STATE OF MADHYA PRADESH Vs. NARENDRA KUMAR

JUDGEMENT

(1.) This appeal has been preferred by the State of Madhya Pradesh seeking enhancement of the sentence imposed upon the respondent-accused and for assailing the judgment dated 23-3-1986 of the Court of IVth Addl. Sessions Judge, Durg whereby on conviction of the respondent-accused for an offence punishable under Section 376 of I.P.C., he has been released on probation on executing a bond under the Provisions of Probation of Offenders Act, 1958.

(2.) Shri A. K. Verma, learned Panel Lawyer appearing for the State submits that the offence under Section 376 of I.P.C. is punishable for life imprisonment and, therefore, Section 4(1) of the Probation of Offenders Act, 1958 cannot be taken aid of by the trial Judge for releasing the respondent-accused on probation for a good conduct; by executing a bond. It is pointed out that the decision of learned single Judge reported in 1965 MPLJ Note No. 42; Daulat v. State is misleading. It is not a full report of the judgment and most likely in that case the conviction was not under Sec. 376, IPC but some other lesser offence. Hence benefit of Section 4 of the Probation of Offenders Act was given to the accused in that case.

(3.) Since the accused is not represented by any counsel, on our request Shri S. C. Datt, learned Senior counsel appears to assist us and we thankfully acknowledge his services. Shri Datt submits that decision reported in 1965 MPLJ Note No. 42 appears to be a mis-reporting and Section 4 of the Probation of Offenders Act cannot be made applicable to an accused who is convicted of an offence under Section 376, IPC which is punishable for life imprisonment. Learned counsel on behalf of the accused, further submits that when the appeal by the State is preferred, under Section 377(3) of the Code of Criminal Procedure for enhancement of the sentence, the accused has a right not only to oppose the prayer for enhancement of sentence but is also entitled to plead for his acquittal or reduction of sentence.