Crl.R. No.877 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: Crl.R. No.877 of 2002 DATE OF DECISION: May 27, 2009 ASHOK KUMAR @ PAPPU ...PETITIONER VERSUS THE STATE OF HARYANA ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. PRESENT: MR. RAHUL VATS, ADVOCATE FOR THE PETITIONER. MR. GAGANDEEP SINGH WASU, DAG, HARYANA. ASHUTOSH MOHUNTA, J. The petitioner has filed this revision against the judgement dated 26.10.1999, passed by the Chief Judicial Magistrate, Hisar vide which he was convicted under Sections 323, 325, 326 IPC and was sentenced as under:- “Under Section 326 IPC 4 years R.I. and a fine of Rs.500/- in default of payment of fine further R.I. for 15 days. Under Section 325 IPC 2 years R.I. and a fine of Rs.200/- in default of payment of fine further R.I. for 15 days. Under Section 323 IPC 6 months rigorous imprisonment” The appeal filed by the petitioner has also been dismissed by the Addl. Sessions Judge, Hisar vide judgement dated 16.1.2002, and the conviction and sentence as awarded by the Chief Judicial Magistrate, Hisar has been upheld. Crl.R. No.877 of 2002 -2- The prosecution case in brief is that on 16.6.1992, at about 3.00 p.m. the complainant Yashpal alongwith his friend Mohan Singh were going to their shop in Hisar. When the complainant reached near Guru Nanak High School, Hisar two persons stopped him and shook hands with him. The complainant told them that he could not recognize them. At that point one of the persons who was about 26 years of age gave a lathi blow on the head of Yashpal from behind whereas the other person who was around 22/23 years of age dealt a knife blow towards the left side of the back of the complainant and gave another knife blow on the left arm of the complainant. Thereafter the person who was having a lathi in his hand gave several blows on the left leg of the complainant. The complainant raised alarm which attracted Lalit Kumar, his maternal uncle and on seeing him both the accused persons ran away. The complainant was immediately taken to the hospital where he was medico-legally examined by Dr. R.J. Bishnoi. On receiving a ruqa from the hospital, ASI Ajit Singh recorded the statement of the complainant in the hospital and sent the same to the Police Station. A formal FIR Ex.PW1/A was registered by Ved Ram SI PW-1. During investigation accused Dungar suffered a disclosure statement wherein he stated that he and accused Ashok Kumar (the present petitioner) had caused injuries to Yashpal by the lathi and that the same can be recovered from a place near T.B. Hospital, Hisar. On his statement, the lathi was recovered. Thereafter, the petitioner was also arrested. After completion of investigation, both the accused were charged under Sections 323, 325, 326 IPC read with Section 34 IPC to which they did not plead guilty and claimed trial. To prove its case the prosecution examined PW1 Ved Ram SI, Crl.R. No.877 of 2002 -3- PW-2 Dr. Arun Gupta, PW3 Dr. R.J. Bishnoi, PW4 Surjit Singh Constable, PW5 Ajit Singh ASI, PW6 complainant Yashpal, PW7 Naresh Kumar Constable, PW8 ASI Hari Ram and after that the evidence was closed by court order on 21.9.1999. The complainant Yashpal was examined by Dr. R.J. Bishnoi PW-3 who found the following injuries on his person:- “1. A lacerated wound on left posterior parietal, size 1” x 2” longitudinal placed bone deep. Clotted blood was present. X-ray skull was advised. 2. An incised wound of size 0.5” x 0.3” on lateral aspect of lower 1/3 of let arm. A similar would medial size of arm, defuse swelling all over lower 1/3 of arm. Fresh bleeding was present. X-ray was advised. 3. An incised would of size 0.5” x 0.2” in lower 1/3 of left side of chest. X-ray chest was advised. 4. An incised wound circular in shape of 0.2” in dismeter, at the junction of upper 1/3 and lower 2/3 of the leg. Fresh bleeding was present. X-ray was advised on left leg. 5. Painful movement with crepitus at left knee joint. X-ray left knee was advised. All the injuries were kept under observation. Probable duration was within 6 house. Injuries No.1 and 5 were stated to have been caused by blunt weapon whereas, injuries No.2, 3 and 4 were caused by the sharp edged weapon. The complainant was radiologically examined by Dr. Arun Gupta PW2 on 17.6.1992, and found fracture of left tibia on left leg. Crl.R. No.877 of 2002 -4- Constable Dilbagh Singh deposed that on 22.7.1992, he was posted in P.S. City Hisar. On 22.7.1992, the accused Ashok Kumar made a disclosure statement that on the intervening night of 6/7.7.1992, at about 