Allahabad High Court
Qasim vs State Of U.P. on 28 July, 2026
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:51144
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 931 of 2004
Qasim
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Khaleeq Ahmad Khan
Counsel for Respondent(s)
:
Govt.Advocate
Court No. - 12
HON'BLE MANISH MATHUR, J.
1. Heard Mr. Aman Siddiq, Advocate, holding brief on behalf of Mr. Khaleeq Ahmed Khan, learned counsel for appellant and learned AGA for respondent state.
2. The instant Criminal Appeal under Section 374(2) Cr.P.C. has been filed against judgment and order dated 22nd March, 2004 passed by Additional Session Judge, Court No.10, Sitapur in Sessions Trial No. 483 of 1997, State v. Qasim, arising out of Case Crime No. 249 of 1996, under Section 307, 504 I.P.C., Police Station Mahmudabad, District Sitapur convicting and sentencing the appellant as under:-
(i) under Section 307 I.P.C. to 10 years rigorous imprisonment and a fine of Rs.5,000/- and in default of fine, three month’s additional imprisonment.
3. As per per prosecution version, incident is said to have taken place on 21st November 1996 in the marketplace when complainant and his brother Nand Kishore were shopping and had a dispute with appellant due to which at about 5:00 p.m. on the same, the appellant along with co-accused Kandhai and Vinod abused the appellant and his brother and assaulted the informant’s brother with knives resulting in grievous injuries. It is alleged that on the intervention of passers, Baba Deen, Shiv Prasad, Jagdish and others, the appellant and co-accused escaped.
4. After investigation, charge sheet was submitted under section 307 and 504 IPC with charges also being framed under the same sections. Prosecution examined four witnesses while defence was led under section 313 Cr.P.C. leading to conviction.
5. Learned counsel for appellant submits that trial court has erred in recording a conviction under section 307 IPC since none of the ingredients of aforesaid section were applicable. He has adverted to the testimony of the attending Dr. A.K. Srivastava as PW3 to submit that although seven injuries were certified upon the injured Nand Kishore but the doctor has not certified that any of the said injuries were threatening to life or could have been fatal. He further submits that neither the prosecution was able to establish nor has any finding being recorded by trial court that the injuries were inflicted with the knowledge or intention that they would cause death of the injured. It is submitted that as per evidence, it has been borne out that a sudden quarrel took place between the parties and there was no no pre-meditation with regard to said altercation or the injuries which were inflicted. He has also adverted to the testimony of the attending doctor as PW3 to submit that said factors have not been considered in the correct prospective by the trial court and at best only provisions of section 324 IPC can be said to have been made out. He submits that although plea of first offender was not taken before trial court but has been specifically taken as ground I in the memo memorandum of appeal and as per judgment rendered by Supreme Court in the case of Rattan Lal v. State of Punjab AIR 1965 SC 444 such a plea can be raised for the first time in appeal as well.
6. Learned AGA has opposed appeal with submission that mere fact that eyewitness as well as the statement of injured have attributed injuries altercation and infliction of seven injuries by the appellant with knife clearly indicates the aspect that the injuries were inflicted clearly with intention to cause death. It is submitted that trial court has therefore rightly convicted the appellant under section 307 IPC. He further submits that as per testimony of the attending doctor as PW3, it is only injuries four and seven which were certified to be simple in nature while the other injuries were kept under observation and were grievous enough to have caused death. He further adverts to the aspect that doctor in his testimony has clearly stated that the injuries could have been inflicted with knife or by any sharp-edged weapon. He further submits that seven injuries were inflicted by the appellant. on vital parts of the body such as chest and stomach which indicates every intention to cause death. He submits that plea of first offender has not been taken before trial court.
