1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT Bhupendra Singh & Anr. vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.319/1987 S.B. CRIMINAL APPEAL UNDER SECTION 374 CODE OF CRIMINAL PROCEDURE 1973 AGAINST THE JUDGMENT AND ORDER DATED 31.07.1987 PASSED BY SHRI RAMESH CHANDRA SHARMA, R.H.J.S. ADDITIONAL SESSIONS JUDGE, KISHANGARHBAS (ALWAR) IN SESSIONS CASE NO. 57/1985 CONVICTING AND SENTENCING THE ACCUSED APPELLANT. DATE OF JUDGMENT: 11.08.2008 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Deepak Sharma, for the appellants. Mr. B.S. Chhaba, Public Prosecutor, for the State. Reportable BY THE COURT: 1. Challenge in this appeal is to the judgment dated July 31th, 1987 whereby, the accused-appellant Bhupendra Singh has been convicted in the offence under Section 326 of I.P.C. and sentenced to rigorous imprisonment for a period of two years and a fine of Rs. 200/-; in default of payment of fine to further suffer a rigorous imprisonment of one month, and the accused-appellant Basti Ram has been convicted in the offence under Section 323 of IPC and released on probation under Section 4 of Probation of Offenders Act on his executing a personal bond in the sum of Rs. 1,000/- and a surety of like amount for a period of one year with the stipulation to appear and receive sentence when called upon during the probation period and meantime to keep the peace and be of good behaviour. 2 2. As per the prosecution case unravelled, the accused persons Bhupendra Singh, Amar Singh and Basti Ram are alleged to have assaulted upon complainant Kanwar Singh on July 28th, 1985 at about 9 pm on the way of village Kultajpur with an intention to kill him. The complainant sustained a grievous injury on his shoulder caused by Farsi. The police lodged the FIR Ex.P/12 on Parchabayan Ex.P/5 of injured Kanwar Singh. During investigation, the site plan Ex.P-6 was prepared, blood stained cloths viz. 'baniyan' and one 'dhoti' was seized vide memo Ex.P/4; a 'Farsi' was recovered vide memo Ex.P/8 at the instance of the accused, witnesses were examined, necessary memos were drawn and after usual investigation the accused persons Bhupendra Singh, Amar Singh and Basti Ram were sent for trial in the court. 3. The accused-appellants Bhupendra Singh and Amar Singh were indicted for the offences under Section 307/34 and 326/34 of IPC and the accused-appellant Basti Ram was charged for the offence under Section 307/34, 326/34 and 323 of IPC who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as eleven witnesses. The accused- appellants in their explanation under Section 313 of Cr.P.C. Claimed innocence. On completion of trial, Amar Singh was acquitted for the charges and the accused Bhupendra Singh and Basti Ram were convicted and sentenced as indicated hereinabove. 3 4. Heard the submissions advanced by the learned counsel for the accused-appellants, learned Public Prosecutor for the State and with their assistance scanned the material available on record. 5. Albeit, the learned counsel for the accused-appellant has contended that no offence under Section 326 of IPC is proved against the appellant Bhupendra Singh yet, he has not questioned his conviction and fairly confined his submissions on the quantum of sentence. The learned counsel has urged that the sentence awarded to the appellant is excessive. The occurrence of this case took place as long as on July 28th, 1985. He has been facing the trauma of litigation for the last 23 years. Hence, it would not serve the ends of justice if he incarcerated after 23 years to serve out the sentence of imprisonment. Keeping all these factors in view, the appellant may be extended the benefit of probation. 6. Per contra, learned Public Prosecutor has submitted that the appellant was charged by the trial court for the offence under Section 307 of IPC and after completion of trial the offence under Section 326 of IPC was found to be proved against the accused-appellant Bhupendra and Section 323 of IPC against the accused-appellant Basti Ram. The court has already taken a lenient view in the case of Basti Ram. So far as Bhupendra 4 Singh is concerned looking to the gravity of the injury, the appellant does not deserve to be released on probation. 7. As per the injury report Ex.P/2, the complainant Kanwar Singh is found to have sustained the following injuries: 1.Incised wound 8x3x3 cm (fresh bleeding with the involved bone cut) which is visible by naked eyes - back of the left shoulder joint and upper margin of the scapular bony region transversely – Grievous sharp. 2.Bruise (Bright Red) 12x2 cm – Right leg middle portion posterio laterally and obliquely – simple blunt. 