Partly allowed

Smt. Sita v. State

Rajasthan HC24 Nov 2022CRLA/657/2005

Case brief

AI extract

What is this about?

In an appeal against conviction and sentence for culpable homicide not amounting to murder, the Rajasthan High Court held that the appellant, a lady, was eligible for probation under Section 4 of the Probation of Offenders Act, 1958, despite the crime's gravity and the lack of a statutory minimum sentence exclusion, and granted relief after elapsing 17 years.

What did the court decide?

The sentence set aside; appellant released on probation under Section 4 upon furnishing a personal bond and two sureties; appellant required to pay costs of Rs. 25,000 to District Legal Service Author

Smt. Sita Vs State — Service and Employment | Rajasthan HC (2022)

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[CRLA-657/2005]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 657/2005

Smt. Sita

----Appellant

Versus

State of Rajasthan

----Respondent

For Appellant(s) : Mr. Jubin Mehta for Mr. P.R. Mehta. For Respondent(s) : Mr. M.S. Bhati, PP.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Order

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24/11/2022

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This Criminal Appeal has been preferred under Section 374(2) Cr.P.C. praying for the following reliefs:-

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“It is therefore, humbly & respectfully prayed that this appeal may kindly be accepted and allowed and the judgment dated 26.8.2005 passed in aforesaid sessions case No.47/2005 may kindly be quashed and set aside. The sentence awarded by the trial court also be set aside. The appellant may be acquitted from the charges. Any other relief favourable to the appellant may kindly be granted.”

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The matter pertains to an incident that occurred in the year 2005 and the present appeal has been pending since 2005.

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Vide impugned judgment dated 26.08.2005 the learned Additional District & Sessions Judge (Fast Track), Banswara in Sessions Case No.47/2005 convicted accused-appellant for the offence under Section 316 IPC and sentenced to undergo three years simple imprisonment with a fine of Rs.1000/- in default of

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payment of fine, further to undergo fifteen days simple imprisonment.

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Learned counsel for the parties submit that it is a small matter and could be disposed of today, upon which, the submissions were permitted. 5. Learned counsel for the appellant submits that on 13.03.2005 at about 01:30 PM while passing through the filed Smt. Sita allegedly kicked Smt. Narda, which caused delivery of dead child. Learned counsel further submits that PW-2 (Dr. Ravi Upadhyay) and PW-3 (Dr. Ramnarian Verma) have categorically deposed that the delivery could not successfully take place because the child was delivered prematurely.

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Learned counsel for the appellant further submits that the appellant is the lady and the incident is about 17 years old and therefore, sending her back to the custody would not be in the interest of justice. 7. Learned counsel for the appellant also submits that in a limited relief, the Court may consider granting of benefit of Section 4 of the Probation of Offenders Act, 1958 (“the Act of 1958”) as the present offence is not punishable with life imprisonment for life or death and being an incident, which suddenly happened while Sita & Nardan were passing through the field, in which, no weapon or any kind of external sources were attributed with the injury, it would be appropriate to grant such relief.

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Learned counsel for the appellant makes a limited prayer that in the aforesaid factual matrix and while keeping into consideration that the appellant being a lady, the benefit of Section 4 of the Act of 1958 be extended to the present appellant.

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Learned counsel for the accused-appellant further submits that the sentence awarded to the accused-appellant was suspended by this Hon’ble Court vide the order dated 02.09.2005 passed in S.B. Criminal Misc. Application for Suspension of Sentence No.628/2005 and thus, she is on bail. 10. Learned counsel for the accused-appellant however, makes a limited prayer that the accused-appellant may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 ( hereinafter referred to as ‘the Act’ ).

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For the sake of brevity, the said sentence is reproduced as hereunder:-

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

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(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises

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jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

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(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3)…

(4)…

(5)... ”

On the other hand, learned Public Prosecutor vehemently opposes the present appeal and submits that while maintaining the conviction, if this Court is inclined to grant the benefit of Section 4 of the Act of 1958, then the cost in the proceedings under Section 5, Sub Section (1), Clause (b) to be imposed upon the present appellant.

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Heard learned counsel for the parties as well as perused the record of the case.

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In the case of Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC , the Hon’ble Apex Court observed as under:-

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“ The Probation of Offenders Act is a reformative measure and its object is to reclaim amateur offenders who, if spared the indignity of incarceration, can be usefully rehabilitated in society .

