Criminal Appeal No.710-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.710-SB of 1999 Date of Decision:14.01.2010 Joginder .....Appellant Versus State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. Argued By: Mr.Deep Inder Brar, Advocate, for the appellant. Mr.G.S.Chahal, Additional Advocate General, Haryana, for the respondent. **** MEHINDER SINGH SULLAR, J.(Oral) Assailing the impugned judgment of conviction and order of sentence dated 19.07.1999, Joginder Singh, convict-appellant(hereinafter to be referred as “the appellant”) has directed the present appeal vide which the trial Court, while acquitting his main co-accused under Sections 302/325/34 IPC, convicted and sentenced him to undergo rigorous imprisonment for a period of two years, to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months for the commission of offence punishable under Section 325 IPC. Out of the amount of fine of Rs.5,000/-, a sum of Rs.4,000/- was ordered to be paid to PW4-Cheti who had received grievous injury at the hands of the appellant. 2. The facts barely needed, relevant for disposal of the present appeal and emanating from the record, unfolded during the trial, are that in the wake of medical ruqa(Ex.PB/2), intimating regarding the arrival of the dead body of Mohan Lal, PW5, SI Bhagat Singh reached General Hospital, Palwal. PW3-Bir Pal-complainant met him there, who made his statement Criminal Appeal No.710-SB of 1999 2 (Ex.PF) at about 11/11.30 P.M. in which he has stated that on that day at about 8.45 P.M., Bijjan (acquitted) accused was firing crackers in the gate of the house of Ranjit which was resented by his brother PW4, Cheti. Some altercation took place between Bijjan-accused and Cheti which attracted the arrival of appellant and other(acquitted) accused Rang Lal, Billu and Mahesh at the spot. According to the prosecution, appellant and (acquitted) accused Rang Lal were armed with 'lathis' and rest of the accused were armed with 'jailis'. On hearing the noise, PW3, his brother Mohan Lal and nephew Harkesh also reached there. Mohan Lal advised the accused Bijjan and PW4, Cheti that they should desist from fighting. It was claimed that when Rang Lal was expressing his resentment against the uncalled interference by Mohan Lal, then the appellant-Joginder, accused-Billu and Mahesh came forward and exhorted to teach him a lesson. 3. The case of the prosecution further proceeds that thereafter, accused-Rang Lal inflicted a 'lathi' blow on the back of Mohan Lal and when PW4 attempted to save him, then, the appellant gave him a 'lathi' blow which fell on his(PW4) right wrist. Thereafter, accused-Bijjan fired a pistol shot which hit Mohan Lal on the left side of his chest, whereupon, he fell on the ground after receipt of injury. All the five assailants, namely, Rang Lal, Bijjan, Mahesh, Billu and the appellant-Joginder fled away from the place of occurrence with their respective weapons. Mohan Lal was removed to General Hospital, Palwal, in an injured condition but as luck would have, he succumbed to his injury and the doctor declared him dead. 4. Levelling a variety of allegations, in all according to the prosecution version that on 25.10.1995 first of all (acquitted) accused-Rang Lal inflicted a 'lathi' blow on the back of Mohan Lal and then main-accused- Bijjan fired a pistol shot which hit Mohan Lal culminating into his death. The appellant was stated to have inflicted a 'lathi' blow which fell on the Criminal Appeal No.710-SB of 1999 3 right wrist of PW4-Cheti, while the remaining accused raised alarm/lalkaras. On the basis of aforesaid allegations and in the wake of statement (Ex.PF) of PW3, the present case was registered against the appellant and other(acquitted) co-accused vide FIR No.475 dated 26.10.1995 on accusation of having committed offence punishable under Sections 302, 325 read with Section 34 IPC by the police of Police Station Sadar Palwal, in the manner indicated here-in-above. 5. Having completed all the codal formalities, the appellant and his co-accused were charge-sheeted for the commission of offence punishable under Sections 302 and 325 read with Section 34 IPC by the trial Court vide order dated 19.07.1999. As the appellant and other co- accused did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 6. At the very outset, it will not be out of place to mention here that as the presence of main accused-Bijjan could not be secured, therefore, he was declared proclaimed offender. However, the prosecution in order to substantiate the charges brought against the appellant and other co-accused, examined PW1-Dr.B.S.Sharma, PW2-Dr.Surjit Mehra, PW3-complainant-Bir Pal, PW4-injured(Cheti), PW5-SI Bhagat Singh, PW6-MHC Ram Kumar and PW7-Constable Ashok Kumar in oral evidence. The prosecution has also tendered into evidence Ex.PA- application, Ex.PA/1-medico legal report, Ex.PD-affidavit of Constable Jai Singh, Ex. PT, PU and PV-FSL reports, in the documentary evidence. 