7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the aspect evident from the impugned judgment is that conviction has been recorded under section 307 IPC. The testimony of the attending Dr. A.K. Srivastava as PW3 indicates seven injuries which are as follows:-
“??? ????:- ??? ?? ??? ??????????, ??? ??? ????????, ????????? ????????? ??????? ????????? ???? ??????? ?? ???? ???? ???? ??:-
?????? 21.11.96 ?? ??? C.S.C ????????? ??? ??????? ?????????????? ?? ?? ?? ??????? ??? ?? ??? ??? 7 ??? ????? ???? ????? ????? ???? ??? ????? ??? ???? 35 ???? ?????? ????? ??????? ???? ????????? ?? ?? ?? ????? ?? ??????? ???? ??? ???? ??? ??? ??? ???? ????????? ???? ??? ?? ????? ?? ?? ?????????? ????? ??? ???
1. ??? ??? ??? 15 cm x 3.5 cm ????? ????? ?????? ??? ?? ???? ?? ????? ??? ????? ????? ?? 5 ?????? ????? ??? ?? ???? ??? ?? ??? ?? ??? ?????? sharp ??? ???? ???
2. ??? ??? ??? 14 cm x 2 cm ????? ?????? ??? ?? ??? ?? ???? ?? ????? ??? ??? ??? 1 ?? 2 cm ???? ? ???? ??? ??? ?? ???? ??? ?? ??? ?? ??? ?????? sharp ??? ???? ???
3. ??? ??? ??? 14 cm x 2 cm ????? ??? ??????? ?? ??? ?? slirmem ?? ??? ???? ??? ??? ?? ???? ??? ???? ??? ?? ?? ?????? ??? ??? ???? ???
4. ??? ??? ??? 5.5 cm x 1 cm ???? ?? ???? ??? ?? ????? ?? ??? ??? 2 ?? 1 cm ???? ????? ?? ?? ??? ?? ???? ??? ???? ??? ??? ?????? sharp ??? ??? ???
5. ??? ??? ??? 12 cm x 2 cm x ????? ??? ??????? ??? ?? ????? ?? ??? ??? 3 ? 4 ?? ??? ????? ??? ?? ???? ??? ?? ??? ??? ?????? sharp ??? ???? ???
6. ??? ??? ??? 18 cm x 4 cm x ????? ??? ??????? ??? ???? ??? ?? ???? ?? 4 ?????? ???? ???? ??? ??? ?? ?? ??? ??? ?????? sharp ??? ???? ???
7. ??? ??? ??? 4 cm x 1.3 cm x ???? ?? ???? ???? ?? ???? ??? ????? ????? ?? 8 ?????? ??? ? ????? ?? ?? ??? ?? ???? ??? ?? ??? ??? ?????? sharp ??? ???? ???
??? ??? 1, 2, 3, 5 ? 6 ??? ??????? ??? ?? ??? ??? 4 ? 7 ?????? ???? ??? ????? ???? ?? ?????? ???? ?? ??????? ?? ? ???? ??? ????? ?? ????? ?? ??????? ?? ????? ???? ? ????? ?? ????????? ?? ???? ????? ?? ??? ???? ?????????? refer ???? ??? ?? ?????? ?????? ?? ?????? ?? ??? ???????? ?????????? ???? ?? refer ???? ???? Injury Report ????? ?????? ?????? ???? ??? ? ????????? ??? ????? ?? ?? ??? ?? ????? ?? ????? ?? ????? ? ?????? ?????? ????? ??? ??? ?? ??????? ?- 2 ???? ???? ????? ?? ???? ?????? 21.12.96 ???? ???? ??? ?? ???? ????? ???? ????? ??? ?? ???? ?????? ???????? ??? ?? ???? ????”
8. From the testimony of injured, it is evident that injured as PW2 as well as by informant as PW1, the allegations lavelled in FIR have been corroborated. The attending doctor has also in his testimony certified that the injuries suffered by injured could have been caused by sharp edged weapon such as knife.
9. For applicability of section 307 IPC, it would be conducive to advert to the said provision, which are as follows:-
“307. Attempt to murder.?
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.? When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.
(b) A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.”
