HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 707 of 2002 Reserved On: 11.3.2010 Decided on: 12.3.2010 Narender Kumar ……… Appellant. Versus State of H.P. ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the Appellant: Mr.Dinesh Kumar, Advocate. For the respondent: Mr.Vikas Rathour, Deputy Advocate General, and Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This is an appeal filed by the appellant under Section 374 of the Cr.P.C. against the judgment of the court of learned Additional Sessions Judge, Shimla, dated 1.11.2002, vide which he tried the appellant for offences punishable under Sections 376, 325 and 323 of the IPC, but vide the impugned judgment, he acquitted the appellant of the charge under Section 376 of the IPC and convicted the appellant under Section 325 of the IPC as under: Rigorous imprisonment for a period of two years and a fine of Rs.2,000/-. In default of payment of fine, the convict was to further undergo simple imprisonment for three months. However, there is no mention if the charge was also proved under Section 323 of the IPC or not and neither there is any finding that the appellant has been convicted under Section 323 of the IPC and no separate sentence was also passed. - 2 - Briefly stated the facts of the case are that on 9.11.1998, at about 6.00 p.m., statement of the complainant Uma Devi was recorded under Section 154 of the Cr.P.C. in which she alleged that when she was coming back to her house from her cow shed, she met a person named Narender/appellant, who lives near their house. It was further alleged that the said Narender gave a push with a danda which he was having in his hand. When she got up, he gave a blow with the danda on her head and she fell down and again a blow was given with the danda near her ear and he also grappled with her. She also alleged that he forcibly committed rape upon her and she became unconscious. She further alleged that she was also given beatings on her legs with danda. On this report, a case was registered and after investigation, the challan was filed before the learned Judicial Magistrate, who committed the case to the learned Sessions Judge, who assigned the case to the learned trial Court. The learned trial Court tried the appellant, as detailed above, leading to his conviction under Section 325 of the IPC only. I have heard the learned counsel for the appellant and the learned Deputy Advocate General for the respondent and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the guilt of the appellant had not been proved beyond any reasonable doubt and, therefore, the findings of the learned trial Court convicting and sentencing the appellant after holding him guilty under Section 325 of the IPC are not sustainable in the eye of law. - 3 - On appraisal of the judgment passed by the learned trial Court, it is clear that the learned trial Court held the appellant guilty under Section 325 of the IPC, but did not pass any order acquitting the appellant or holding him guilty of the charge under Section 323 of the IPC and sentencing him separately for the offence under Section 323 of the IPC. This clearly shows that the judgment of the learned trial Court suffers from an illegality. Apart from the above, while going through the judgment passed by the learned trial Court, it is clear that after the appellant was held guilty, his counsel was heard, who submitted that the convict was a first offender, was a married man having three children and keeping in view the facts of the case, he passed the sentence of rigorous imprisonment for two years with fine under Section 325 of the IPC, as detailed above. It is also clear from a perusal of the judgment of the learned trial Court that before passing the sentence upon the appellant, the learned trial Court did not consider the question as to whether the appellant deserves to be given the benefit of Section 4 of the Probation of Offenders Act or not, for which a report was must to be called from the Probation Officer. It is not necessary for the Court to have granted the benefit of the Probation of Offenders Act, but it is the requirement of law that this plea has to be considered by the learned trial Court after considering the report of the Probation Officer, if the benefit of Probation of Offenders Act should be declined to the appellant or should be granted to him. - 4 - It is also clear that according to the law, it is not mandatory to give that benefit under the Probation of Offenders Act but the court has to mention the reasons for declining this benefit of the said Act. In case the court decides to grant the benefit and releases the appellant under Section 4 of the Probation of Offenders Act, it has to consider the report of Probation Officer, if any, which must be called as per decision of this Court in State of Himachal Pradesh vs. Shakti Prashad, 1984 ILR (Himachal) 168. Coming to the non-recording of reasons, I may make a reference to a decision of the Apex Court in Chandershwar Sharma vs. State of Bihar, 2001(3) Crimes 45 (Supreme Court), wherein it was held by their Lordships that a mandatory duty is cast upon a Magistrate to consider the question or applicability of Section 360 of the Code of Criminal Procedure. It was held that recording of reasons is mandatory in nature. In view of the law laid down by the Apex Court, it is necessary for a Magistrate to record the reasons as to why the benefit of Probation of Offenders Act is not being accorded in favour of the appellant and since that has not been done, the findings of the learned trial Court sentencing the appellant to undergo rigorous imprisonment for two years is liable to be set aside. The learned trial Court shall consider this question of granting the benefit of Probation of Offenders Act and it is not mandatory to grant the benefit under these provisions, but the court has to give the reasons for not according the benefit in view of the above decision. I may mention herewith that no findings are - 5 - being given in regard to the findings of the learned trial Court holding the appellant guilty and that question is kept open which shall be considered subsequently in case an appeal is preferred by the appellant or State. The appeal is accepted to this extent. This point is decided in favour of the appellant and as against the respondent. The learned trial Court shall hear the parties on the point of sentence and then pass appropriate order as mentioned above. The fine paid by the appellant shall remain in deposit and shall be subject to the final order that may be passed by the learned trial Court. The learned trial Court shall also pass appropriate orders for the offence under Section 323 of the IPC in accordance with law. The parties are directed to appear before the learned trial Court on 29.3.2010. The Registry is directed to send the records of the case alongwith a copy of this judgment so as to reach the trial Court well before 29.3.2010. The appeal stands disposed of accordingly. March 12, 2010. (V.K. Ahuja), (TILAK) Judge