7. The trial Court, after taking into consideration the evidence on record, acquitted all the accused, namely, Rang Lal, Billu and Mahesh under Sections 302/34 IPC but convicted and sentenced the appellant for the commission of offence punishable under Section 325 IPC vide impugned judgment of conviction and order of sentence as described here- in-above. Criminal Appeal No.710-SB of 1999 4 8. The appellant did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 9. It is not a matter of dispute that the State did not file any appeal against acquittal under Section 302/34 IPC of main accused, Rang Lal, Billu and Mahesh. Meaning thereby, the finding of the trial Court with regard to acquittal of main accused Rang Lal, Billu and Mahesh had attained finality. In that eventuality, only role attributed to the appellant that he caused grievous injuries with 'lathi' to PW4(Cheti) remains to be examined in this appeal by this Court. 10. Above being the position on record, the first to note the testimony of PW1, who medico legally examined Cheti (PW4) vide medico legal report (Ex.PA/1), found reddish bruise swelling 2” x 1” over the anterior lateral aspect of right wrist joint. He maintained that the injury was kept under X-Ray examination and was found to have been caused by a blunt weapon within a probable duration of twelve hours. 11. PW2, who radiologically examined Cheti(PW4) on 26.10.1995 and found fracture of styloid process of right ulna of his right wrist vide X- Ray report(Ex.PC) and X-Ray film (Ex.PC/1). 12. PW3-Bir Pal is a complainant in this case who has set the police machinery in motion. Instead of reproducing his entire statement in toto and in order to avoid repetition, suffice it to say that he attempted to corroborate the contents of statement(Ex.PF) which formed the basis of FIR as depicted above. 13. The next to note the testimony of PW4-injured(Cheti) as regards the role attributed to the appellant and determination of the present controversy is concerned. Narrating the sequence of events, PW4, inter alia, maintained on oath that on 25.10.1995, they were present at the spot. Accused Joginder, Billu and Mahesh raised a 'lalkara' and accused Rang Criminal Appeal No.710-SB of 1999 5 Lal inflicted a 'lathi' blow on the back of Mohan Lal. As soon as, he(PW4) tried to save him, in the meantime, appellant gave him a 'lathi' blow on his right wrist. Thereafter, Bijjan fired a shot hitting Mohan Lal's chest on the left side. Hence, PW4 has categorically maintained that the appellant caused him a 'lathi' blow on his right wrist. 14. Sequelly, PW5 arrested the accused Mahesh, Billu, Joginder and Rang Lal on 30.10.1995. These accused were then subjected to interrogation in the presence of PWs Ram Chand and Suran. They made disclosure statements Exhibits PK to PN respectively. In pursuance of these disclosure statements, the accused Mahesh and Billu got recovered 'jailis' from the places pointed out by them in the presence of the same set of witnesses whereas the remaining two accused Joginder and Rang Lal got recovered 'lathis' from the places pointed out by them in their disclosure statements. These 'jailis' and 'lathis' got recovered by these accused were seized vide memos duly prepared by PW5 in this regard. 15. Likewise, PW6 has stated that on 25.10.1995, he had received statement(Ex.PF) of Bir Pal under endorsement(Ex.PF/1) made by PW5 and on the basis of which, he recorded the formal FIR(Ex.PF/2). Similarly, PW7, draftsman, prepared and proved the scaled site plan, Ex. PS. 16. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as there is no merit, therefore, the appeal deserves to be dismissed for the reasons mentioned here-in-below. 17. As is evident from the record, according to the prosecution version, that first of all (acquitted) accused-Rang Lal inflicted a 'lathi' blow on the back of Mohan Lal and accused Billu and Mahesh raised 'lalkaras'. It was claimed that the appellant inflicted a single 'lathi' blow on the right wrist of PW4. Thereafter, main accused-Bijjan fired a pistol shot and Criminal Appeal No.710-SB of 1999 6 committed the murder of Mohan Lal. The presence of main accused-Bijjan could not be secured and he was declared proclaimed offender. Therefore, during the course of trial, the trial Court acquitted all the accused except the appellant who was convicted under Section 325 IPC for having caused simple injury to PW4. 18. Such, thus, being the position, now the short and significant question though important arises for determination in this appeal is whether the charges under Section 325 IPC are proved against the appellant or not? 19. In this respect, the main celebrated arguments of learned counsel for the appellant that the story of the prosecution is highly improbable and there is no cogent evidence on record even to connect the appellant with the indicated crime, are not only devoid of merit but misplaced as well. On the contrary, keeping in view the evidence on record, the submission of learned State Counsel that the case against the appellant is fully proved, has considerable force. There appears to be no improbability in the prosecution version which is most natural as regards the role assigned to the appellant is concerned. 