IMPORTANT POINT: Section 360 is a piece of beneficient legislation. It enables the Court, under certain circumstances to release the accused, who has been convicted, on probation of good conduct. It applies only to first time offenders, who are entitled to the indulgence on the source of their age, character or antecedents and to the circumstances in which the offence is committed. The object of this section is to avoid sending the first time offender to prison for an offence, which is not of a serious character and thereby running the risk of turning him into a regular criminal.

B.N. KARIA, J.

1. The present appeal is preferred by the appellant-State of Gujarat under Section 377 of the Code of Criminal Procedure, 1973, against the order of granting the benefit to the accused under the Probation of Offenders Act and under Section 360 of the Cr.P.C, passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot dated 31.03.2005 in Sessions Case No. 21 of 2003.

2. The facts leading to filing of the present appeal are as under :-

2.1 On 02.10.1998 at about 21:00 hrs, when the complainant victim girl was present in her room No. 2/15 situated at New Thorala Street, the accused had entered into the room armed with knife and started abusing and beating up the victim. Thereafter, he tried to have sexual intercourse with the victim -complainant forcibly and thereby he committed offences alleged and charged against him.

2.2 Initially, on 02.10.1998, a complaint in respect of the aforesaid incident was lodged with ‘B’ Division Police Station, Rajkot, for the offences punishable under Section 452, 54, 509, 504, 323, and 511 of Indian Penal Code and also under Section 135 of the Bombay Police Act. The Investigating Officer on 03.10.1998, submitted his report to add section 376 and 511 of IPC in the FIR to the learned Judicial Magistrate First Class, Rajkot. Thereafter, on completion of an investigation, the ASI, ‘B’ Division Police Station, Rajkot, submitted charge sheet before the learned JMFC, Rajkot. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately trial was initiated.

2.3 The learned Sessions Judge, Rajkot as per Section 228(1)(b) of the Cr.P.C framed the charges against the accused-respondent and read over to the accused, to which the accused pleaded ‘not guilty’ and claimed to be tried.

3. To prove its case, the prosecution has examined 8 oral witnesses as well as produced 8 documentary evidences.

4. At the end of the trial, the Court below recorded further statement of the accused under Section 313 of the Cr.P.C, and thereafter, passed the impugned judgment and order, which has led to the filing of the present appeal.

5. Heard learned APP Ms. Moxa Thakker for the appellant and Mr. Pratik Barot, learned advocate for the respondent.

6. It was argued by Ms. Moxa Thakker, learned APP for the appellant that the judgment and order passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Rajkot, is completely contrary to law and evidence on record. That Section 4 of the Probation of Offenders Act as well as Section 360 of the Cr.P.C cannot be applied together. That, both the provision could not be applied at the same time in the same area. That, prosecution has clearly proved that the present accused, who was residing near the room of the prosecutrix was entered in the room of the prosecutrix on 02.11.1998 at about 09:00 p.m. and caught the hair of the prosecutrix and upper hand, and she was dragged from the room saying that he wants to take the prosecutrix with him. That, people were gathered and accused had left the place of offence. That, intention of the accused entering in the house of prosecutrix was clearly proved. Sister of the prosecutrix was present and she intervened while prosecutrix was dragged by the accused. That, kick blows were inflicted on the abdominal part of the sister, due to which premature delivery of seven months was done. That, the accused had committed the offence of outraging the modesty of the prosecutrix, however, without considering the facts and granting benefit under the Probation of Offenders Act, the learned trial judge has committed grave error. She has further argued that the crime was against the woman and child like sexual harassment, outraging modesty. Hence, the benefit under the Probation of Offenders Act for offence under Section 360 of the Cr.P.C can not be granted to the accused. That, learned trial judge has not called for the report of the Probation Officer, which is mandatory as per