10. The aforesaid proposition of law has been enunciated upon by Hon’ble Supreme Court in the case of Roshan Lal versus The State of Haryana and another, 2026 SCC Online SC 921. In the case of Roshan Lal (supra) Supreme Court has indicated the aspects for applicability of provisions of Section 307 IPC. The relevant portions of the judgment are as follows:-
” 26. In order to constitute an offence under Section 307 IPC two elements are essential to be established. First, the intention or knowledge to commit murder. Secondly, the actual act of trying to commit the murder. Thus, it must have both the necessary mens rea and actus reus. Hence, to sustain a conviction under this section, it is necessary to establish that had the accused succeeded in his attempt and had the victim met his death because of such act, the offence of murder punishable u/s 302 IPC would be established.
27. However, an accused charged u/s 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of simple hurt, as the determinative factor is intention or knowledge and not the nature of the injury. This principle was discussed by this Court in State of Madhya Pradesh v. Saleem @ Chamaru, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329, the relevant paragraph of which reads hereunder:
12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof.?
Nevertheless, the nature of injury actually caused does render considerable assistance to the court in ascertaining the intention of the accused. However, courts may also ascertain the intention from other circumstances, even without reference to actual wounds. The aforesaid principle stands reiterated in the case of Bipin Bihari v. State of M.P., (2006) 8 SCC 799 : (2007) 1 SCC (Cri) 25, as follows:
9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof?
xxx xxxx xxxx
31. The words ?such intention? found in Section 307 IPC, refer to the intention referred to in Section 300 IPC. It means : (i) intention to cause death; (ii) intention to cause such bodily injury, which the offender knows is likely to cause death; (iii) intention to cause such bodily injury, which is sufficient in the ordinary course of nature to cause death.
The essential ingredient of the offence of attempt to murder is the intention to cause death. Such intention exists prior to the actual attempt and must be established independently of the act itself or the actus reus. Once the requisite intention to commit murder is proved, the eventual outcome of the attempt becomes irrelevant, unless the attempt culminates in death, in which case the offence would fall within Section 300 IPC. In the absence of proof of intention, a conviction under this provision cannot be sustained.
32. Intention, however, can be inferred from surrounding circumstances, such as the type of weapon employed, the words spoken by the accused at the time of the incident, the motive behind the act, the parts of the body targeted, the nature and extent of the injuries inflicted, as well as the force and manner in which the blows were delivered.
33. Tested on the anvil of the aforesaid legal principles, the factual matrix of the present case may now be considered. There is no history of enmity known between the appellants and the injured. The prosecution has also failed to bring on record any material suggesting prior planning, preparation, or concerted intention on the part of the appellants to cause the death of Amar Singh (PW3). On the contrary, the evidence reveals that the incident occurred suddenly when the injured intervened in an altercation involving the driver of the jeep. The assault, therefore, appears to have arisen in the heat of the moment and as a spontaneous reaction to such intervention, rather than pursuant to any pre-conceived intention to eliminate the complainant.
34. The circumstances, viewed holistically, suggest that the object of the appellants was primarily to deter or intimidate the complainant from interfering in the ongoing altercation. It is also significant that the weapons allegedly used by the appellants were ordinary lathis, which, though capable of causing grievous hurt depending upon the manner of use, cannot in the facts of the present case be regarded as inherently deadly weapons. There is nothing on record to indicate that the appellants persisted in the assault with such brutality or ferocity so as to unmistakably disclose an intention to cause death.
35. Undoubtedly, the injuries sustained by Amar Singh (PW3) were grievous in nature, and the medical evidence demonstrates that the injury to the head subsequently led to serious complications. However, the gravity of the injury by itself cannot be determinative of the offence under Section 307 IPC unless the prosecution is able to establish the requisite mens rea contemplated under the provision. The intention to commit murder cannot be presumed merely because the injuries were ultimately opined to be dangerous to life. In the absence of evidence showing prior motive, premeditation, repeated deliberate blows with deadly weapons, or any conduct indicative of a determined effort to cause death, this Court is unable to hold that the appellants possessed the intention or knowledge necessary to attract Section 307 IPC in the light of Bipin Bihari (supra).
36. At the same time, the evidence on record clearly establishes that the appellants voluntarily caused grievous injuries to the complainant, particularly on vital parts of the body, resulting in fractures and prolonged medical treatment. At this juncture, it is imperative to reproduce Section 320 IPC for our reference:?
