M.R. Verma, J.
1. This is an appeal against the judgment dated 16-1-1995, rendered by the learned Sessions Judge, Sirmaur District at Nahan, whereby in Criminal Appeal No. 31-N/10 of 1994/1993 while maintining the conviction of the accused respondents (hereinafter referred to as 'accused') for the commission of offence punishable under Section 380 of the Indian Penal Code the sentence awarded to the accused to undergo the rigourous imprisonment for one year and to pay fine of Rs. 500/- each by the learned Chief Judicial Magistrate, Sirmaur at Mahan, has been substituted by release of the accused after due admonition.
2. Case of the prosecution, in brief, is that accused Ishwar Dass owned a cow which on turning dry was sold by him to PW 1 Harnam Dass for consideration in the sum of Rs. 1000/-on 9-ll-1990. PW Harnam Das took proper care of the cow and got it artificially inseminated with the result that the cow delivered a calf in the year 1991. After about a month of the delivery of the calf the accused went to the house of PW Harnam Dass and stealthily removed the cow and its calf therefrom in the absence of PW Harnam Dass and without the knowlege of his wife PW 4 Daropti. The accused were seen by one PW 2 Sunder Singh taking the cow and calf to their house. He went to the house of PW Harnam Dass and informed his wife PW Daropti about the taking of the cow by the accused to their house. PW Harnam Dass was informed of the theft of the cow and the calf by his younger brother Het Ram. On reciept of the information PW Harnam Dass wen to the Police Station Pachhad where on the basis of his version about the theft of the cow F.I.R. Ext. PA was registered. During investigation the cow and the calf were taken in possession by the police and was handedover on 'Spurdari' to Harnam Dass vide Ext. PB. On being satified with the commission of offence under Section 380 IPC by the accused, the Police submitted a charge sheet against the accused in the Court of learned Chief Judicial Magistrate who at the trial found the accused guilty of the Commission of an offence punishable under Section 380 IPC and accordinlgy convicted them and each of them was sentenced to underego rigorous imprison-ment of one year and to pay fine in the sum of Rs. 500/-.
3. Feeling aggrieved the accused preferred an appeal before the learned Sessions Judge who delivered the impugned judgment whereby the conviction of the accused for the commission of an offence punishable under Section 380 IPC was maintained but sentence of imprisonment and fine awarded to them were substitued by release of the accused after due admonition. It is against the aforesaid background that the present appeal has been preferred by the State.
4. I have heard the learned Assistant Advocate General for the appellant and the learned counsel for the accused/respondents and have gone through the records. The only contention which has been raised for the appellant in this appeal is that the lower appellate Court has committed a grave error by releasing the accused persons after admonition which has resulted in grave mischarraige of justice.
5. At the very outset it may be pointed out that under the Criminal Jurisprudence the object of awarding punishment to a person who is guilty of the commission of an offence is prevention of the Crime and the punishment is intended to prevent the person who has committed a crime from repeating the act and also intended to prevent others from committing similar crimes by taking a lesson from the fate of the punished accused. With the emergence of new conception about dealing with the delinquents and criminals in a manner so as to reform them and to give them a chance to reform themselves, the Probation of Offenders Act was enacted by Parliament. The said Act shifts emphasis from deterrence to reformation and from the crime to the criminal as per the modern concept of punishment. Reformation and rehabilitation of the offenders are the objections of the provisions regarding release of the accused persons after admonition or on probation. The legislative trend, of late, has also been that reformation and rehabilitation of offenders and not mere deterrence, are now among the objects of the administration of criminal justice.
6. The Hon'ble Supreme Court in case Bishnu Deo Shaw v. State of West Bengal (AIR 1979 SC 964), in this regard has observed as follows :-
25. Apart from Section 354(3), there is another provision in the Code which also uses the significant expression 'special reasons'. It is Section 361. Section 360 of the 1973 Code re-enacts in substance, Section 562 of the 1898 Code and provides for the release on probation of good conduct or after admonition any person not under twenty one years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twenty one years of age or any women who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender and if it appears to the Court, having regard to the age, character or antecedents of the offender and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct or after admonition. 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-or youthful offenders, where the Court could have done so, Section 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 Section 360 wherever it is possible to do so, and, to state 'special reasons' if it does not do so. In the context of Section 360, the 'special reasons' contemplated by Section 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 irrour country. Section 361 and Section 354 (3) have both entered the statute Book at the same time and they are part of the emerging picture of acceptance by the Indian Parliament of the new trends in criminology. 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.
7. Therefore, while determining the question as to whether there has been mis-carriage of justice by substituting the sentence of imprisonment and fine awarded to the accused by admonition, the above principle has to be kept in view.
8. In order to give benefit to a convict under Section 3 of the Probation of Offenders Act the following conditions must be fulfilled :
(1) There must not be any previous convictions, and,
(2) The offender should be found guilty of having committed one of the following offenders :
(a) Theft (Section 379,I.P.C.).
(b) Theft in dwelling houses, e.g. (Section 380).
(c) Theft by clerk or servant of property in possession of master (Section 381).
(d) Dishonest misappropriation (Section 404).
(e) Cheating (Section 420).
(f) Any offence punishable with imprisonment for not more than two years or with fine or with both under the Indian Penal Code or any other law.
9. Apart from the above the Court must be of the 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 give him the benefit of the provisions of Section 3 of the Probation of Offenders Act.
10. There is no dispute that the accused had been found guilty of the commission of offence punishable under Section 380, I.P.C. which is covered under Section 3 of the Probation of Offenders Act for the purpose of releasing the convict after due admonition and the accused are not previous convicts and thus are the first offenders.
11. It also emerges from the record that the cow stolen by the accused was purchased by the accused Ishwar Dass after taking loan in the sum of Rs. 2775/- from UCO Bank, Naina Tikkar and even in the middle of the year 1993, much after the occurrence, a part of the loan was yet to be repaid by the said accused. It is the cow purchased with the aforesaid loan amount which is stated to have been sold to PW Harnam Dass by accused Ishwar Dass for consideration in the sum of Rs. 1,000/- and subsequently stolen along with its calf from the house of the PW Harnam Dass. It is not disputed that the accused are poor persons and belong to the schedule caste and factum of their property can by necessary implications be gathered from the fact that a cow which was purchased after getting a loan of Rs. 2775/-in the year 1987 had to be sold for a sum Rs. 1000/- in the year 1990. It is also not disputed that the accused who are poor and rustic villagers have young school going children including a daughter aged 16 years. The accused are the only bread earning members of the family. These admitted circumstances appears to have weighed with the learned Sessions Judge in directing the release of the accused after due admonition and these circumstances are such which could reasonably be taken into account to deal with the accused.
12. The case against the accused was registered on 14-10-1991 and the charge sheet against them was submitted in May, 1992. Since then they are facing litigation before different Courts now for a period of almost 7 years. This is another additional reason which now must weigh for not interfering with the impugned judgment of the learned Sessions Judge.
13. For the reasons stated herein in above, the impugned judgment passed by learned Sessions Judge does not call for interference by this Court. Accordingly, the Appeal fails and is dismissed.