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In recalcitrant cases, punishment has to be deterrent so that others similarly minded may warn themselves of the hazards of taking to a career of crime. But the novice who strays into the path of crime ought, in the interest of society, be treated as being socially sick. Crimes are not always rooted in criminal tendencies and their origin may lie in psychological factors induced by hunger, want and poverty. The Probation of Offenders act recognises the importance of environmental influence in the commission of

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crimes and prescribes a remedy whereby the offender can be reformed and rehabilitated in society.”

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In the case of Brij Lal Vs. State of Rajasthan RLW 2022

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Raj 945 , a Coordinate Bench of this Court observed as under:-

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“ Under Section 4 of the Probation of Offenders Act nature of offence is one of the major-criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration... ”

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14.1 In the case of Mohd. Hashim Vs. State of U.P. & Ors., (2017) 2 SCC 198 , while reiterating the ratio decidendi laid down in Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82 , the Hon’ble Apex Court observed as under:

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“… The Court has further opined that though the discretion as been vested in the court to decide when and how the court should form such opinion, yet the provision itself provides sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient...”

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14.2 In the case of Lakhvir Singh and Ors. Vs. The State of Punjab and Ors. (2021) 2 SCC 763 wherein the Hon’ble Apex Court of India, with regard to the application of the Probation of Offenders Act, 1958 vis-a-vis those Acts wherein a minimum sentence of imprisonment has been prescribed by the legislature, observed as under:-

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“Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as 'the PC Act') prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das (supra), this Court noted that if the object of the

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legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali (1979) 2 SCC 279. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non-obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act.5 It is in this context, it was observed in State of Madhya Pradesh v. Vikram Das (Supra) that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence Under Section 397 of Indian Penal Code, the offence in the present case . In fact, the observation made in Joginder Singh v. State of Punjab ILR (1981) P & H 1 are in the same context.”

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This Court, on overall consideration of the facts including the fact that the appellant is a lady and 17 years have elapsed since the incident; the doctors deposition; ambit of Section 4 of the Act of 1958 and other factual matrix on record, is inclined to grant the benefit of Section 4 of the Act of 1958, while maintaining the impugned order, which does not call for any interference.

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This Court is conscious of the fact that Section 316 IPC is punishable with a maximum imprisonment up to ten years, therefore, the Section 4 of Act of 1958 will apply in the present case.

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In the understanding of this Court that the benefit of Section 4 of the Act of 1958 ought to be given and the same is directed to be given to the appellant. 18. Thus, this Court, after taking into due consideration the legislative intent of the Act and the decisions rendered by the Hon’ble Apex Court in Arvind Mohan (supra) , Mohd. Hashim (supra) and in Lakhvir Singh , and by this Hon’ble Court in Brij Lal (supra) deems it appropriate to extend the benefit of the Act to the accused-appellant.

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Resultantly, the present appeal is partly allowed. While maintaining the conviction of the present accused-appellant for the offence under Section 316 IPC, as recorded by the learned Court below in the impugned judgment, this Court interferes only with the sentence part of the said judgment, and directs that the appellant shall be released on probation, under Section 4 of the Act of 1958, upon her furnishing a personal bond in the sum of Rs.50,000/- and two sureties in the sum of Rs.25,000/- each to the satisfaction of the learned Trial Court with a further undertaking that she shall maintain peace and good behaviour for a period of six months and shall not repeat the offence. The appellant is on bail. She need not surrender. Her bail bonds stand discharged accordingly. All pending applications stand disposed of. Record of the learned Court below be sent back forthwith.

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While exercising its powers under Section 5 of the Act of 1958, it is also directed that under Section 5(1)(b) of the Act of

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1958, the appellant shall be required to submit a cost of Rs.25,000/- to the District Legal Service Authority, Banswara within a period of six months.

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It is needless to say that Section 12 of the Act of 1958 shall not completely remove the disqualification attached to the conviction for all purposes.

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(DR.PUSHPENDRA SINGH BHATI), J.

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35-Jitender/-

Smt. Sita v. State

Case brief

What is this about?

What did the court decide?

Smt. Sita v. State

Case brief

What is this about?

What did the court decide?

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