JUDGMENT :

1. In the wake of instant surge in COVID – 19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in the Court, for the safety of all concerned.

2. This Criminal Appeal has been preferred under Section 374 Cr.P.C. praying for the following reliefs:-

“It is therefore, humbly prayed that the appeal of the appellant may kindly be allowed and the impugned judgment under appeal may kindly be set aside and the appellant may kindly be acquitted of the charges levelled against them.”

3. Learned Public Prosecutor has furnished a report, which shows that the appellant no.1 has already expired.

4. Thus, the present appeal to the extent of appellant no.1 stands abated.

5. So far as the appellants No.2 & 3 are concerned, the matter pertains to an incident that occurred in the year 1998 and the present appeal has been pending since 1999.

6. Vide impugned judgment dated 08.10.1999 the learned District and Sessions Judge, Jaisalmer in Sessions Case No.27/98 acquitted the accused-appellants for the offence under Section 304-B IPC but convicted them for the offence under Section 498-A IPC and sentenced them to undergo 03 years R.I., along with a fine of Rs.2000/-to each, default in payment of which they were to further undergo one month additional imprisonment.

7. Learned counsel for the accused-appellants submits that the offence under Section 498-A IPC, as per the Indian Penal Code, are punishable with a maximum imprisonment up to 07 years and, therefore, the petitioner may be granted benefit of Section 4 of the Probation of Offenders Act, 1958.

8. Learned counsel for the accused-appellants submits that the accused-appellants do not have any criminal antecedents to their discredit.

9. Learned counsel for the accused-appellants further submits that the sentence awarded to the accused-appellants was suspended by this Hon’ble Court vide the order dated 11.11.1999 and thus, they are on bail.

10. Learned counsel for the accused-appellants however, makes a limited prayer that the accused-appellants may be granted benefit under Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’).

“4. Power of court to release certain offenders on probation of good conduct.—

(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.

(3)…

(4)…

(5)... ”

11. On the other hand, learned Public Prosecutor opposes the appeal and submits that looking to the overall facts and circumstances of the case and the well reasoned speaking order passed by the learned court below, the accused-appellants are not entitled for any indulgence by this Court.

12. Heard learned counsel for the parties as well as perused the record of the case.

13. In Arvind Mohan Sinha Vs. Amulya Ku