1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CRIMINAL APPEAL No.423/1986. : : Satya Narain Vs. State of Rajasthan. : : Date of Order 1.8.2008 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr.Harsh Kulshestra for Mr.K.K.Mehrish for the appellants. Mr.Shyam Arya, P.P., for the State. Heard learned counsel for the parties. This appeal has been preferred by the accused- appellant against the judgment dated 30.8.1986 passed by the learned District & Sessions Judge, Bundi whereby the appellant was convicted for the offence under Section 436 IPC for a period of three years rigorous imprisonment and a fine of Rs.2000/- and further it was directed that in the event of failure of appellant to pay the fine shall be required to further undergo six months rigorous imprisonment. The learned trial Court directed that out of amount of the fine, sum of Rs.1000/- shall be paid to the complainant Ramdayal and his father Inderjeet. 2 Learned counsel for the appellants has at the outset submitted that he does not want to press the appeal so far as the conviction part is concerned, he challenges the sentence part and submits that the appellants may be extended benefit of probation. It was submitted that the trial Court in view of provision of Section 4 of Probation of Offender Act was required to give reasons as to why benefit of probation was not extended to the accused-appellants. The appellant was young person of 33 years when the incident took place on 5.4.1985 he has now 53 years old. Learned counsel argued that dispute was with regard to a wooden cabin which the complainant fixed in front of the appellant's house, which was objected by the appellant but it is alleged that appellant burnt that wooden cabin. It was argued that the the appellant was granted indulgence by this Court vide order dated 25.9.1986 whereby his sentence was suspended and he has not misused the liberty granted to him. The appellant is now well settled in the family with grown up children and now at this lapse of time it would be too harsh if he will be sent back to undergo sentence. It was further argued that Section 436 is an offence with regard to mischief by fire with intention to destroy house. In the present case, it was not the house but was only a wooden 3 cabin where the complainant used to sell tea and eatables etc. It is, therefore, prayed that the Court may take lenient view and extend benefit of probation to the accused- appellants. Learned Public Prosecutor opposed the appeal and submitted that in view of the nature of offence the accused-appellant is not entitled to grant of benefit of probation. In the alternative, he submitted that if this Court considers to grant benefit of probation to the appellant, the amount of fine of Rs.2000/- as imposed by the trial Court may be suitably enhanced. Taking into consideration the arguments aforesaid and the fact that the accused-appellant was convicted under Section 436 IPC and also taking into consideration the fact that the incident had taken place at a sudden flare up, it is considered appropriate that the benefit of probation is extended to the appellants more particularly when there is no report about their misusing the liberty granted to him by this Court while suspending the sentence. 4 The appeal is, therefore, allowed in part and it is denoted that the appellant Satya Narain S/o Ram Ratan shall be released on probation under Section 4 of the Probation of Offenders Act, 1958 on his furnishing a personal bond in the sum of Rs.10,000/- on the condition of maintaining good conduct with the surety in the like amount to the satisfaction of the trial court with the stipulation that he shall maintain peace and be of good behavior for a period of two years and shall appear before the court during the aforesaid period to receive and undergo sentence as and when called and shall not indulge again in any such offence in future. The amount of fine is to Rs.6000/-. In addition to Rs.1000/- already paid to the complainant, the increased amount of Rs.4000/- shall be further paid to the complainant Ramdayal and his father Inderjeet Singh by the learned trial Court. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.10.