JUDGMENT

Hon'ble R.C. Khulbe, J.

This appeal, preferred by the appellants u/s 374 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 08.10.2009 passed by learned Sessions Judge, Uttarkashi, in Session Trial No.18 of 2007, State vs. Ramesh Mishra, whereby the Court below convicted the appellant/accused Ramesh Mishra under Section 374 of IPC, and sentenced to undergo six months' R.I. under Section 374 IPC along with fine of Rs. 50,000/-.

2. Facts, in nutshell, are that informant Bharat Bahadur, lodged a report at Police Station Chilyanisaur (Thana-Dharashu), on 16.08.2007 at about 7:30 PM with the averments that on the same day at about 8:00 AM, the accused-Ramesh had came in Chilyanisaur market. At that time he along with Bam Bahadur, Raj Bahadur were drinking tea then contractor-Ramesh Mishra came there and told that his house work is going on and some material were required. When they have denied the demand of contractor, the contractor threatened them. On the pressure of contractor they have gone to do the work of contractor-accused. At the time of doing work at about 3:30 on falling the sand dune Bam Bahadur was died and other persons were escaped at the spot. On the basis of that report was lodged by the informant.

3. The I.O. during the course of investigation, inspected the place of occurrence and prepared the site plan; obtained the permission for prosecuting the appellant; and after completion of investigation, submitted the charge-sheet against the appellant u/s 304 & 374 of IPC.

4. The case was, accordingly, committed to the court of Sessions after complying with the provisions of Section 207 Cr.P.C.

5. Learned Sessions Court, accordingly, framed the Charge against the appellant. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried.

6. To prove its case, the prosecution has examined PW1 Balam Singh, PW2 Dr. B.S. Bisht, PW3 Bharat Bahadur, PW4 Raj Bahadur, PW5 Constable Kundan Singh, PW6 S.I. Daya Nand Pokhariya and PW7 Pradeep Bisht.

7. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. who denied the allegations made against him. However, he did not produce any documentary evidence in defence.

8. After appreciating the evidence on record and hearing learned counsel for the parties, the Trial Court, vide the judgment, under challenge, has convicted and sentenced the appellant, as afore-stated. Feeling aggrieved, the present appeal has been filed.

9. Heard learned Counsel for the parties and perused the entire evidence available on the record.

10. Mr. Lokendra Dobhal, learned counsel, appearing for the appellant fairly submits that the conviction of the appellant, as recorded by the Court below under Section 374 of IPC is perfectly justified as per the evidence recorded before the trial court and he also does not want to lay any challenge on the same; he only confined his prayer to the extent that the appellant may be extended the benefit of being the first-offender, the appellant is only the bread earner of the family and he may be released on probation by giving him the benefit of the Probation of Offenders Act, 1958. It is also argued by learned counsel for the appellant that the appellant is not able to pay the amount of Rs. 50,000/- as a fine may be reduced and the appellant will deposit Rs. 25,000/- within a period of two months.

11. Mr. A.K. Sah, learned A.G.A appearing for the State, admits that he has not received any report about the criminal antecedents of the appellant, and admitted that the appellant is the first-time offender.

12. In this regard, the Hon'ble Apex Court in the case of “Commandant, 20th Battalion, ITB Police Vs. Sanjay Binjola" reported in 2001 SCC (Cri.) 2, 897, in paragraph no.7, has held as under:

“7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a use