* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on : 27.03.2024
% Pronounced on : 22.04.2024
+ CRL.A. 248/2002
MANOJ KUMAR ..... Appellant
Through: Mr. Shailender Negi, Advocate
versus
STATE ..... Respondent
Through: Mr. Ashneet Singh, APP for State
with SI Arti Singh, P.S. Sector-23,
Dwarka, New Delhi.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
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

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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,

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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

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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,

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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:-

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 “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

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is no longer res integra. The Supreme Court in Lakhvir Singh & Ors. v. State
of Punjab & Anr.1, while dealing with Section 397 IPC providing for a
minimum sentence of 7 year, observed as under:-
“xxx
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.
xxx
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

1
(2021) 2 SCC 763

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 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.
xxx
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.
xxx”
12. The said dicta of the Supreme Court has been recently followed in the
decision in Tarak Nath Keshari v. State of West Bengal2, wherein while
dealing with a provision under the Essential Commodities Act, 1955 which
provided for a minimum sentence, it was observed that:-
“xxx
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

2
2023 SCC OnLine SC 605

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 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

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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.

MANOJ KUMAR OHRI

(JUDGE)
APRIL 22, 2024
ga/d

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