CRA Nos.459 & 502-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. [CASE NUMBER] [ENTITY] & Anr. Appellants Versus [ENTITY] Respondent 2. CRA No.502-SB of 2000 [ENTITY] & Ors. Appellants Versus [ENTITY] Respondent Date of Decision: 30.8.2012 CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- S/Shri [ENTITY] & [ENTITY], Advocates for the appellants in both the cross appeals. Mr.[ENTITY], D.A.G. Punjab for the respondent-State. [ENTITY], J. (Oral)
As identical questions of law & facts are involved, therefore, I propose to decide both the above indicated cross-appeals, arising out of the same incident/case, in order to avoid the repetition.
2. The matrix of the facts & material, unfolded during the course of trial, which needs a necessary mention for the limited purpose of deciding the instant appeals and emanating from the record, is that, in the wake of complaint of complainant [ENTITY] (for brevity "the complainant"), a criminal case was registered against appellants [ENTITY] son of [ENTITY] and his son [ENTITY], vide FIR No.14 dated 27.1.1997, on accusation of having committed the offences punishable under [SECTION] & [SECTION] read with [SECTION] [ACT] and [SECTION] of the [ACT] by the police of Police Station Sunam, District Sangrur.
3. After the completion of the investigation, the police submitted the challan/final police report, in terms of [SECTION] [ACT]. Consequently, both the appellants were charged for the commission of offences punishable under [SECTION] & [SECTION] [ACT] by the Addl. Sessions Judge, by means of order dated 22.11.1997.
4. Having completed all the codal formalities of trial, the Sessions Judge convicted & sentenced appellant [ENTITY] to undergo rigorous imprisonment for a period of 3 years, to pay a fine of ` 1000/- and in default of payment of fine, to further undergo RI for a period of three months, on accusation of having committed an offence punishable under [SECTION] [ACT]. Likewise, to undergo RI for a period of three years, to pay a fine of ` 500/- and in default of payment of fine, to further undergo RI for a period of one month under [SECTION] of the [ACT], whereas appellant [ENTITY] was convicted & sentenced only to pay a fine of `1000/- and in default of payment of fine, to undergo RI for a period of three months, for the commission of offence punishable u/[SECTION] [ACT], by way of impugned judgment of conviction & order of sentence dated 19.5.2000.
5. The appellants did not feel satisfied and preferred the present appeal, bearing [CASE NUMBER] (for short "the 1st appeal"), to challenge the impugned judgment of conviction and order of sentence.
6. At the same time, appellant [ENTITY] (in 1st appeal) also sustained grievous & simple injuries at the hands of [ENTITY], [ENTITY] & [ENTITY] sons of [ENTITY] son of [ENTITY] in the same incident/occurrence. Therefore, in pursuance of the complaint of complainant [ENTITY] s/o [ENTITY], another criminal cross case was registered against [ENTITY], [ENTITY] sons of [ENTITY], [ENTITY], [ENTITY] & [ENTITY] sons of [ENTITY] son of [ENTITY] on accusation of having committed the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] by the police of same Police Station Sunam, Distt.Sangrur.
7. After completing all the statutory formalities of trial, while acquitting accused [ENTITY] and [ENTITY], the trial Court convicted and sentenced accused [ENTITY] to undergo rigorous imprisonment for a period of two years, to pay a fine of ` 500/-and in default of payment of fine, to further undergo RI for a period of one month for the commission of offence punishable under [SECTION] [ACT]. [ENTITY], accused [ENTITY] and [ENTITY] were convicted & sentenced only to pay a fine of ` 1000/- each and in default of payment of fine, to undergo RI for a period of three months each under [SECTION] [ACT], by virtue of impugned judgment of conviction & order of sentence dated 19.5.2000.
8. Aggrieved by the impugned judgment of conviction and order of sentence, appellants [ENTITY], [ENTITY] & [ENTITY] sons of [ENTITY] directed the appeal, bearing [CASE NUMBER] (in short "2nd appeal"). That is how I am seized of the matter.
9. Having heard the learned counsel for parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeals as regards the conviction of the appellants in both the cross-appeals is concerned.
10. Ex facie, the argument of learned counsel that since the evidence brought on record by the prosecution falls short as is required to be proved a criminal case, so, the appellants are entitled to acquittal, is not only devoid of merit but misplaced as well.
11. As is evident from the record that it is a case of free fight and both the parties have admitted their participation in the occurrence. Moreover, the bare perusal of evidence on the record would reveal that the cross cases are duly proved by ocular evidence of injured/eye/stamped witnesses. They have fully proved the complicity of the appellants in both the cases. Not only that, the ocular version of injured witnesses further finds corroboration from the medical evidence on record. The prosecution witnesses have duly corroborated its version on all vital counts. The learned counsel for appellants did not point out any legal infirmity or major contradictions in the evidence to lodge the prosecution versions in the cross cases, which are otherwise proved by reliable & trustworthy evidence.
12. Faced with the situation, the learned counsel, in both the appeals, have fairly acknowledged that in view of the cogent evidence on record, they will not be in a position to contest the conviction of the appellants any more. They have no other argument/material/ground, much less cogent, to assail the prosecution version. In this manner, as no other legal infirmity has been pointed out by them, therefore, the impugned judgments of conviction are hereby maintained in the obtaining circumstances of the case.
