JUDGMENT :

UMESH CHANDRA SHARMA, J.

1. Heard learned counsel for the revisionist, learned AGA and perused the records.

2. This criminal revision has been filed against the judgment and order dated 24.04.2009 passed by the ACM (Northern Railway), Gonda in Criminal Case No. 371 of 1997 (State Vs. Kapil Dev Pandey and another) as well as the judgment and order dated 07.08.2009 passed by the Additional Sessions Judge, Court No. 6, Gonda in Criminal Appeal No. 14 of 2009 (Kapil Dev Pandey vs. State of U.P.).

3. The brief facts of the case are that on 03.10.1996 the informant, Kailash Prasad, deployed as gangman gang no. 13 as gateman at gate no. 113-C, at about 19:30 hour saw two persons in suspicious condition bringing some heavy article towards the gate. Upon some doubt, when he asked them to stop, both of them tried to run away but were caught by him with the help of Harishchandra - gangman, gang no. 13 and Baijnath, gateman gate no. 113-C. Upon being inquired, they both told their names as Kapil Dev Pandey and Ramesh Kumar Shukla and from the possession of Kapil Dev Pandey IRS(T)5OR written one bearing plate and from the other accused one simple bearing plate was recovered. The accused persons informed that the recovered articles were stolen from railway line near the bridge which was confirmed by the informant. Thereafter FIR was lodged at Crime No. 05 of 1996, under Section 3 Railway Property (Unlawful Possession) Act, 1966 (for short ‘the Act, 1966’), Police Station Tulsipur, District Gonda (Balrampur). After investigation charge sheet was submitted, charge was framed under Section 3 of the Act, 1966 against the accused which was denied by them and they sought for trial.

4. During the trial prosecution adduced oral and documentary evidence and after closure of evidence their statement under Section 313 CrPC was recorded and after hearing the argument, the accuseds were convicted and sentenced on 24.04.2009 with simple imprisonment of one year each and fine of Rs.1,500/- each for committing an offence under Section 3 of the Act, 1966.

5. The order dated 24.04.2009 was challenged by the revisionist, Kapil Dev Pandey before Additional Sessions Judge, Court No. 6, Gonda (Balrampur) in Criminal Appeal No. 14 of 2009 which was dismissed and the judgment and order dated 24.04.2009 was confirmed. Hence, this criminal revision has been preferred.

6. Learned counsel for revisionist submitted that the impugned judgement and order dated 24.04.2009 passed by trial court and the order dated 07.08.2009 passed by the appellate court are illegal, perverse and against the facts and evidence on record. The courts below have failed to appreciate the defence evidence which was more probable than that of prosecution evidence. The appellate court has committed illegality in maintaining the order of conviction passed by the trial court. It is also submitted that the appellate court as well as the trial court both have committed manifest error of law in refusing the benefit of Probation of Offenders Act to the revisionist without recording any reason for the same. Learned counsel for the revisionist further submitted that the revisionist was on bail during trial and never misused the liberty of bail. However, after arguing at some length, learned counsel for the revisionist submits that the revisionist may be extended the benefit of UP Probation of Offenders Act. He has further submitted that during the pendency of revision, there is no criminal antecedents and the revisionist is living as a law abiding citizen.

7. Learned AGA opposed the revision and submitted that there is no material irregularity or illegality in the impugned judgments and orders of the courts below and keeping in view the evidence on record, the revisionist was rightly convicted.

8. Section 360 and 361 of the Code of Criminal Procedure are relevant for the purpose of probation to first offenders. Both these sections are reproduced as under:

“360. Order to release on probation of good cond