Grievous hurt.? The following kinds of hurt only are designated as ?grievous?:?
First. ?Emasculation.
Secondly. ?Permanent privation of the sight of either eye.
Thirdly. ?Permanent privation of the hearing of either ear.
Fourthly. ?Privation of any member or joint.
Fifthly. ?Destruction or permanent impairing of the powers of any member or joint.
Sixthly. ?Permanent disfiguration of the head or face.
Seventhly. ?Fracture or dislocation of a bone or tooth.
Eighthly.? Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits”
11. Upon applicability of aforesaid judgments in the present facts and circumstances, it is evident that although seven injuries are said to have been inflicted upon the injured but the attending doctor A.K. Srivastava as PW3 has certified the injuries number four and seven to be simple in nature while remaining injuries were required to be kept under observation. No subsequent medical report has been considered by trial court. The doctor in his testimony has not indicated the nature of injuries number one, two, three, five and six. It is also evident that although as per allegations, a knife is said to have been used for purposes of inflicting injuries but all the seven injuries are in the nature of incised wounds and not stab wounds. In the testimony of the doctor it has also not been indicated that any or all of injuries sustained by injured could have been fatal to life. It is also evident on record from the testimonies of the informant as PW1 and the injured as PW2 that a sudden quarrel had broken out between the parties in the marketplace and therefore the evidence did not suggest any premeditation in altercation or subsequent assault.
12. From a perusal of the impugned judgment, it is also self-evident that while conviction has been recorded under section 307 IPC, there is not even a whisper as to the applicability of basic ingredients of section 307 IPC i.e. the intention or knowledge of the accused that his act would result in death. The trial court apparently has been swayed only by the factor of seven injuries having been inflicted without adverting to the nature of injuries and whether they were serious enough to have caused death or even the intention of the appellant to have caused injuries which would be grievous enough to have ordinarily caused death.
13. In view of aforesaid, this court is of the considered opinion that prosecution has failed to establish a case beyond reasonable doubt for applicability of section 307 IPC.
14. In view of aforesaid, the conviction recorded against appellant under section 307 IPC is hereby set aside.
15. Nonetheless it is also evident from the record that there is corroborating evidence of the incident and an assault at the instance of the appellant which resulted in injuries upon brother of the informant. The question therefore arising is whether the appellant is liable to be convicted under section 324 IPC or 326 IPC.
16. The basic difference between the aforesaid two sections is clearly the nature of injuries which are inflicted by an accused with section 324 indicating voluntarily hurt while section 326 IPC indicates voluntary infliction of grievous injury.
17. The definition of the term ‘grievous’ is defined under section 320 IPC and upon applicability of aforesaid section in the present facts and circumstances, it is quite evident that none of the injuries inflicted by appellant come within definition of grievous injury. In such circumstances, section 326 IPC would not be applicable but since hurt has been caused voluntarily, the appellant would thus be liable to be convicted under section 324 IPC.
18. In view of discussion made herein above and conviction under section 307 IPC being set aside, the same is converted to section 324 IPC. The sentence accordingly is also modified to 3 years.
19. In view of the fact of modification of the conviction and sentence and particularly in view of ground I having been taken in the memorandum of appeal, this court finds the appellant entitled for benefit of probation under Probation of Offenders Act 1958, as per judgment of Supreme Court in the case of Rattan Lal (supra).
20. 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.
21. 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.
22. 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.
23. 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.
24. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, since after modification of conviction and sentence 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.
25. 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.
26. 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.
27. 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.
28. 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.”
29. 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.
30. 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.”
31. 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.”
32. 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 1996 with maximum sentence of ten years with fine having been imposed. More than 29 years since have passed.
33. The appeal is partly allowed with following modifications:-
33.1. The conviction of the accused-appellant by courts below is modified to one under Section 324 IPC from Section 307 IPC being set aside. 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, Sitapur under intimation to the concerned court.
34. A certified copy of the order be also sent to the court concerned and District Probation Officer, Sitapur for necessary compliance, forthwith.
(Manish Mathur,J.)
July 28, 2026
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