13. However, the contention of learned counsel that since the parties have amicably settled their dispute during the pendency of appeal, by means of compromise deed (Annexure A1), affidavits (Mark PX) and (Mark PX/1), so, lenient view be taken against the appellants in the matter of sentence, has considerable force.
First Appeal
14. As is evident from the record that the occurrence in the instant case is of 27.1.1997. The appellants have already suffered the agony of protracted trial and appeal for more than 15 years. The incident originated at a spur of moment and cross cases were registered against the convicts in both the appeals arising out of the same occurrence. Above-all, it is a case of free fight. Appellant [ENTITY] was 70 years of age at the time of trial. The parties belong to the same village and are residing peacefully and now they want to live in peace and harmony in future. Moreover, they have amicably settled their dispute with the intervention of respectables & their relatives and executed the compromise deed dated 9.3.2012 (Annexure A1). They have no grudge against each other. They have filed their respective affidavits (Mark PX) & (Mark PX/1), reiterating the factum of compromise. As per the custody certificate issued on 13.3.2012, appellant [ENTITY] has already undergone a period of 3 years, 3 months & 6 days, out of total awarded sentence of imprisonment for a period of 3 years. There is no history of his previous involvement in any other criminal case.
15. Therefore, taking into consideration the totality of facts & circumstances, oozing out of the record as indicated here-in-above, to my mind, it will be in the interest and justice would be sub-served, if the sentence of imprisonment of 3 years imposed on appellant [ENTITY], is reduced to the period (3 years 3 months & 6 days) already undergone by him. Ordered accordingly.
Second Appeal
16. Now adverting to the case of appellant [ENTITY], who was convicted and sentenced to undergo RI for a period of two years for the commission of offence punishable under [SECTION] [ACT]. It may be added that the trial Court did not deal with his case for the purpose of granting the benefit of probation to him. [SECTION] [ACT] deals with order to release the accused on probation of good conduct or after admonition, while [SECTION] [ACT] posits that "where in any case the Court could have dealt with an accused person under [SECTION] or under the provisions of the [ACT], but has not done so, it shall record in its judgment the special reasons for not having done so." Meaning thereby, the trial Court while not granting the benefit of [ACT] to the accused, has to record special reasons. But, in the instant case, the trial Court did not assign any reasons, muchless cogent and just bye-passed the mandatory provisions, on unsustainable grounds in this respect.
17. Moreover, [SECTION] of the [ACT] (hereinafter to be referred as "the Act") postulates that 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 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 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.
18. The combined and meaningful reading of these provisions would reveal that non obstante clause contained in [SECTION] points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the appellant under such circumstances. The reliance in this regard can be placed to the judgments of Hon'ble Apex Court in case Isher Das vs. The [ENTITY], AIR 1972 Supreme Court 1295(1) and [PRECEDENT].
19. Above being the legal position and material on record, now the short & significant question, though important, that arises for determination in the present case is, as to whether appellant [ENTITY] is entitled to the benefit of probation or not.
20. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the affirmative and it would be expedient in the interest and justice would be sub-served, if the benefit of probation is granted to appellant [ENTITY], inter alia, on the following grounds:-
i) It is not a matter of dispute that the present case was registered against the appellant on 27.1.1997 and he has suffered the agony of protracted trial for the last more than 15 years.
ii) The parties have amicably settled their dispute, by way of compromise deed (Annexure A1), affidavits (Mark PX) & (Mark PX/1).
iii) They have decided to live in peace & harmony in the village in future.
iv) Appellant only gave a dang blow, which landed on the right leg (non-vital part) of [ENTITY]. He did not repeat the injury.
v) It is a case of cross version and free-fight. vi) Appellant was convicted only for the commission of an offence punishable under [SECTION] [ACT]. vii) Appellant was a young person of about 32 years of age at the time
of alleged offence. He is married person, having three daughters and parents to maintain.
viii) Appellant is a first offender and there is no history of his previous conviction.
ix) The antecedents and credentials of the appellant are such that he has not been found involved in any other case.
x) He has been leading a life of honest peaceful citizen in the locality.
xi) The latest trend of penology is reformatory.
21. The learned State counsel has acknowledged the legal position & factual matrix of the case.
22. Taking into consideration the period of agony of protracted trial, age and antecedents of appellant [ENTITY], totality of other facts & circumstances emanating from the record, as discussed here-in-above, to my mind, no useful purpose would be served in again sending him to jail to serve out the remaining period of sentence and instead of sending him to prison, he be released on probation under the present set of circumstances. Consequently, it is directed that appellant [ENTITY] be released on probation on his furnishing personal bond (within two months) in the sum of Rs.25,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the conditions that he would keep peace and be of good behaviour, for a period of two years from the date of passing of this order. Needless to mention that in case, he is found to be indulged in any illegal activities, the sentence awarded to him by the trial Court shall stand revived.
The remaining sentences of fine imposed on the appellants by the trial Court are hereby maintained.
23. In the light of aforesaid reasons, both the appeals are hereby dismissed on merits and the impugned judgments of conviction in both the appeals are maintained. However, the orders of sentence are accordingly modified to the extent and in the manner depicted here-in-above.
24. Needless to mention that natural consequences will follow accordingly.
30.8.2012 ([ENTITY]) AS Judge Whether to be referred to reporter? Yes/No