Criminal Revision No. 2778 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2778 of 2009 Date of Decision: 17.02.2010 1. Shakti Sharma s/o Sh. Sham Lal Sharma, r/o H. No. 692/6, Khel Bazar, Panipat. 2. Rishiraj @ Bittu son of Sh. Babu Ram Sharma, r/o Basapara Mohalla, Old Faridabad. 3. Gopal Krishan son of Vishnu Dutt Sharma, r/o Uttam Nagar, Tehsil Camp Panipat. 4. Sanjay son of Gopal Krishan Sharma, r/o Uttam Nagar, Tehsil Camp, Panipat. 5. Netar Pal son of Nek Ram caste Katheria Dhanak, r/o Kudasa, P.S. Aliganj, District Etta (U.P.). ... Revision-Petitioners Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ashwani Talwar, Advocate, for the revision-petitioners. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. * * * * This revision-petition is directed against the judgement of conviction dated 28.07.05, and, the order of sentence dated 29.07.05, Criminal Revision No. 2778 of 2009 2 rendered by the Court of Judicial Magistrate 1st Class, Panipat, vide which, it convicted the accused, for the offences, punishable under Sections 147, 148, 323 and 325 read with Section 149 IPC, and sentenced them to undergo various terms of imprisonment, and the judgement dated 22.10.09, rendered by the Court of Additional Sessions Judge, Panipat, vide which, it dismissed the appeal. 2. The facts, in brief, are that, on 21.10.95, Sulekh Chand son of Brahm Sarup, moved an application, before the Police, to the effect, that he was a resident of Rajputana Bazar, Panipat, and President of Aggarwal Vaish Panchayat (Registered). It was stated that the Panchayat, had a total membership of 22. It was further stated that Naresh Chand Singhla, was the Secretary, whereas, Sudhir Jindal, was the cashier of the Panchayat. It was further stated that the Panchayat, had removed the priest Shakti Sharma, vide resolution dated 08.10.95. However, the said priest, used to create nuisance with the cooperation of anti-social elements and misbehave in the temple, as a result whereof, a Civil Suit, was filed, in the Court of Civil Judge (Senior Division), Panipat, on 19.10.95. Consequently, a notice dated 04.11.95, was issued to Shakti Sharma, priest. It was further stated that an application, was also moved, before the Deputy Commissioner, who too issued a notice to Shakti Sharma, priest. It was further stated that, in the temple, donation boxes, were installed, in front of various deities, wherein, the donors, used to put the cash donation, and the keys thereof, remained in the custody of the cashier. It was further stated that the donation boxes, used to be opened, in the presence of the Criminal Revision No. 2778 of 2009 3 President, as well as, one of the members of the Panchayat. It was further stated that, on 21.10.95, at about 9.00/9.15 AM, Sulekh Chand, complainant alongwith Prahlad Rai, Sudhir Jindal, Partap Singh, Jaswant Rai, and, Naresh Singla, went to the temple and opened the donation boxes, for counting the cash. It was further stated that when they opened the donation box, placed in front of Maa Kali Temple and started counting the cash, had counted Rs. 1700/-, and were about to resume counting of the coins, Shakti Sharma alongwith his nephew Vicky, Shanker and 5-6 other persons, armed with deadly weapons, came there. It was further stated that all the aforesaid persons raised an exhortation, and told them (members of the complainant party) to hand over the entire cash and keys to the priest (Shakti Sharma), failing which, they would be done to death. They also proclaimed that, nobody should try to leave the temple. It was further stated that, thereafter, Shakti Sharma and his two nephews gave stick (danda) blows, on the person of the members of the complainant party and snatched cash and keys from them. It was further stated that, in the meantime, Prahlad and Varinder, who had come to instal lights, on the temple, in view of the Diwali fair, raised an alarm, as a result whereof, the remaining members of the complainant party also came from the office of the temple. It was further stated that, the accused, threatened to teach them a lesson, if they came closer, but, when the members of the complainant party, mustered courage to catch hold of the accused, they became scared and fled from the spot with cash and keys, leaving behind their respective weapons. It was further stated that only Shakti Criminal Revision No. 2778 of 2009 4 Sharma, priest and his two nephews were known, to the members of the complainant party, whereas, the other persons accompanying them, at the relevant time, were not earlier known. It was further stated that, when the accused were fleeing, at the relevant time, they were hit by their own sword. It was further stated that, as such, the members of the accused party, caused grievous injuries, on the person of the members of the complainant party, as a result whereof, case FIR No. 468 dated 21.10.95, under Sections 147, 148, 323 and 324 read with Section 149 IPC, was registered, against them, which was investigated by Ajit Singh, Deputy Superintendent of Police. Site plan was prepared. The accused were arrested. After the completion of investigation, they were challaned. 