The main legal point established in the judgment is the entitlement of the accused-appellants to the benefit under Section 4 of the Probation of Offenders Act, 1958, despite being convicted under Section 395 IPC.

JUDGMENT

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

"Hence, it is prayed that the appeal may kindly be allowed, conviction passed against the appellants be set-aside and the appellants be ordered to be acquitted of the charge"

2. Although there are conflicting reports about death, but counsel for the appellant Mr. BS Rathore makes a statement at Bar that he has instructions from appellants No.1 & 4 as they are alive. The death of respondents No.2 & 3 is already recorded.

3. Counsel for the appellant submits that the incident is of year 1982 and is about 30 years old. The maximum sentence awarded is of three years’ RI and thus, the appellants be given benefit under Section 4 of the Probation of Offenders Act.

4. The matter pertains to an incident that occurred in the year 1982 and the present appeal has been pending since 1991.

5. Vide impugned judgment dated 30.10.1991 the learned Additional Sessions Judge, No.1, Jodhpur in Sessions Case No.32/85 convicted accused-appellants for the offence under Section 395 IPC and were sentenced to undergo three years’ R.I. and a fine of Rs. 100/- in default of payment of which they further ordered to undergo seven days’ S.I.

6. Learned counsel for the accused-appellants submits that the offence under Section 395 IPC is punishable with a maximum imprisonment up to ten years, therefore, the appellant may be granted benefit of Section 4 of the Probation of Offenders Act, 1958.

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

8. 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 19.12.2000, and thus, they are on bail.

9. 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) ... "

10. On the other hand, learned Public Prosecutor opposes the present 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.

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

12. In Arvind Mohan Sinha Vs. Amulya Kumar Biswas (1974) 4 SCC, the Hon’ble Apex Court observed as under:-

"The Probation of Offenders Act is a reformative measure and its object is