The court upheld the conviction under Section 307 IPC but granted probation, emphasizing rehabilitation over punishment for offenders above 21 years.

JUDGMENT :

Ganesh Ram Meena, J.

The present criminal appeal has been preferred by the accused-appellant against the judgment of conviction and sentence dated 10.06.1994 passed by the Court of learned Additional District & Sessions Judge, Chhabra (Rajasthan) [for short 'the learned trial Court'] in Sessions Case No.197/1992, whereby, the accused appellant has been convicted and sentenced as under:-

2. On filing of appeal, the sentence awarded to the accused-appellant was suspended vide order dated 24.06.1994 and he was released on bail.

3. Mr. Santosh Kumar Jain, 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 four years and against the impugned judgment, he preferred the appeal in the year, 1994. Thus, from the more than 33 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 307 of IPC is 07 years but in the present case, the accused appellant has been convicted for offence under Section 307 of IPC and sentenced to undergo three years Rigorous Imprisonment. Counsel further submits that the accused appellant is around 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. On the other hand, learned Public Prosecutor appearing for the State has 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.

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

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

8. 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 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 r