death will probably be caused, is very important consideration for coming to the conclusion that death is indeed a murder with intention to cause death or the knowledge that death will probably be caused. From the testimonies of the witnesses, it does not reveal that the accused persons intended to cause death and with that intention they started inflicting injuries on the body of the deceased. Even more important aspect is that while they were beating the deceased the witnesses reached the place and shouted whereupon the accused persons immediately ran away instead of inflicting more injuries with intent to kill the deceased.
26. After analyzing the entire evidence, it is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injuries which was sufficient to cause death, but we are convinced that the injury was not intended by the appellants to kill the deceased.
27. In the facts and circumstances of the case, in our considered opinion, the instant case falls under Section 304 Part II IPC as stated above. Although the appellants had no intention to cause death but it can safely be inferred that the appellants knew that such bodily injury was likely to cause death, hence the appellants are guilty of culpable homicide not amounting to murder and are liable to be punished under Section 304 Part II IPC.”
34. Upon applicability of aforesaid judgments in the present facts and circumstances, it is evident from evidence on record that the appellant No.1 had administered a single lathi blow upon the deceased during the course of a heated exchange. As has been held by Hon’ble Supreme Court indicated here-in-above, in Jugat Ram (supra) that lathi is not a weapon of assault but is commonly carried by a villager in this country, it cannot be said that merely because the appellant was carrying a lathi, any pre-meditation could be attributed to him.
35. On the contrary, it is clear from narration of incident even by eyewitness account that the accused dealt a single blow upon the deceased during a heated exchange in a sudden quarrel without any pre-meditation nor taking any undue advantage or acting any unusual manner. Exception 4 to Section 300 IPC therefore is applicable in the present facts and circumstances due to which this Court finds that conviction of appellant No.1 is required to be modified to one under Part II of Section 304 IPC. In such circumstances, as indicated here-in-above, conviction of appellant No.1 is converted from 304/34 IPC to Section 304 Part II read with Section 34 IPC and he is sentenced to three years rigorous imprisonment. The fine and default thereof are maintained.
36. Although a plea of probation has not been taken by the appellants before Trial Court, the said aspect has been dealt with by Hon’ble Supreme Court in Rattan Lal v. State of Punjab reported in AIR 1965 SC 444, wherein it has been held that such a plea can be raised even at the appellate stage.
37. Learned counsel for the accused-appellants submits that appellants have not been convicted previously for any offence and at the outset, submits that he 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.
38. In view of aforesaid submission of learned counsel for accused-appellants, 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 30.04.2004, as modified, is hereby upheld.
39. Learned counsel for accused-appellants submits that in view of aforesaid facts and circumstances including the fact that appellants have 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-appellants. 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.
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.
40. Learned counsel for appellants submits that the accused-appellants have 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.
41. Learned Additional Government Advocate has opposed criminal appeal on the ground that judgment and order of conviction is cogent and has been passed after due consideration of relevant material and evidence. He, on the basis of instructions dated 17.07.2026, which are on record, submits that except the present case, one more case, i.e., Criminal Case No. 127 of 2020 is registered against appellant Nos.1 & 2. It is also submitted that in terms of provisions under Sections 360/361 CrPC, this Court may consider the grant of benefit.
42. 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.
43. 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.
44. 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.
45. 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.
46. 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.”
47. 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.
48. Coming to the point of desirability of extending the benefit of Probation Act to the accused-appellants, 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.”
49. 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.”
50. 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 three years with fine having been imposed. In respect of Criminal Case No. 127 of 2020 registered against appellant Nos.1 & 2, it is stated that at the time of conviction of appellants in the year 2004, there was only one case case. Therefore, benefit of the Act is extended to all appellants.
51. 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 all accused-appellants requires modification.
52. The appeal is partly allowed with following modifications:-
52.1. The conviction of accused-appellant No.1 by courts below is modified to Section 304 Part II read with Section 34 IPC with fine, as indicated above, whereas conviction of accused-appellant No.2 & 3 by courts below is upheld. The sentence of appellant No.1-accused is modified to reduction to 3 years and all appellants are provided benefit of Section 4 of the U.P. Probation of Offenders Act and are released on probation on the condition that each of them 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 their personal bonds before the court below and also an undertaking to the effect that they 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 appellants will be subjected to undergo the sentence as awarded by the courts below. The bonds aforesaid will be filed by the appellants within one month from today before the District Probation Officer, Balrampur under intimation to the concerned court.
53. A certified copy of the order be also sent to the court concerned and District Probation Officer, Balrampur for necessary compliance, forthwith
(Manish Mathur,J.)
July 24, 2026
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