MANOJ KUMAR OHRI, J.
1. The present appeal has been instituted under Section 374 Cr.P.C. seeking setting aside of judgement of conviction and order on sentence both dated 26.02.2002 passed by the learned ASJ in Sessions Case No. 83/2000 arising out of FIR No. 162/2002 registered under Section 393 IPC read with Sections 27/54/59 Arms Act at P.S. Dwarka.
Vide the impugned judgement of conviction, the appellant was convicted for the offence under Section 451 IPC as well as for the offence under Section 393 read with Section 398 IPC. Vide the order on sentence, he was directed to undergo rigorous imprisonment for two years and payment of fine of Rs.200/- in default whereof, he was directed to further undergo rigorous imprisonment for 15 days for the offence under Section 451 IPC. For the offence under Section 393 IPC, he was directed to undergo rigorous imprisonment for three years and payment of fine of Rs.200/- in default whereof, he was directed to further undergo rigorous imprisonment for 15 days. For the offence under Section 398 IPC, he was directed to undergo rigorous imprisonment for seven years. All the sentences were directed to run concurrently. Benefit of Section 428 Cr.P.C. was also granted to the appellant.
2. The factual matrix of the prosecution case, as noted by the learned Trial Court is extracted hereunder:-
"A complaint has been filed by Tika Singh resident of Raj Nagar Palam Colony that on 29.06.2000 at about 1 p.m. while he was sitting in the inner room of his house and his three children Sonu, Geeta and Deepa were watching TV in the front room which was also his shop, he suddenly heard the shrieks of his children. A man with his face muffled entered into the room holding his two children as hostages with a knife at the neck of his one child and a pistol against the other. This person threatened to kill and asked them to hand over the cash and jewellery. The assailant was however, over-powered. The weapons fell down and as the assailant tried to escape, he tripped over a step and was apprehended. People gathered outside the house hearing the cries for help. The accused was beaten by the crowd. His weapons were taken to be a toy gun. The intentions of the assailant, the accused herein, was to rob the complainant.
2. The accused was accordingly charged with the offence punishable under Section 451 IPC having committed house trespass by entering the house of the complainant on 29.06.2000 at about 1 p.m. He was also charged for the offence punishable under Section 393/398 IPC for attempting to commit robbery.”
3. In trial, the prosecution examined a total of 6 witnesses. The complainant of the case Tika Singh was examined as PW-2. He deposed that at the time of the incident, he was in one of the inner rooms of his house, while his daughters Geeta & Deepa and son Sonu were sitting in the shop watching TV. Suddenly, he heard the shrieks of his children and saw the appellant with a knife in one hand and pistol in the other, placed at the neck of his two children leading them inside the house, who asked for the cash & jewellery. The appellant was in muffled face and wearing a cap on his head, however, the complainant hold of the hands of the appellant and a scuffle broke out. The appellant freed himself and started running away when he hurled a nearby stool at him, resulting in the pistol and knife falling down. The appellant subsequently tripped over a step and hurt himself. The son of the complainant Sonu was examined as PW-3, who reiterated the facts as deposed by his father. He further stated that when the weapons of the incident fell down, he quickly retrieved them before the appellant could take them back. Daughter of the complainant Geeta was also examined as PW-4, whose testimony was along the same lines as PW-3. The rest of the witnesses were formal in nature.
4. The appellant refuted the case put forth against him and examined a witness in support of his contention. In his statement under Section 313 Cr.P.C., the appellant, apart from denying the evidence appearing against him in trial, stated that he was a customer at complainant’s shop and had bought a packet of biscuits from him. Since the same was found to be broken, he sought to return it but the complainant refused to entertain the complaint. He thereafter threatened to make a complaint to the Food Inspector. It was further stated that 2/3 days after the said incident, he had received a call from the complainant’s son, asking him to come and talk to the complainant about the said incident. When the appellant went to talk with the complainant, he was beaten and assaulted. The witness appearing on behalf of the appellant was his erstwhile landlord, who stated that while he was not a witness to the alleged incident which took place on 29.06.2000, he had only heard about the appellant having gotten embroiled in a quarrel at a shop where he had gone to seek a refund.
5. After perusing the testimonies of the witnesses as well as the evidence placed on record, the trial court came to the conclusion that the prosecution had been able to lead sufficient evidence to establish its case. It was further observed that the testimony of the defence witness was hearsay in nature and thus, the same could not demolish the testimonies of PWs 2 to 4. It was observed that the appellant, in a daring act, had entered into the house of the complainant well prepared but was ultimately unsuccessful in his endeavour due to the courage of the complainant and his family members. It was further observed that the robbery was attempted while the appellant was armed with a deadly weapon.
6. In the present proceedings, the appellant has challenged his conviction by contending that there are material discrepancies in the statements of the prosecution witnesses. It was stated that the alleged knife/dagger used in the commission of the offence was covered and that the revolver/pistol was a toy revolver, and the same could not be considered as deadly weapons. It was further argued that even though in the complaint, it has been stated that several people gathered outside the house of the complainant and beat and apprehended the appellant, however, none of them have been cited as a witness.
7. The appellant has been convicted under Section 451 IPC as well as Section 393/398 IPC. While Section 451 deals with the offence of house trespass in order to commit an offence punishable with imprisonment, Section 393/398 deals with the offence of attempt to commit robbery armed with a deadly weapon.
