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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Reserved on: 05.05.2017

Delivered on: 17.05.2017

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CRL.A.539/2016

STATE

..... Appellant

versus

LUCKY

..... Respondent

Advocates who appeared in this case:

For the Appellant

: Mr.Arun Kr.Sharma, APP

For the Respondent

: Mr.Neeraj Bhardwaj.

CORAM:-

HON’BLE MR JUSTICE ASHUTOSH KUMAR

JUDGMENT

ASHUTOSH KUMAR, J

1.

The State has called in question the correctness of the order of

sentence passed by the Additional Sessions Judge-04 (Central), Tis

Hazari Courts, Delhi in Sessions Case No.7/2014 whereby the accused

person/respondent, though has been convicted under Section 394/411

read with section 34 of the IPC, but has been let off on probation of good

conduct, subject to his furnishing bond in the sum of Rs.25,000/- with

one surety of like amount before the Probation Officer to appear and

receive sentence when called upon during the period of probation and in

the meantime to keep peace and good behavior for a period of one year

from the date of furnishing of the bond. The respondent has also been

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directed to pay compensation of Rs.3000/- each to both the victims of the

case.

2.

The factual aspects of the case need not be gone into in detail as

conviction has not been challenged but only the order on sentence, which

has to be tested on the principles of law.

3.

On 04.04.2012 Diksha, who was accompanying Vikram, both

being students of St.Stephens College, was made to deliver her mobile

telephone on point of a sharp object by the respondent and one Raju

Tiwari @ Raju. In the process, Vikram was hurt. This led to registration

of a case under Sections 392/394/411 and 34 of the IPC. Since co-

accused Raju Tiwari @ Raju was a juvenile, his case was sent to the

Juvenile Justice Board for appropriate orders. Only the respondent was

tried and convicted.

4.

The mobile phone was recovered from the possession of the

respondent.

5.

The Trial Court on examining 18 witnesses on behalf of the

prosecution, gave benefit of doubt to the respondent with respect to the

offence under Section 397 IPC but convicted him under Section 394/411

read with Section 34 of the IPC vide judgment dated 05.11.2015. On

19.11.2015, taking into account the fact that the respondent was a young

person aged about 22 years, had two brothers, one being handicapped and

one sister along with parents, the mother being paralyzed and also taking

into account the financial stringency, granted the benefit of probation to

the respondent. While doing so, the Court below has taken into account

the report of the Probation Officer and the fact that the respondent did not

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have any previous involvement and had shown good and disciplined

behavior.

6.

Learned counsel appearing for the appellant/State has challenged

the aforesaid grant of the benefit of probation to the respondent on the

ground that Sections 4 & 6 of the Probation of Offenders Act, 1958

specifically provide that the beneficent provisions could be invoked only

under the conditions enumerated in Section 4, viz. that the conviction is

for such offence which is not punishable with death or imprisonment for

life. It is submitted that Section 394 of the IPC entails punishment of

imprisonment for life or with rigorous imprisonment for a term which

may extend to 10 years and the accused shall also be liable to fine.

7.

Section 394 of the IPC reads as hereunder:-

“394.

Voluntarily

causing

hurt

in

committing

robbery.—If any person, in committing or in attempting

and shall also be liable to fine.”

8.

Section 4 and Section 6 of the Probation of Offenders Act, 1958

read as follows:-

4. Power of court to release certain offenders on

probation of good conduct.—

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6. Restrictions on imprisonment of offenders under

twenty-one years of age.—

condition of the offender.”

9.

In Arvi