POORAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In this appeal against the judgment dated 15-11-1990 passed by Special Judge Dacoity Affected Area, Bharatpur in Sess. Cas No.3/89, whereby appellants, namely, Pooran, Munshi, Sopran, Ameer, Ranvcer, Roh ,& Ramveer, have been convicted under Sections 147, IPC,435/149, IPC,&323/149, IPC, & each of them sentenced to one year RI, 3 years, R.I. with a fine of Rs. 500/- (in default, further S.I. for six months), and 6 months R.I. U/s 147,435/ 149, & 323/149, IPC, respectively; at the very outset, learned counsel for the appellants submitted that he does not want to assail and conviction under appeal on merits and confined his submissions to the ,prayer of grant of probation to the appellants with the order that the conviction will not come/affect adverse to their service career. In this regard, learned counsel for the appellants contended that the Trial Court has not assigned any special reason as to why the appellants are not entitled to the benefit of the provisions of the probation of Offenders Act, and in view of the proposition of law laid down by the Apex Court in Bishandev v. State of W.B.1, the reasons assigned for non grant of the benefit of probation cannot be special reasons.

(2.) Having considered the points raised I may first reproduce the proposition of law laid down on the question involved here, in Bishandev v. State of W.B. (supra). if no previous offence is proved against the offender and if it appears to the Court having regard to the age, character or antecedents of the offender, and to the circumstances in which, the offence was committed that it is expedient that the offender should be released on probation of good conduct or after admonition. If the court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training, or rehabilitation of youthful offenders, where the Court could have done so, Section 361, which is a new provision in the 1973 Code, makes it mandatory for the Court to record in its judgment the special reasons for not doing so. In the context of 5. 360, the special reasons contemplated by 5. 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. Learned Public Prosecutor failed to point out after perusal of the record that the appellants are of shady past or are habitual offenders or are previous convicts disentitling them to the grant of probation. The appellants have been acquitted by the Trial Court giving benefit of doubt to them, of the offences charged under Sections 436, 323 & 302,149 & 302, IPC. The reasons assigned by the Trial Court for non-grant of benefit of probation are that they have been found guilt of the serious offence of damaging the shed & the goods lying thereunder by way of fire forming an unlawful assembly and further demolishing the constructed lengthy boundary wall in the night & then inflicting blows thereby caused injuries & death of the deceased. Taking the aid of the aforesaid proposition of law laid down by the Apex Court in the case cited/reproduced above, in my view the reasons assigned by the Trial Court cannot be held to be special reasons. There are no compelling circumstances on record to hold that it is impossible to reform and rehabilitate the appellants to while the Trial Court itself, has acquitted the appellants of the offences under Section 302, IPC, on the basis of the material on record, then it cannot be said that their actions betrayed a callaous indifference towards the welfare of society nor it shows that the appellants are so perpetually at war with society that there is no hope of ever reclaiming them from being a menace to society. In these circumstances, I feel it just and proper to grant the benefit of probation to the appellants.

(3.) This appeal is partly allowed only on the arguments confined to the point of grant of benefit of probation. It is hereby directed that the appellants, named above, are ordered to be released on probation of good conduct provided each of them furnishes a personal bond of Rs. 2,000/- (Rupees two thousand only) together with one surety in the like amount within three months from today, to the satisfaction of the Trial Court for one year to appear in the Trial Court when called upon during this period of probation and to keep peace and be of good behaviors. Upon failure to furnish the aforesaid bonds, the Trial Court would take necessary steps for arresting the appellants so as to serve the sentence passed by the Trial Court. The appellants are on bail. They need not surrender. Their bail bonds stand cancelled. Further, it is made clear that the impugned conviction passed against the appellants shall not affect adverse in service career and employment, if taken of the appellants. To the above extend, the impugned judgment is modified. The record be sent back forthwith. Appeal partly allowed.