Admittedly, the appellant was apprehended and handed over to the police from the spot of the offence. The weapons of the offence i.e. the knife/dagger and the gun/revolver were also handed over to the police and the sketches of the same were duly made and signed by the complainant. The appellant as well as the weapons used in the commission of the offence were identified by the complainant at the time of his testimony before the Court. The said fact coupled with the testimonies of the other prosecution witness establish the case of prosecution. The alleged inconsistencies in the statements of the prosecution witness as well as the non-inclusion of people of the neighbourhood, who allegedly were involved in the apprehension of the appellant, in and of itself is not fatal to the prosecution witness. Minor discrepancies in statements or mere non-inclusion of people from the neighbourhood cannot be the cause for disregard of testimonies, which otherwise inspire confidence.
8. During the course of submissions, learned counsel for the appellant has prayed that the appellant be released on probation, considering that he was around 24 years at the time of the alleged offence. To the said request, learned APP for the State has drawn attention of the Court to Section 398 IPC, to state the same provides for a minimum sentence of 7 years and thus, the release of the appellant on probation would not be proper.
9. Since the release of appellant on probation is sought to be counteracted on the basis of the words of Section 398, it is apposite if the same is reproduced below for easy reference. The said section reads as under:-
“398. Attempt to commit robbery or dacoity when armed with deadly weapon- If at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.”
10. Section 4 of the Probation of Offenders Act, 1958 provides court with the power to release certain offenders on probation of good conduct. The said section 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 release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case….”
11. The issue whether provisions of Probation of Offenders Act would apply in situations wherein a minimum punishment/period of imprisonment has been provided by a statute enacted prior to the enactment of the said Act is no longer res integra. The Supreme Court in Lakhvir Singh & Ors. v. State of Punjab & Anr. (2021) 2 SCC 763, while dealing with Section 397 IPC providing for a minimum sentence of 7 year, observed as under:-
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14. The legal position insofar as invocation of Section 4 is concerned has been analysed in Ishar Das v. State of Punjab elucidating that non obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. The observation in Ramji Missar was cited with approval to the effect that in case of any ambiguity, the beneficial provisions of the Act should receive wide interpretation and should not be read in a restricted sense.
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16. Even though, Section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as “the PC Act”) prescribes a minimum sentence of imprisonment for not less than 1 year, an exception was carved out keeping in mind the application of the Act. In Ishar Das, this Court noted that if the object of the legislature was that the Act does not apply to all cases where a minimum sentence of imprisonment is prescribed, there was no reason to specifically provide an exception for Section 5(2) of the PC Act. The fact that Section 18 of the Act does not include any other such offences where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offences. A more nuanced interpretation on this aspect was given in CCE v. Bahubali. It was opined that the Act may not apply in cases where a specific law enacted after 1958 prescribes a mandatory minimum sentence, and the law contains a non obstante clause. Thus, the benefits of the Act did not apply in case of mandatory minimum sentences prescribed by special legislation enacted after the Act. It is in this context, it was observed in State of M.P. v. Vikram Das that the court cannot award a sentence less than the mandatory sentence prescribed by the statute. We are of the view that the corollary to the aforesaid legal decisions ends with a conclusion that the benefit of probation under the said Act is not excluded by the provisions of the mandatory minimum sentence under Section 397 IPC, the offence in the present case. In fact, the observation made in Joginder Singh v. State of Punjab are in the same context.
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18. We, thus, release the appellants on probation of good conduct under Section 4 of the said Act on their completion of half the sentence and on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence.
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12. The said dicta of the Supreme Court has been recently followed in the decision in Tarak Nath Keshari v. State of West Bengal 2023 SCC OnLine SC 605, wherein while dealing with a provision under the Essential Commodities Act, 1955 which provided for a minimum sentence, it was observed that:-
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11. Even if there is minimum sentence provided in Section 7 of the EC Act, in our opinion, the appellant is entitled to the benefit of probation, the EC Act, being of the year 1955 and the Probation of Offenders Act, 1958 being later. Even if minimum sentence is provided in the EC Act, 1955 the same will not be a hurdle for invoking the applicability of provisions of the Probation of Offenders Act, 1958. Reference can be made to a judgment of this Court in Lakhvir Singh v. The State of Punjab.
12. The appeal is accordingly disposed of. The appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties each to ensure that he will maintain peace and good behaviour for the remaining part of his sentence, failing which he can be called upon to serve the sentence.”
13. From the abovementioned discussion, it is clear that benefit of Section 4 of the Probation of Offenders Act can be provided to an individual even if the statute/provision provides for a minimum sentence to be imposed. It is further clear that the said position exists qua statute which were enacted/enforced prior to the enactment of the said Act. In the present case, the offences are covered by provisions of the Indian Penal Code, 1860, which was enacted and enforced prior to the enactment of the Probation of Offenders Act and thus, taking cue from the decisions mentioned above, especially Lakhvir Singh (Supra), benefit of Section 4 of the Probation of Offenders Act can be granted.
14. Nominal roll of the appellant has been placed on record, as per which, the appellant was released on bail on 23.10.2004 pursuant to the order passed by this Court. As per the nominal roll, as on 23.10.2004, the appellant has undergone incarceration of 4 years, 3 months and 24 days with remission of 8 months 21 days earned, and unexpired portion of sentence being 1 year, 11 months and 15 days. His jail conduct has been found to be satisfactory.
15. In view of the facts and circumstances of the case, the judgement of conviction and order on sentence both dated 26.02.2002 are upheld. However, considering the submissions made before this Court as well as the legal position qua the applicability of Probation of Offenders Act as iterated above, the appellant is directed to be released on probation under Section 4 of the Probation of Offenders Act, 1958 on entering into bond and two sureties to ensure that he would maintain peace and good behaviour for the remaining part of his sentence, failing which he may be called upon to serve the sentence. The appeal is disposed of in the above terms.
16. Copy of this order be communicated to the concerned Jail Superintendent and Trial Court.