20. Narrating the sequence of events, PW4 (Cheti) has, inter alia, stated that when (acquitted) accused-Rang Lal gave a 'lathi' blow on the back of Mohan Lal, then, he(PW4) tried to save him but the appellant gave him a 'lathi' blow on his right wrist. Sequelly, PW3 is another eye-witness of the occurrence, who has also stated that when PW4 tried to save Mohan Lal, then, the appellant gave 'lathi' blow on his right wrist. It means, PW3 and PW4 have corroborated the prosecution version on all vital counts as regards the role of the appellant is concerned. They gave the consistent version of the story. They were cross-examined at length but nothing substantial material could be elicited in their cross-examination to dislodge their testimony with regard to the role of the appellant. Nothing has been Criminal Appeal No.710-SB of 1999 7 suggested as to why they would falsely implicated the appellant. The evidence of PW3 and PW4 is reliable, cogent and trustworthy. 21. Not only that PW3 and PW4 have fully corroborated the prosecution story against the appellant, their evidence find further corroboration from the medical evidence. PW1, medico legally examined him(PW4) vide medico legal report(Ex.PA/1) and found reddish bruise swelling 2” x 1” over the anterior lateral aspect of right wrist joint. PW1 maintained that the injury was kept under X-Ray examination and was found to have been caused by a blunt weapon within a probable duration of twelve hours. 22. This is not the end of the matter. PW2 radiologically examined PW4 on 26.10.1995 and found fracture of styloid process of right ulna of his right wrist vide X-Ray report(Ex.PC) and X-Ray film (Ex.PC/1). PW5 interrogated the appellant and got recovered 'lathi' in pursuance of his disclosure statement. The recovery of 'lathi' was duly proved by the Investigating Officer. 23. The other argument of learned counsel for the appellant that as PW4 was medico legally examined after two and a half hours, therefore, his presence at the spot was doubtful, again has no force. The mere fact that there is some delay in medico legal examination of PW4 itself is no ground to doubt his presence, particularly when he suffered injury at the hands of the appellant at the time of occurrence. Keeping in view the fact that Mohan Lal succumbed to his injury and the sequence of events narrated here-in-above, this contention pales into insignificance, particularly when the prosecution case is, otherwise, duly proved by ocular, medical and documentary evidence against the appellant. 24. Thus, it would be seen that if the ocular, reliable, natural and trustworthy evidence of PW3 and PW4 coupled with the medical evidence and the recovery of 'lathi' in pursuance of disclosure statement of the Criminal Appeal No.710-SB of 1999 8 appellant are put together, then to me, it stands proved on record that the appellant caused a grievous injury with 'lathi' on the right wrist of PW4 and the trial Court has rightly convicted him in this respect. 25. No other point worth consideration has been urged or pressed by the learned counsel for the parties in this context. 26. Faced with the situation, learned counsel appearing on behalf of the appellant has fairly acknowledged that he will not be in a position to contest the conviction of the appellant any more, in view of the evidence on record. As no other legal infirmity has been pointed out by the learned counsel for the appellant, therefore, the impugned judgment of conviction is hereby maintained. However, learned counsel for the appellant submitted that there are sufficient grounds and the trial Court ought to have been granted the benefit of probation to the appellant but the trial Court neither granted the same benefit nor assigned any cogent reasons in this respect, as envisaged under Sections 360/361 Cr.P.C. 27. In order to substantiate his arguments, learned counsel for the appellant has placed reliance on the judgments of the Hon'ble Apex Court in cases reported as Isher Das Versus The State of Punjab, AIR 1972 SC 1295, Sitaram Paswan and another Versus State of Bihar, AIR 2005 SC 3534 and of this Court in Parkash Versus State of Haryana 1986 (1) Recent Criminal Reports 94 and Sat Parkash and others Versus State of Haryana, 2006(4) Recent Criminal Reports(Criminal) 924. 28. Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, while Section 361 Cr.P.C. posits that where in any case, the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders 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 probation of Offenders Act, has to record Criminal Appeal No.710-SB of 1999 9 special reasons. But, in the instant case, the trial Court did not assign any cogent reasons and just bye-passed the mandatory provisions, on unsustainable grounds in this respect. 29. Moreover, Section 4 of the Probation of Offenders Act, 1958 (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. 30. Although, learned counsel appearing on behalf of the State has neither disputed the factual matrix nor the law laid down in the aforesaid judgments, but he urged that the appellant is not entitled to the benefit of probation even if he has been convicted under Section 325 IPC. 31. It is not a matter of dispute that the crux of the law laid down in the aforesaid judgments is that the non obstante clause contained in Section 4 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. 