8. Injury No. 1 was advised for X-ray. After x-ray the injury of left shoulder joint of injured Kanwar Singh has been found to be grievous. 9. Reflecting over the submissions and the evidence of prosecution witnesses, it may be suffice to mention that PW-1 Dr. Om Prakash Gupta, PW-2 Kanwar Singh, PW-3 Lal Chandra, PW-4 Shyoraram, PW-5 Rameshwar, PW-8 Nandram, PW-9 Dr. M.K. Singhal and PW-11 Rajendra Singh, have supported the prosecution story and from their evidence, the offence under Section 326 of IPC is proved against the appellant Bhupendra Singh and the offence under Section 323 of IPC is proved against the accused-appellant Basti Ram. Since the learned counsel has not assailed the conviction of the appellant nor has advanced any submission in this regard, I do not feel apt to analyze and appreciate the evidence of the prosecution witnesses in detail. The finding of the lower 5 court with regard to the conviction of the appellant Bhupendra Singh in the offence under Section 326 of IPC and of Basti Ram in the offence under Section 323 of IPC is cogent, just and proper with which I fully concur and the same does not call for any intervention. 10. Turning to the quantum of sentence, the learned Public Prosecutor has vociferously opposed the prayer of learned counsel for the appellant Bhupendra Singh with regard to extending the benefit of probation to him on the ground that the offence under Section 326 of IPC is punishable with imprisonment for life and the provisions of Section 4(1) of Probation of Offenders Act, 1958 have no application in those offences which are punishable with death or imprisonment for life. Refuting the contentions of the learned Public Prosecutor the learned counsel for the appellant has submitted that in the case of Mauja Singh Vs. State of Punjab (1992) Cr.L.C. 229, the accused was convicted by the trial court in the offence under Section 326 of IPC. Though the High Court did not interfere with the conviction of the accused-appellant but released him on probation of good conduct under Section 4 of Probation of Offenders Act. As such, it is wrong to say that the provision of Section 4 of Probation of Offenders Act have no application in the offence under Section 326 of IPC. Hence in the instant case also the same benefit of probation can be extended to the appellant Bhupendra Singh. 6 11. In the case of Ved Prakash vs. State of Haryana AIR 1981 SC, 643, the Hon'ble Apex Court has held that “sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. Even if Section 360, of Cr.P.C. Is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant.” (Emphasis Supplied) 12. In this case, after obtaining the report of Probation Officer the Hon'ble Supreme Court instead of sentencing the appellant, directed to release him under Section 4(1) of the Probation of Offenders Act, 1958. 13. In the case of Jagdev Singh & Anr. Vs. State of Punjab (1973) SCC (Cri) 977, the Hon'ble Apex Court, while discussing the application of the provisions of Section 4 of Probation of Offenders Act in the offences which are punishable with imprisonment for life (under Section 326 of IPC), has held thus: “On the view that we have taken, it is unnecessary to decide whether, on the facts and circumstances of this case, the appellant should be permitted to raise the question of the benefit of the Act for the first time in this Court. No doubt, in special circumstances where the relevant material relating to the circumstances in which an offence is committed is on the record, this Court may justifiably grant such benefit to an appellant while finding him guilty......” (Emphasis Supplied) 14. In the case of Ramesh Dass v. Raghu nath & Ors., the accused appellants were convicted in 7 the offences under Sections 326/149, 325/149, 148, and 323/149 of IPC and sentenced to rigorous imprisonment of 5 years, 2 years and six months and a fine respectively by the trial court but the High Court instead of sentencing them to imprisonment, released on probation of good conduct under Section 360 of Cr.P.C. The question arose before the Hon'ble Supreme Court that as to whether the provisions of Section 4 of Probation of Offenders Act were applicable in the offence under Section 326 of IPC which is punishable with imprisonment for life? 15. The Hon'ble Supreme Court referred the case of Jagdev Singh & Anr. Vs. State of Punjab and held that the provisions of Section 360 of Cr.P.C. had no application since Section 326 of IPC, the said offence carries life imprisonment. Further, Section 360(1) of Cr.P.C. itself provides that if for any offence, life sentence is provided for, Section 360 of the Code would have no application. But the Hon'ble Supreme Court further held that “In any event, that question is academic”. The Hon'ble Apex Court in Para-6 of their judgment observed that the scope of Section 4 of Probation of Offenders Act is much wider than the scope of Section 360 of Cr.P.C. The provisions of Probation of Offenders Act applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life and remitted back the case to concerned High Court to decide it afresh in accordance with law. But in 8 the case of Jagdev Singh & Anr. the Hon'ble Apex Court has unequivocally observed that in special circumstances where the relevant material relating to the circumstances in which an offence is committed is on the record, the Court may justifiably grant such benefit to the accused- appellant while finding him guilty. 