Allahabad High Court
Guddu @ Arun Kumar Tewari And Another vs State Of U.P. on 9 July, 2026
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:45027
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1825 of 2008
Guddu @ Arun Kumar Tewari And Another
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
K.N. Misra
Counsel for Respondent(s)
:
G.A., Raj Priya Srivastava
Court No. - 12
HON'BLE MANISH MATHUR, J.
1. Heard learned counsel for appellants and learned A.G.A. for respondent-State.
2. The instant Criminal Appeal under Section 374(2) CrPC has been filed against judgment and order dated 01.08.2008 passed by Additional Sessions Judge/Fast Track Court, Balrampur in Sessions Trial No.122 of 2006; State v. Guddu alias Arun Kumar Tewari & Anr. arising out of Case Crime No.367 of 2005, under Section 308 IPC, registered at Police Station Kotwali Dehat Balrampur, District Balrampur convicting and sentencing the appellants as under:-
(i) under Section 308/34 IPC to three years rigorous imprisonment each.
3. As per prosecution version, incident is said to have taken place on 01.08.2005 at about 03.00 P.M. when one Pappu called away Anupam, the younger brother of informant to accompany him to the market. It is alleged that when Anupam did not return, his family members inquired from Pappu with regard to his absence and who in turned informed them that Anupam is sitting at the shop of one Jai Ram. It is submitted that when all the persons including the accused went to the shop of Jai Ram, they were unable to locate Anupam which is resulted in a dispute between informant, Pintoo and Pappu in which the third brother Guddu (appellant no.1) also entered the fray with the three brothers assaulting the informant and his family members due to which they suffered grievous injuries.
4. FIR was thereafter registered and charge-sheet filed with charges also being framed under Section 308 IPC. Prosecution examined as many as 12 witnesses whereafter defence was led under Section 313 Cr.P.C. resulting in conviction of the appellants.
5. Learned counsel for appellants submits that trial court has erred in recording a conviction against appellants since prosecution was unable to establish their case beyond reasonable doubt. It is submitted that major contradiction in the statements of prosecution witnesses have been ignored by trial court. It is submitted that there is no cogent evidence on record whereby conviction of appellants under Section 308/34 IPC is sustainable. He further submits that trial court has not taken into account the aspect that although incident is said to have taken place on 01/02.08.2005, the first information report was lodged after ten days without any satisfactory explanation for same. He further submits that there were only two injuries found on the body of injured and the same are not attributable to the weapons allegedly carried by the appellants. It is submitted that despite plea of Probation having been taken, the same has not been allowed without cogent reason.
6. Learned AGA has opposed the appeal with the submissions that the trial court has recorded cogent reasons for recording conviction against appellants under Section 308 IPC particularly in view of testimony of the injured informant as well as other eye witness accounts. It is submitted that the injuries sustained were also corroborated by the attending Dr. Alok Kumar Verma as P.W.7. It is however submitted that plea of Probation has not been taken before the trial Court.
7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is evident that trial court has recorded conviction under Section 308 IPC looking to the deposition of the injured, informant as well as other eye witnesses. The injuries have also been corroborated by attending Dr. Alok Kumar Verma as P.W. 7 and Dr. G. K. Sharma as P.W. 6. In view of aforesaid, this Court does not find any occasion to interfere with the impugned judgment.
8. With regard to plea of Probation, learned AGA has been provided written instructions dated 03.06.2026, which are taken on record and as per which the appellants do not have any previous criminal history.
9. In the case of Sitaram Paswan and another Vs. State of Bihar, reported in AIR 2005 SC 3534, it has been held that Section 4 of the Probation of Offenders Act,1958 can also be taken at the stage of appeal even though it has not been taken before the trial court. The same analogy has also been drawn by Hon?ble the Supreme Court in the case of Rattan Lal v. State of Punjab; AIR 1965 SC 444.
10. 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.
11. Learned counsel for appellants submits that the accused-appellants 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.”
17. 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.
18. Coming to the point of desirability of extending the benefit of Probation Act to the accused-appellant, in Sitaram Paswan (supra), 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.”
19. 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.”
20. 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 2005 with maximum sentence of three years having been imposed. Almost twenty one years since have passed and as per impugned judgment, there is no other pre or post-criminal antecedent of the accused appellants.
21. 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-appellants stands modified as indicated here-in-above.
22. The appeal is partly allowed with following modifications:-
19.1. The conviction of the accused-appellants by courts below is upheld. The sentence of appellants-accused is modified to the tune that they 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 two years 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.
23. 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 9, 2026
Subodh/-
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