11.00 p.m. he alongwith Dungar, Vijay Kumar, Indraj, Joginder, Subhash and Anil had broken the window panes of a Maruti Car and had snatched Rs.400/-. He further deposed that Ashok Kumar had also disclosed that on 16.6.1992, he had caused injuries to a person by a knife near Guru Nanak High School and that the knife was concealed at a particular place and he can get the same recovered. On his disclosure statement Ex.PW1/A, the knife was recovered and taken into police custody. Apart from the depositions of Dr. Arun Gupta PW2 and Dr. R.J. Bishnoi PW3, the complainant Yashpal appeared as PW-6 and narrated the entire incident as mentioned in the FIR. It was stated by him that on 16.6.1992, at about 3/3.30 p.m. when he alongwith his friend Mohan Singh were going to their shop and when they reached near Guru Nanak High School, Hisar two persons met him who first of all shook hands with him and on stating that he did not recognize them, one person gave lathi blow from behind whereas the other person gave a knife blow. He further stated that he had no enmity with them and he knew the name of accused Dungar. He further deposed that accused Dungar had caused injuries to him with a lathi whereas, the other accused Ashok had given knife blows to him. On the basis of statement of the complainant, Yashpal which was corroborated by the medical evidence and the evidence of the official witnesses, the trial Court convicted the accused under Section 323, 325 and 326 IPC and sentenced them in the manner as described in the opening paragraph. The appeal filed by the petitioner was also dismissed. Crl.R. No.877 of 2002 -5- Counsel for the petitioner has contended that Lalit Kumar who was the eye witness of the entire occurrence has not been examined by the prosecution. It has further been contended that the complainant had initially stated that he did not know any of the accused whereas, in the witness box he had stated that he knew accused Dungar earlier also and hence the statement of the complainant cannot be relied upon to convict the accused. The occurrence took place on 16.6.1992, whereas the statement of complainant was recorded on 19.3.1997. After more than 5 years there can be a few contradictions in the statement of a witness. But the fact remains that the complainant had no pervious enmity with either of the two accused, namely, Dungar and Ashok Kumar. There was no reason to falsely implicate them. The complainant has given a detailed account of the manner in which Dungar had given first blow with a lathi on his head and legs and thereafter he had been given two knife blows by the accused Ashok Kumar. The injuries on the person of the complainant are corroborated by the medical evidence. As a result of numerous injuries caused to the complainant by the accused he suffered fracture of left tibia of the left leg. Moreover, the weapons of offence, i.e. lathi and knife were got recovered on the basis of the disclosure statements made by the accused. Thus, even if Lalit Kumar has not been examined by the prosecution, still it would not prove fatal to the case of the prosecution, as statement of complainant Yashpal is reliable and trustworthy and hence I am of the considered opinion that the conviction of the petitioner under Section 323, 325, 326 IPC is just and fair and the same is upheld. It was next contended by the counsel for the petitioner that the occurrence took place on 16.6.1992, and as more than 16 years have elapsed Crl.R. No.877 of 2002 -6- since the date of incident, therefore, the petitioner be released on probation. Counsel for the petitioner has placed reliance in the case of State of Punjab vs. Nasib Singh, reported as 2003(3) RCR (Criminal) 304 in which the accused inflicted an injury with a sword, which had caused fracture of the leg bone; he was released on probation because as per the medical evidence the injury was not likely to cause death. Learned counsel submits that in the present case also the injury caused by the accused was not likely to cause death of the complainant and hence he be released on probation. Counsel for the petitioner has also placed reliance in the case of Mohan Singh vs. State of Punjab, reported as 2006(1) RCR (Crl.) 872 wherein the accused was convicted under Section 326 IPC and was ordered to be released on probation as the incident was 20 years old. Reliance was also placed on Gurmail Singh and others vs. State of Punjab, reported as 2003(3) RCR (Crl.) 196, wherein the accused was released on probation as the occurrence was 16 years old