Judgment:
Sham Sunder, J.
1. This appeal is directed against the judgment of conviction dated 5.4.1995 and the order of sentence dated 17.4.1995, rendered by the Court of Additional Sessions Judge, Sonepat vide which it convicted the accused (now appellants) for the offence, punishable under 411 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of three years each and to pay a fine of Rs. 2,000/- each and in default of payment of the same to undergo rigorous imprisonment for another period of one year each.
2. The facts, in brief, are that Baljit Singh complainant was employee as a driver with Nahar Singh on his maruti car bearing registration No. DNB-4759 which was being used as a Taxi. He used to park it at taxi stand, Gohana. On 1.5.1994, Jitender accused (since acquitted) booked the said taxi for a marriage party for Rs. 500/-. The marriage party had to proceed from village Butana to village Bayanpur on 2.5.1994. On 2.5.1994 at 8 a.m. he reached village Butana. Six persons tried to board his taxi to which he resisted and, accordingly, took five of them to village Bayanpur. Again at 7.30 p.m. the said five persons, who were under the influence of liquor boarded the taxi. When they reached ahead of police lines on Gohana Road, then one of them asked him to stop the car. He stopped the same and then one of them question him why he did not allow all the six to sit in the car. Accordingly, one of them made him to get down from the taxi and forcibly snatched the car from him, Thereafter, accused Jitender (since acquitted) occupied the driving seat and started the car for Gohana along with is associates. The complainant then proceeded to the Police Station for the purpose of registration of the case. On the way SI Pritam Singh, PW3 met him and his statement Ex.PA was recorded, on the basis whereof formal FIR was recorded.
3. During the course of investigation, SI Pritam Singh, PW3 recovered the car, in question, from accused Sanjay Kumar, Ashok Kumar, Sumer and Dinesh Kumar on 10.5.1994 vide recovery memo Ex.PC and took the same into possession. He prepared the site plans of the spot Ex.PB and place or recovery Ex.PD. After the completion of investigation the accused were challaned.
4. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Section 395 of the Indian Penal Code, was framed against then, to which they pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined as many as three witnesses. Bhoj Raj, retired Sub-Inspector, PW1 stated that he recorded the formal FIR Ex.PA/1 and also dispatched the special reports to higher authorities including the Ilaqa Magistrate, through constable Satbir Singh No. 970.
6. Baljit Singh, PW2, the driver of the taxi, aforesaid, did not support the case of the prosecution. He failed to identify the persons, who forcibly snatched away his taxi.
7. PW3 SI Preetam Singh, is the Investigating Officer. He stated that on 2.5.1994 he recorded the statement of Baljit Singh, complainant. It was further stated by him that he also recovered the car and arrested the accused. Thereafter, the public Prosecutor for the State, closed the prosecution evidence.
8. The statements of the accused under Section 313 Cr.P.C. were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Jitender, accused (since acquitted) stated that he did not have any connection with the occurrence.
9. The remaining accused, in their statements under Section 313 Cr.P.C. stated that no recovery of car (taxi) was effected from them. The accused, however, did not lean any evidence in defence.
10. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused (now appellants), as stated above, for the offence punishable under Section 411 of the Indian Penal Code and acquitted them for the offence punishable under Section 395 IPC. Accused Jitender, was, however, acquitted.
11. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial court, the instant appeal, was filed by the accused/appellants.
12. I have heard the counsel for the parties, and have gone through the evidence and record of the case, carefully.
13. The counsel for the appellants, did not challenge the conviction of the appellants. He, on the basis of the copies of the certificates of the Board of School Education examination, placed on record, by him, submitted that at the time of occurrence, the appellants were below 21 years of age. He further submitted that even at the time of conviction on 5.4.1995 by the trial Court for the offence, punishable under Section 411 of the Indian Penal Code, they were below 21 years of age, and as such, were statutorily entitled to be released on probation of good conduct but the trial Court did not do so, without any rhyme or reason. The counsel for the respondent could not dispute the factum that the age of the appellants, at the time of their conviction on 5.4.1995 was below 21 years. In these circumstances, the counsel for the appellants, submitted that the appellants, being not previous convicts, they be released on probation of good conduct. The submission of the counsel for the appellants, appears to be correct. The trial Court was required to take into consideration the relevant provisions of the Probation of Offenders Act. The trial Court was also required to consider and decide as to whether, the appellants were statutorily entitled to be released on probation of good conduct, being below 21 years of age, even at the time of conviction. If it wanted to award sentence, to the appellants, then it was required of it, to call the report of the Probationary Officer, and after taking into consideration the same pass an appropriate order. The trial court, however, did not do so. The appellants are not previous convicts. There is nothing on the record, that they committed any offence, after their conviction in the instant case. Keeping in view the facts and circumstances of the case, and the factum that the appellants were below 21 years of age, at the time of conviction and, as such, statutorily entitled to be released on probation of good conduct, and the nature of offence, their conviction deserves to be maintained and they are held entitled to be released on probation of good conduct.
14. For the reasons recorded above, the appeal is partly accepted. The judgment of conviction is maintained. The order of sentence is set aside. Instead appellants are ordered to be released on probation of good conduct, for a period of two years each, on their furnishing personal bond in the sum of Rs. 5,000/- each, with one surety each of the like amount, to the satisfaction of the Chief Judicial Magistrate/Ilaqa Magistrate, undertaking to appear and receive sentence, as and when called upon, to do so, during this period and, in the meanwhile, maintain peace and be of good behaviour. They shall also furnish an undertaking, to the effect, that they shall not commit any offence, of the like nature, during the period of probation. The appellants shall also pay costs of proceedings to the tune of Rs. 5,000/- each, less the amount of fine, if already paid, which shall be adjusted, against the costs imposed. The appellants shall furnish the probation bonds, and the undertaking, as also pay the costs of proceedings, within a period of two months from the date of receipt of a certified copy of the order, by the Court of Chief Judicial magistrate/llaqa Magistrate. In case, they fail to do so, then the Chief Judicial Magistrate/IIaqa Magistrate shall be at liberty to proceed, in accordance with the provisions of law, for compliance of the judgment.