The court emphasized the rehabilitative purpose of the Probation of Offenders Act, allowing probation for an offender with no prior convictions and considering age and societal behavior.

JUDGMENT :

Ganesh Ram Meena, J.

The present criminal appeal has been preferred by the accused-appellant against the judgment of conviction and sentence dated 23.12.1993 passed by the Court of learned Addl. District & Sessions Judge, Kotputli [for short 'the trial Court'] in Sessions Case No.39/1992 (Old No.36/1988), whereby, he has been convicted and sentenced as under:-

Both the sentences were ordered to run concurrently.

2. On filing of appeal, the sentence awarded to the accused-appellant was suspended vide order dated 04.01.1994 and he was released on bail.

3. Mr. R.B. Mathur Senior Counsel assisted by Mr. Satyam Khandelwal learned counsel appearing for the accused appellant instead of arguing the appeal on its merits with regard to challenge to the conviction and sentence, confines his arguments for grant of benefit of probation to the appellant under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as 'the Act of 1958'). Counsel further submits that except the present case, no case has been registered against the accused-appellant. Counsel further submits that the accused-appellant is living peacefully in the society without there being any criminal antecedents to his discredit.

4. Counsel further submits that the accused-appellant has faced trial for about six years and against the impugned judgment, he preferred the appeal in the year, 1994. Thus, from the more than 36 years, the accused-appellant is facing mental agony and harassment because of pendency of criminal case registered against him. Counsel further submits that the maximum sentence under Section 306 of IPC is ten years but in the present case, the accused appellant has been convicted for offence under Section 306 of IPC and sentenced to undergo five years Rigorous Imprisonment and for the offence under section 348 IPC one year simple imprisonment. Senior Counsel further submits that the accused appellant is 62 years of age. Thus, taking into consideration the aforesaid facts, the accused-appellant may be given the benefit of probation under the provisions of the Act of 1958.

5. Counsel for the appellant has also relied upon the judgment of this Court passed at Principal Seat, Jodhpur in case of Smt. Sumati v. State of Rajasthan, S.B. Criminal Appeal No.533/2003 decided on 23.11.2022 and also the judgment of High Court of Judicature at Allahabad, Lucknow Bench in case of Smt. Budana And Anr. v. State of U.P., Criminal Appeal No.108/2005 decided on 29.08.2023.

6. On the other hand, learned Public Prosecutor appearing for the State opposed the prayer made by the counsel appearing for the appellant and submits that looking to the allegations and the manner in which the incident took place, the appellant is not entitled for any kind of leniency in awarding sentence as well as the benefit of probation under Section 4 of the Act of 1958.

7. Considered the submissions made by the Counsel appearing for the appellant as well as the learned Public Prosecutor.

8. Learned trial Court while considering the issue of granting leniency to the accused appellant, has rejected his prayer in regard to the leniency.

9. Section 4 of the Act of 1958 nowhere says that the benefit of probation cannot be allowed to an accused who is above 21 years of age. The Act of 1958 deals with the powers of the Court to release certain offenders for good conduct. Section 4 of the Act of 1958 reads as under:

"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