and the accused did not misuse the concession of bail. A perusal of Nasib Singh's case (supra) shows that the accused had been released on probation by the Court of Sessions. The State of Punjab had filed an appeal in the High Court. In a criminal case where benefit to the accused has already been given by the lower Court then the parameters with regard to enhancement of sentence are entirely different from a case where the accused has been held guilty and has been ordered to be sentenced. Thus, the facts of Nasib Singh's case (supra) are not applicable to the facts of the present case. The reliance of Mohan Singh's case (supra) is also misplaced as in that case two of the four petitioners were women and the occurrence had taken place on account of a trivial Crl.R. No.877 of 2002 -7- issue. Apart from the above, the petitioners did not have any track record of indulging into criminal activities. Whereas in the present case both the accused had a past criminal record also and one of the accused Dungar was declared as Proclaimed Offender and has not been traced out till date. Hence the ratio of Mohan Singh's case (supra) is also not applicable to the facts of the present case. For the same reasons the ratio of Gurmail Singh's case (supra) is also not applicable to the facts of the present case. After going through the facts of the present case I find that the accused had caused grievous injuries with a knife to the complainant on his back and on his arm without any reason. The complainant had merely stated that he did not know the accused which resulted in both the accused causing injuries to him. The entire incident of causing injuries was a mindless act. The accused had neither any previous enmity with the complainant nor the complainant had in any manner instigated them and therefore, such like behaviour on part of the accused does not entitle him to the benefit of Probation of Offenders Act. Moreover, a perusal of both the judgements of the Courts below, shows that the accused Ashok Kumar on earlier occasions also had broken window panes of a Maruti car and snatched Rs.400/-. Thus, it shows that his past record was also not clean and that he was not a first offender. He had been committing crime on previous occasions also. In view of the above, the prayer for release of the petitioner on probation is rejected. The Courts cannot permit the criminal justice system to degenerate into a farce. The nature of offence and the manner in which it has been committed and the injuries inflicted on the injured have to be taken into consideration by the Courts while considering the reduction of sentence Crl.R. No.877 of 2002 -8- or while releasing the accused on probation. Merely because it has taken a large number of years to decide the appeal or revision of an accused would itself not be a sufficient ground to reduce the sentence or to release the accused on probation. The Courts cannot show sympathy or leniency to an accused, specially, in a case where the injured has been caused grievous injuries without there being any provocation and without even knowing the perpetrator of the crime. In the present case the complainant has been grievously injured without any rhyme or reason by the accused. There was no act on part of the complainant which could provoke the accused in causing him grievous injuries. The act of the accused was a sheer hooliganism. Thus, the plea of the counsel for the petitioner to release the petitioner on probation cannot be accepted. Counsel for the petitioner has lastly contended that as the accused has already suffered a long and protracted trial and has also remained for a considerable period in jail, therefore, the sentence of the accused be reduced. After hearing the counsel for the petitioner, I am of the considered opinion that as the proceedings in this case have remained pending for more than 16 years, either at the trial stage or in appeal and revision, therefore, while upholding the conviction of the petitioner under Section 323, 325, 326 IPC, I reduce the sentence of the petitioner from R.I. for 4 years under Section 326 IPC to R.I. for 3 years. The fine as imposed by both the Courts below alongwith default clause shall remain as it is. Resultantly, with the aforementioned modification in the order of sentence, the bail bonds of the petitioner who is already on bail are Crl.R. No.877 of 2002 -9- cancelled and it is ordered that he be taken in custody forthwith to serve out the remaining portion of his sentence. May 27, 2009 (ASHUTOSH MOHUNTA) Gulati JUDGE