Criminal Revision No.852 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) Criminal Revision No.852 of 2003 Date of Decision 29.09.2010 Daulat @ Rajiv ...... Petitioner VERSUS State of Haryana ...... Respondent (ii) Criminal Revision No.947 of 2003 Kalle @ Kuldeep and another ...... Petitioners VERSUS State of Haryana ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.A.P.S.Deol, Senior Advocate, with Mr.Devinderbir Singh, Advocate, for the petitioner in Criminal Revision No.852 of 2003. Mr.R.A.Yadav, Advocate, for the petitioners in Criminal Revision No.947 of 2003 Mr.J.S.Rattu, Deputy Advocate General, Haryana, for the respondent-State. ***** A.N.JINDAL, J: Accused Daulat, Kali @ Kuldeep and Raju @ Rajpal petitioners-accused (herein referred as 'the petitioners') were prosecuted for causing injuries to Rakesh and Ramesh, consequently, they were tried for the offences under Sections 324, 326 read with Section 34 IPC. Ultimately, vide judgment dated 16/17.04.2001, they were convicted and sentenced to undergo rigorous imprisonment for a period of one year each under Section Criminal Revision No.852 of 2003 2 324 IPC and rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- each under Section 326 IPC. However, the appeals preferred by them, were dismissed on 17.04.2003. Briefly stated, the facts are that on 06.08.1992, on receipt of the medical ruqa from Government Hospital, Gurgaon, ASI Desh Raj went to the hospital and recorded the statement of Ramesh, who disclosed that he and his brother Rakesh Kumar were the property dealers. On 06.08.1992, at about 8.15 p.m. when they were present at their office then the accused came there and started abusing them. Accused Daulat took out a knife and scuffled with his brother Rakesh. He stabbed on the right side of the chest of Rakesh and tried to give second blow on the neck of complainant. The other accused inflicted slaps and fist blows to the complainant. On raising hue and cry, they fled away. On the aforesaid statement made by the complainant, case was registered and investigated. Ultimately, the challan was presented against all the three accused. On finding a prima facie case against the accused, they were charged under Sections 324, 326 read with Section 34 IPC. The prosecution led evidence which was followed by the statement of the accused under Section 313 Cr.P.C. No evidence was led in defence. On trial, all the three accused were convicted and sentenced under Sections 324 and 326 IPC. Their appeals were also dismissed. Arguments heard. Record perused. At the very outset, Mr.A.P.S.Deol, Senior Advocate, has pointed out the illegality of the judgment in as much as the trial Court framed the charges qua the injuries of Ramesh and not qua the injuries of Criminal Revision No.852 of 2003 3 Rakesh and even the injuries of Rakesh were not put up to the accused in their statements under Section 313 Cr.P.C., therefore, the accused could not be convicted for the offence under Section 326 IPC. Having pondered over the arguments, I find myself in agreement with the same. On scrutiny of the record, it transpires that all the three accused were charged for the offences under Sections 324 and 326 read with Section 34 IPC for causing the injuries to Ramesh and no charge was framed qua the injuries caused to Rakesh. The injury to Ramesh as per MLR is reproduced as under:- “There was fresh incised wound on neck 2 cm x .8 cm into skin deep, 3 cms away from middle line on left side of neck, 6 cms below middle of lower jaw vertically placed.” Doctor declared the injuries on the person of Ramesh as simple in nature whereas injury to Rakesh was found as grievous. Similarly, while examining the statement under Sections 313 Cr.P.C., the accused were not asked any question with regard to the injuries qua Rakesh, therefore, no amount of evidence qua the injuries of Rakesh could be taken into consideration. While recording the conviction of the accused, both the Courts below have not taken note of the aforesaid aspects of the case. If the entire prosecution evidence is accepted even then the net result is that the accused could be convicted only for the offence for which they had been charged. No doubt, the accused were charged for the offences under Sections 324 and 326 read with Section 34 IPC but only qua the injuries on the person of Ramesh. The injuries on the person of Ramesh are simple in nature and he did not suffer any grievous injury, therefore, they could not be convicted under Section 326 IPC but only under Section 324 IPC. I was apprised by the counsel that all the three accused have Criminal Revision No.852 of 2003 4 undergone about 4 to 4 ½ months of the substantive sentence. They are the first offenders. They have also compromised with the complainant and injured. They, being the first offenders, must be extended benefit of probation. Having given my thoughtful consideration to the aforesaid contentions, it may be observed that the occurrence took place way back on 06.08.1992. The accused have already suffered a lot as the sword of sentence remained hanging over their heads since then and they being the first offender and having compromised with the injured, there is no reason to decline them the benefit of probation. Resultantly, I partly accept the revision petitions, set aside the conviction of the accused under Section 326 IPC while maintaining under Section 324 IPC. However the sentence under Section 324 IPC is reduced to the extent that they be released on probation under Section 4 (1) of the Probation of Offenders Act, 1958 on their executing a bond in the sum of Rs.10,000/- with one surety in the like amount, to the satisfaction of the Chief Judicial Magistrate, Gurgaon, for a period of one year within which period he shall continue to be of good behaviour and keep peace and in case of breach of conditions of the bond, he will serve the sentence as and when called for. Copy of the order be sent to the Chief Judicial Magistrate, Gurgaon, for compliance. (A.N.Jindal) Judge 29.09.2010 mamta-II