CHAUHAN, J. - (1.) THE appellants have challenged the judgment/order dated 20. 03. 1986 passed by the learned Sessions Judge, Jaipur City, Jaipur, whereby the learned Judge has convicted the appellants for offences under Sections 147, 323 and 452 of Indian Penal Code (for short, "ipc" ). For offence under Section 147, they have been sentenced to six months of rigorous imprisonment. For offence under Section 323, they have been sentenced to six months of rigorous imprisonment. For offence under Section 452, they have been sentenced to two years of rigorous imprisonment. It has also been directed that all the sentences should run simultaneously.
(2.) IN brief, the facts of the case are that one Mr. Madhuraj Singh (P. W. 4) lodged a report (Ex. P/6) at the Police Station, Jhotwada, wherein he claimed that "smt. Rajkumari is the owner of two plots, namely Plot Nos. C-59 and C-60 situated at Amba Bari, Jaipur. While in Plot No. C-60, a complete house has been constructed, in Plot No. C- 59 only few rooms have been constructed. There is no wall to separate the two plots. ". The complainant further claimed that "he is the adopted son of Smt. Rajkumari and lives with her in Plot No. C-60. He further alleged that the appellant No. 1, Narendra Singh, is the nephew of Smt. Rajkumari. For the last four to five months, with the permission of Smt. Rajkumari, Narendra Singh has been residing in the rooms constructed on Plot No. C-59. Alongwith Narendra Singh his brother-inlaw (Sala), Bhanwar Singh is also residing. While Narendra Singh and his wife were away for few days, Bhanwar Singh vacated the rooms and took away the goods, belonging to Narendra Singh, to another place. When Narendra Singh and his wife came back, they discovered that their goods were missing. Thereupon, they threatened Smt. Rajkumari and Madhuraj Singh and told them that they will settle scores with them. On 08. 07. 1981, around 5 o'clock, in the evening, Narendra Singh came there along with fifteen to twenty persons, who were carrying sariyas (iron rods) and lathis (wooden sticks ). While the appellant No. 2, Bahadur Singh was armed with sariya, appellant No. 1, Narendra Singh was armed with lathi. INitially, the accused persons damaged the rooms. Later on, Narendra Singh hit Madhuraj Singh with lathi on his hips and ribs. Bahadur Singh struck Madhuraj Singh on his shoulder. At that time, someone fired a gun and the accused persons ran away. While, the accused persons were running, they threw stones at the house thereby breaking the window panes. On the basis of this report, the police registered a formal FIR (Ex. P/6) for offences under Sections 147, 148, 148, 452 and 323 of IPC. However, after a thorough investigation, the police filed a challan only against the present appellants. In order to prove its case, the prosecution examined thirteen witnesses and submitted eleven documents. Although, the defence did not examine any witness, it did submit one document. After going through the oral and documentary evidence, the learned trial Court convicted and sentenced the appellants as aforementioned. Hence, this appeal before this Court. Mr. Mahesh Gupta, the learned counsel for the appellants, has not challenged the conviction of the appellants for the aforementioned offences. However, he has questioned the non- granting of benefit of probation. According to the learned counsel for the appellants, since the appellants fulfilled the conditions enumerated under Section 360 of Criminal Procedure code (for short, "cr. P. C. ") as well as under Section 4 of Probation of Offenders Act, 1958 (for short, "the Act of 1958"), the learned trial Court should have extended the benefit of probation to the appellants. Moreover, according to Section 361 of Cr. P. C. , in case the benefit is not extended the learned trial Court is required to state "special reasons" for denying the said benefits. According to the learned Counsel, although the learned trial Court was requested to extend the benefit of probation, without discussing as well as without assigning any "special reasons" for denying the said benefit, the learned trial Court has rejected the plea of the appellants. In order to substantiate his case, the learned counsel has relied upon the cases of Bishnu Deo vs. State of West Bengal (AIR 1979 SC 964), Chhani vs. State of U. P. , [ (2006) 5 SCC 396] and Daljit Singh & Ors. vs. State of Punjab [ (2006) 6 SCC 159]. On the other hand, Mr. Arun Sharma, the learned Public Prosecutor, has contended that serious offences have been committed by the appellants. Therefore, the benefit of probation should not be extended. We have heard the learned counsel for the parties, have perused the impugned judgment and have examined the documents available on record.
(3.) THEORY of punishment has undergone a seachange in the last century. From revenge to deterrence, the theory of punishment has now come to the reformative stage. The discoveries in the field of psychology heralded in the 19th Century by Sigmund Freud and subsequently developed in the 20th Century by B. F. Skinner have influenced penology. A person is not born as a criminal, but is transformed as a criminal because of the environment around him. However, the experiment of B. F. Skinner, with piegions, have proved the fact that people can be conditioned and re-conditioned and can be taught new skills and behavioral patterns. The studies in psychology subsequently led to change in theory of punishment in penology. The purpose behind punishment is no longer punitive or deterrent, but the aim is to reform the offender to the extent that he becomes a law-abiding citizen. With the reformative theory of punishment in the forefront, Sections 360 and 361 of CR. P. C. were introduced in the Criminal Procedure Code. Likewise, in the year 1958, the Indian Parliament enacted the Probation of Offenders Act, 1958 (for short, 'the Act of 1958' ). The purpose of probation is to ensure that the offender observes good behaviour and continues to be a law-abiding and law fearing citizen. In the case of Bishnu Deo (supra), the Hon'ble Supreme Court had an occasion to deal with Sections 360 and 361 of Cr. P. C. in great detail. The Apex Court not only dealt with the requirement of Section 360 Cr. P. C. , but also dealt with the factors which the Court should keep in mind while dealing with the grant of probation under Section 360 Cr. P. C. The Hon'ble Supreme Court held as under: If the Court refrains from dealing with an offender under Section 360 or under the provisions of the Probation of Offenders Act, or any other law for the treatment, training or rehabilitation of youthful offenders, where the Court could have done so, Sec. 361, which is a new provision in the 1973 Code makes it mandatory for the Court to record in its judgment the 'special reasons' for not doing so. Section 361 thus casts a duty upon the Court to apply the provisions of S. 360 wherever it is possible to do so and, to state "special reasons" contemplated by S. 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders, and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. . . . We will not, therefore, be wrong in assuming that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. " In the case of Chhanni (supra), the Hon'ble Supreme Court dealt with the differences between Sections 360 and 361 of Cr. P. C. , on the one hand, and Section 4 of 1958 Act on the other hand. The Apex Court observed thus:      " Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, that gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for probation officers in assisting the Courts in relation to supervision and other matters while the Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to coexist at the same time in the same area. Such coexistence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8 (1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable. Enforcement of the Probation Act in some particular area excludes the applicability of the provisions of Sections 360 and 361 of the Code in that area. " ;