ORDER
B.N. Dash, J.
1. The conviction of the petitioner under Section 379, I.P.C. and sentence of rigorous imprisonment of three years imposed on him by the trial Court which are all upheld in appeal have been assailed in this revision.
2. The facts are simple in nature. The prosecution case is that on 23-2-1981 at twilight time while the victim lady Jyotsnamani Panda (P.W. 8) and her daughter Usharani Panda (P.W. 2) were easing on a river bank, the petitioner stealthily came from behind and snatched away the golden chain from the neck of P. W. 3 causing some bruises in that region. P.W. 8 caught hold of the napkin of the petitioner but the latter snatched away the same and took to his heels towards Barudisahi of their village. At that time P.W. 8 shouted to return the necklace naming the petitioner and on hearing such shout one Bukhishyam Panda (P.W. 3) who was also easing nearby focussed torch light and with the flash thereof he could recognise that a person like the petitioner was running away from the direction where P.W. 8 was standing. P.W. 2 could also identify the petitioner as the culprit. The petitioner was chased for apprehension up to certain distance, but the attempt proved abortive. Thereafter, P.Ws. 2 and 8 returned to their house and disclosed the incident to their other family members inasmuch as the husband of P.W. 8 Bansidhar Panda (P.W. 1) was not there in the village. Thereupon, the uncle of P.W. 1 (P.W. 6) went in search of the accused and finding him in the ‘Akhadaghar’ in Barudisahi of their village, brought him to the Village ‘Basti. When questioned by some villagers about the occurrence of theft, the petitioner admitted to have stolen the golden necklace from the neck of the P.W. 8 and promised to return the price thereof a couple of days later. In the same night P.W. 1 returned to his house and hearing everything from P.Ws. 2 and 8 went to Basingha Police Station and lodged the F.I.R. at about 3 a.m. Investigation followed in course of which P.W. 8 was medically examined by P.W. 7 and after completion of investigation the petitioner faced trial for having committed the offence under Section 379, I.P.C.
3. The defence was one of denial and it was pleaded by the petitioner during his examination under Section 313, Cr. P.C. that the case had been falsely started against him because his father was in litigating term with the father of P.W. 1. No witness was, however, examined in support of the defence plea.
4. The prosecution examined as many as 10 witnesses out of which P.Ws. 1 to 3 and 6 to 8 have already been introduced. P.W. 4 merely deposed that on the date of the occurrence at about evening hour while he was returning from Barudisahi of his village he saw the accused going towards that sahi. P.W. 5 was alleged to be a witness to the extra-judicial confession but he did not support the prosecution case. P.W. 9 was a witness to the extra-judicial confession and P.W. 10 was the Investigating Officer. On the basis of the evidence of P.Ws. 2, 3 and 8 which were corroborated by the medical evidence of P.W. 7 as also the evidence of extra-judicial confession of P.W. 9, both the courts below concurrently found that the petitioner committed theft of a golden chain from the neck of P.W. 8. Accordingly, the trial court convicted and sentenced the petitioner as stated above with the observation that the gravity of the offence did not justify the extension of benefit of Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act’). Appeal against such conviction and sentences having failed, the present revision has been filed.
5. An argument is advanced to up set the concurrent finding of conviction of both the courts below. As already indicated above, both the courts below have recorded the finding of conviction relying on the direct evidence of P.Ws. 2, 3 and 8 and the evidence of P.W. 9 regarding extra-judicial confession of the petitioner. Medical evidence of P.W. 7 has been taken as a piece of corroboration for the purpose of such finding. Nothing has been pointed out to show how the finding is grossly erroneous or perverse. This Court on its revisional jurisdiction does not find any justification for interference with such concurrent finding.
6. It is then contended by Mr. P. K. Dhal, learned Counsel for the petitioner that the petitioner being a young man of 39 years of age at present and a first offender, the benefit of the Act may be extended to him.
7. Section 3 of the Act confers power on the Court to release after due admonition the first offenders who have been found guilty of certain offences including the one under Section 379, I.P.C. Section 4 authorises the Court to release an offender on probation of good conduct where he is found guilty of having committed an offence not punishable with death or imprisonment for life. The sentence is kept under suspension and the Court under this provision keeps control over the offender and calls upon him to receive sentence if he violates the bond during such period, not exceeding three years, specified in the bond. Section 6(1) applies to offenders under 21 years of age found guilty of offence not punishable with death or imprisonment for life. Unlike Section 6, Section 3 or Section 4 does not require the Court to give special reasons for not applying those provisions to offenders found guilty of having committed offences enumerated therein. Such remiss was, however, removed by Section 361 of the Cr. P.C., 1973 which directs the Court to record special reasons in the judgment why it does not intend to extend the benefit of the Act where a convict is entitled to such benefit.
8. As already pointed out above, the appellate Court has not at all considered about the justification or otherwise of extending the benefit of the Act to the petitioner. The trial Court has declined to extend the benefit saying that the offence committed by the petitioner is a grave one. For the purpose of the Act, only offences punishable with death or imprisonment for life are grave ones and in commission of such offence benefit of the Act cannot be extended, but the offence of theft under Section 379, I.P.C. committed by the petitioner has to be treated as a minor offence because a convict thereunder is entitled to be released under certain condition after due admonition under Section 3 without even being asked to execute a bond for good behaviour for any specified period under Section 4. So, the ground given by the trial Court for not extending the benefit of the Act cannot be said to be a valid one.
The petitioner was aged about 29 years at the time of commission of the offence and there is nothing to show that after commission of the crime, during the last about 10 years he has become a hazard to the society. Under these circumstances, I hold that the benefit of Section 4 of the Act should be extended to him. I, therefore, direct that the petitioner be released on his entering into a bond of Rs. 5,000/- with one surety for the like amount to the satisfaction of the learned S.D.J.M., Baripada to be of good behaviour for a period of 2 years and to appear and receive sentence when called upon during this period. In the meantime, the petitioner should also keep peace.
9. With the aforesaid modification in the sentence, the revision is dismissed.