IMPORTANT POINTS
(1) Benefit of probation cannot be denied to a similarly situated accused person.
(2) Power under Article 142 of Constitution of India can be exercised by Supreme Court to grant benefit of probation to accused.

JUDGMENT :

NONGMEIKAPAM KOTISWAR SINGH, J.

Leave granted.

2. The present appeal has been preferred against the impugned judgment and order dated 09.11.2023 passed by the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Criminal Appeal No.562/1995 which partly allowed the appeal preferred by the appellant and other accused against the order of conviction dated 31.10.1995 passed by the Additional District and Sessions Judge, Gangapur City, Rajasthan in Session Case No.31/93.

3. The Additional District and Sessions Judge, Gangapur City in the aforesaid Session Case No. 31/93 had convicted the appellant under Sections 148, 307/149, 326, 323/149, 452 IPC vide judgment dated 31.10.1995. Five other accused were also convicted under various sections of the Indian Penal Code, 1860 (for short “IPC”) viz, Sections 148, 452, 323, 307, 326 and 325 with which we are not presently concerned in this appeal as we are concerned with the conviction and punishment given to the appellant-Ramesh.

4. The present appellant Ramesh and other accused preferred a common appeal before the High Court of Judicature for Rajasthan at Jaipur Bench in S.B. Criminal Appeal No.562 of 1993 against the judgment and order dated 31.10.1995 of Additional District and Sessions Judge, Gangapur City in Session Case No.31/93.

The High Court in respect of four appellants namely, Smt. Rupi, Smt. Janaki, Shalla @ Suresh and Shambhu allowed the appeal and set aside the order of their conviction and sentence passed by the Additional District and Sessions Judge. As regards appeal preferred by another appellant-Khilari, the same was partially allowed by setting aside his conviction under Sections 148 and 149 IPC and acquitted him of those charges but dismissed the appeal against conviction under Sections 307, 326, 325 and 452 IPC.

As regards the present appellant-Ramesh, the appeal was partly allowed and his conviction and sentence under Sections 307, 148 and 149 IPC was set aside and he was acquitted of these charges. However, the High Court affirmed his conviction under Sections 326, 325, 452 and 323 IPC and sentences imposed by the Additional Sessions Court were modified. The relevant portion of the order of the High Court relating to the appeal preferred by the appellant Ramesh is produced hereinbelow:-

“3. Appeal preferred by Ramesh is partially allowed and his conviction and sentence under Sections 307, 148, 149 IPC is set aside and acquitted from these charges, but his conviction under sections 326, 325, 452 and 323 IPC is affirmed. Further, sentence is modified and appellant Ramesh is sentenced as under: -

(i) Section 326- Rigorous imprisonment of six months along with a fine of Rs.5000/-, in case of default of payment of fine will undergo further sentence of 1 month.

(ii) Section 325- Simple imprisonment of two months along with a fine of Rs.1000/-, in case of default of payment of fine will undergo further sentence of 7 days.

(iii) Section 452- Simple imprisonment of one month along with a fine of Rs.1000/-, in case of default of payment of fine will undergo further sentence of seven days.

(iv) Section 323- Simple imprisonment of seven days.

Appellants Ramesh and Khilari are also entitled for set off under Section 428 Cr.P.C. and substantive sentence shall run concurrently.”

5. According to the appellant there is a cross case, being Criminal Case No.584/1998 (33/1993) with similar charges which was decided by the Magistrate, District Karauli on 01.08.2019. In the said case, the Magistrate took into consideration a settlement arrived between the disputing parties and directed the release of the accused in the said criminal case on probation. The appellant has pleaded that the same benefit may be extended to the present appellant inasmuch as these two criminal proceedings i.e., Session Case No. 31/93 and Criminal Case No. 584/1998 arose out of two complaints relating to certain incident of clash between two groups of the same family occurring on the same day, and