32. In Sat Parkash's case(supra), this Court has observed as under:- “Coming to the question of sentence, it may be noticed Criminal Appeal No.710-SB of 1999 10 that occurrence had taken place in the year 1993. Both the parties i.e., the accused and the complainant belong to the same village. With the passage of time, the things must have cooled down. The ever hanging sword of conviction and sentence upon the heads of the petitioners must also have yielded result. There is no material available to show that any of the petitioners have ever indulged in any crime during the last thirteen years. None of them is a previous convict. They remained in jail for a considerable period of time. They were taken into custody on 23.07.2004 when their appeal was dismissed by the Additional Sessions Judge. They were, thereafter, ordered to be released on bail on 6.12.2004. Thus, it is clear that they remained in custody after dismissal of their appeal for a period of four months and thirteen days. Over and above the same, Sat Parkash and Satish Kumar remained in jail as under-trials for 29 days each while the case of Raj Kumar, the said period was 21 days. Suresh Kumar petitioner remained in jail as an under- trial for six months and fourteen days. Custody certificates in this regard have been placed on the record. The trial Court, while convicting three co- accused of the petitioners, namely, Pawan Kumar, Ram Saroop and Jai Parkash, released them on probation and found that offence under Section 323 IPC was not a serious offence. In spite of conviction of the present petitioners under Sections 325, 324 and 323 IPC, they do not make themselves disentitled to the grant of Criminal Appeal No.710-SB of 1999 11 benefit of probation. This Court feels that the petitioners deserve to be extended the benefit of probation instead of sending them back to the jail for undergoing the remaining sentences. However, while doing so, the Court may like to direct the petitioners to pay adequate compensation to Hukam Chand complainant”. 33. The ratio of above-mentioned judgments mutatis-mutandis is applicable to the facts of the present case. 34. Having regard to the rival contentions of the learned counsel for the parties, having gone through the facts and circumstances emerging out of the record and after considering the matter deeply, it would be expedient in the interest of justice, if the benefit of probation is granted to the appellant, particularly when adequate compensation can be awarded to PW4, inter alia, on the following grounds:- i) It is not a matter of dispute that the present case was registered against the appellant on 25.10.1995 and he has suffered the agony of protracted trial for the last more than fourteen years. ii) Appellant was convicted only for the commission of offence punishable under Section 325 IPC. iii) Appellant was a young boy of about 28 years of age at the time of alleged offence. iv) Appellant is a first offender and there is no history of his previous conviction. v) The antecedents and credentials of the appellant are such that he has not been found involved in any other case. vi) He has been leading a life of honest peaceful citizen in the locality. Criminal Appeal No.710-SB of 1999 12 vii) He has already undergone about one and a half months, a considerable period of his sentence. viii) Appellant only inflicted one injury that too on wrist (non-vital part) and did not repeat the blow. ix) Injured-PW4(Cheti) would get compensation for his solitary injury. x) The latest trend of penology is reformatory. 35. Above being the state of law and facts and taking into consideration the period of agony of protracted trial, age and antecedents of the appellant, totality of other facts and circumstances emanating from the record, as discussed here-in-above, to me, it would be expedient and justice would be squarely met and sub-served if a lenient view in the matter of sentence is taken against the appellant, inasmuch as, no useful purpose would be served in sending him again to jail to serve out the remaining period of sentence and instead of sending him to prison, he be released on probation in the obtaining circumstances of the case. 36. In the light of aforesaid reasons, conviction of the appellant under Section 325 IPC is hereby maintained. However, he is directed to be released on probation on his furnishing personal bond (within two months) in the sum of Rs.20,000/- 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. In case, he is found to be indulged in illegal activities, the sentence awarded to him by the trial Court shall stand revived. Appellant is further directed to pay a sum of Rs.25,000/- as compensation, which shall be paid to PW4 for the injury caused to him as contemplated under Section 5 of the Act. January 14, 2010 ( Mehinder Singh Sullar) seema Judge Criminal Appeal No.710-SB of 1999 13 `