16. There being a provision of punishment with imprisonment for life in the offence under Section 326 of IPC the accused can be sentenced to imprisonment of either description for a term which may extend to ten years together with fine also. Thus, sentencing an accused person depends on the gravity of injury, number of injuries, injured part of the body, age of the accused, his antecedents and other extraneous factors. 17. In the case of State of Karnataka vs. Gurunath and others, 2000 Cr.L.J. 1192, the accused was facing the trauma of criminal proceedings for 23 years in the offence under Section 326 of IPC and was not involved in any other case. The Court imposed a lenient sentence of one day till rising the court and a fine of Rs. 50 and held that it was reasonable punishment. 18. Similarly, in the case of Chellappa vs. State 2000 Cr.L.J., 1276, the High Court of Madras modified the sentence of two years imprisonment and fine of Rs. 500 only to a fine of Rs. 25,000/- in the offence under Section 326 of IPC and held 9 the same to be proper. 19. In Mauja Singh Vs. State of Punjab (1992) Cr.L.C. 229, the Court gave the appellant the benefit of Probation of Offenders Act in the offence under Section 326 of IPC. 20. If an injured sustained a grievous injury caused by a sharp edged weapon on his little finger, I am afraid that he should be sentenced to imprisonment and fine. In such a case, I am of the opinion that it would meet the ends of justice if after a long trial he is extended the benefit of probation under the provisions of Probation of Offenders Act, 1958. 21. In the instant appeal, the occurrence took place long back on July 28th, 1985. The appellant Bhupendra Singh has been facing the trauma of criminal proceedings for the last 23 years. The age of the appellant Bhupendra Singh was recorded 32 years in his arrest memo Ex.P/13 by the Investigating Officer on August 4th, 1985. Today he must have turned grey and attained the age of 55 years. No previous conviction has been found to be proved against him and he has also not been found to be involved in any other criminal act thereafter. His antecedents have no blemish. The injured sustained only one grievous injury on the shoulder caused by sharp edged weapon which is also not on the vital part of the body. Hence, keeping in view all these circumstances in mind, 10 which are available on record, I deem it apt to release the appellant Bhupendra Singh on probation. 22. For these reasons the criminal appeal filed by the accused-appellants Bhupendra Singh and Basti Ram is partly allowed. The conviction of the accused-appellant Bhupendra Singh in the offence under Section 326 of IPC and of the accused-appellant Basti Ram in the offence under Section 323 of IPC is maintained. 23. The accused-appellant Basti Ram has already been released on probation of good conduct under Section 4 of Probation of Offenders Act vide impugned judgment dated July 31, 1987. However, ruminating over the submissions advanced by the learned counsel for the appellants as also the fact that the appeal has been pending since August 1987 and occurrence of this case took place on 28th July 1985, I do not feel inclined, after 23 years of the occurrence, to send the appellant Bhupendra Singh to jail to serve out the sentence. Instead, I am of the opinion that the ends of justice shall be meted out if the accused-appellant Bhupendra Singh is extended the benefit of probation at this juncture. 24. It is therefore, ordered that the accused-appellant Bhupendra Singh be released on probation under Section 4 of Probation of Offenders Act, 1958 on his entering into a 11 personal bond in the sum of Rs. 20,000/- together with two sureties each of Rs. 10,000/- for two years to the satisfaction of the Additional Sessions Judge, Kishangarhbas, District Alwar, with the stipulation that he shall appear and receive sentence when called upon during the probation period and meantime, keep the peace and be of good behaviour. (MAHESH BHAGWATI), J. Mak/- 2