3. On their appearance, in the Court, the accused, were supplied the copies of documents, relied upon by the prosecution. 4. Charge under Sections 148, 323 and 325 read with Section 149 IPC, was framed against the accused, which was read-over and explained to them, to which, they pleaded not guilty, and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. C.V. Singh (PW1), Dr. Ashu Sethi (PW2), Sulekh Chand, complainant-cum-injured (PW3), Prahlad Rai (PW4), Ajay Verma, Assistant Ahlmad (PW5), and, Ajit Singh (PW6), the Investigating Officer. Thereafter, the prosecution closed its evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the Criminal Revision No. 2778 of 2009 5 incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They, however, examined Vinod Gupta (DW1), in their defence. Thereafter, they closed the defence evidence. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, two appeals, were preferred by the appellants, which were dismissed by the Court of Additional Sessions Judge, Panipat, vide judgement dated 22.10.09. 9. Still feeling dissatisfied, the instant revision-petition, has been filed by the revision-petitioners. 10. I have heard the Counsel for the revision-petitioners, and, have gone through the record of the case, carefully. 11. The Counsel for the revision-petitioners, did not challenge the conviction, recorded by the Courts below. Even otherwise, he could not successfully challenge the same, as the Courts below, on due scrutiny of the evidence of Dr. C.V. Singh, PW1, who proved MLR exhibit PW1/A, in respect of the injuries, sustained by Sulekh Chand, complainant-cum-injured, Prahlad Rai, another injured, Dr. Ashu Sethi, PW2, and Sulekh Chand, injured-cum-complainant, PW3, were right, in coming to the conclusion, that the same was cogent, convincing, reliable and trustworthy. These witnesses were thoroughly cross- examined, but nothing of consequence, could be got elicited from their mouth, which may go to discredit their evidence. They stood the test of Criminal Revision No. 2778 of 2009 6 touchstone of all probabilities. The Courts below, also found, that it was Shakti Sharma, one of the petitioners, who gave a fist blow, at the mouth of Sulekh Chand, as a result whereof, he lost his canine tooth. The judgement of conviction, recorded by the trial Court, therefore, does not suffer from any illegality or perversity, warranting the interference of this Court. 12. The Counsel for the revision-petitioners, however, submitted that the trial Court, did not record special reasons for declining the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. He further submitted that the concession of the provisions of Section 4 of the Probation of Offenders Act, 1958, be extended, to the revision-petitioners. The submission of the Counsel for the revision-petitioners, in this regard, appears to be correct. The perusal of the record, clearly goes to show, that the Courts below, did not record any special reasons, as to why, the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958, was declined, to the revision-petitioners. Keeping in view the facts and circumstances of the case; the nature of offences; the antecedents of the revision- petitioners; and the factum, that they are not previous convicts, they deserve the benefit of the provisions of Section 4 of the Probation of Offenders Act, 1958. The order of sentence, is, thus, liable to be set aside, and instead the revision-petitioners, are liable to be released on probation of good conduct. 13. For the reasons recorded above, the revision-petition, is partly accepted. The judgement of conviction is maintained. The order Criminal Revision No. 2778 of 2009 7 of sentence is set aside. Instead the petitioners, are ordered to be released on probation of good conduct, for a period of 1 ½ years each, on their furnishing bail bonds, in the sum of Rs. 5,000/- each, with one surety each, in the like amount each, to appear and receive sentence, when called upon, during this period, and undertake not to commit such offences, during the aforesaid period. The petitioners, shall also pay costs of the proceedings, to the tune of Rs. 5,000/- each. As and when the amount of costs is deposited, half of the same shall be paid to the injured, in equal shares, against valid receipts. If the amount of fine, has already been paid, that shall be adjusted towards costs. 14. The probation bonds, shall be furnished and the costs shall be paid within a period of 03 months, from today, before the Court of the Chief Judicial Magistrate. In case, the probation bonds, are not furnished, and the costs aforesaid are not paid, within the time stipulated, then the Court of the Chief Judicial Magistrate, shall be at liberty, to proceed further, for complying with the judgement of this Court, in accordance with the provisions of law. 17.02.2010 (SHAM SUNDER) Amodh JUDGE