Criminal Revision No.2082 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.2082 of 2003 Date of decision 27.4.2011. Karamjeet Singh ...... Petitioner. versus The State of Haryana and another ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Bipan Ghai, Senior Advocate with Mr. Sandeep Gehlawat, Advocate for the petitioner. Ms. Priyanka Dalal, Assistant Advocate General, Haryana. Mr. Vivek Suri, Advocate for the respondent No.2. K.C.PURI, J. Karamjeet Singh petitioner has directed the present revision petition against the judgment dated 1.10.2003 passed by learned Additional Sessions Judge, Fatehabad vide which the appeal preferred by the petitioner-accused against the judgment and order dated 8.2.2000 passed by learned Sub Divisional Judicial Magistrate, Fatehabad stood dismissed Criminal Revision No.2082 of 2003 2 and directed the accused-petitioner to undergo imprisonment as under :- i) Rigorous imprisonment for a period of two years and fine of `.2000/- under Section 423 IPC. ii)Rigorous imprisonment for a period of two years and fine of `.2000/- under Section 465 IPC. iii)Rigorous imprisonment for a period of two years and fine of `.2000/- under Section 471 IPC. All the sentences were, however, ordered to run concurrently. The prosecution story when put in brief is that one Balwant Singh, father of Karamjeet Singh owned land in village Aherawan and Ratia, District Hisar, now Fatehabad and he died after five years of his marriage with the complainant, who was his second wife. Accordingly the estate of Balwant Singh was inherited by complainant Kaushalya Devi, his second wife alongwith his son Karamjeet and daughter Amrit Kaur, his previous wife in equal share. However, Karamjeet Singh in conspiracy with Teja Singh, Lamberdar of the village Aherawan (since deceased) and other accused Makiyat Singh lodged report No.45 dated 6.10.1979 with the Patwari Halka to the effect that complainant Kaushalya Devi had died. On the basis of that report, a mutation of inheritance of the share of Kaushalya Devi bearing No. 497 was entered and sanctioned in favour of Karamjeet Singh on 18.10.1979. On the strength of that mutation, Karamjeet Singh sold the land of the share of complainant Kaushalya Devi, which was owned and possessed by her vide sale deed dated 13.11.1979 in favour of Malkiyat Singh despite the fact that both of them were knowing that the complainant Criminal Revision No.2082 of 2003 3 Kaushalya Devi is very much alive at that time. The complainant further alleged that even Karamjeet in conspiracy with his wife Kasturi Devi executed another sale deed in favour of his wife by impersonation and fraud by producing some other lady in place of complainant Kaushalya Devi. As per the complainant, when she came to know about this sale deed, she filed a civil suit No. 226 of 1983 titled as Smt. Kaushalya Devi vs. Kasturi Devi and the same was decreed and its appeal was also dismissed upto High Court. As per the complainant, she came to know that the suit land of mutation No. 497 has been mutated in favour of complainant showing her death and he has sold the land to Malkiyat Singh. On the above allegations complainant Kaushalya Devi filed a complaint bearing No. 372-1 of 24.4.1989 in the Court of Illaqua Magistrate, Fatehabad against the accused and Malkiyat Singh (since acquitted) for commission of offence punishable under Section 420, 467, 471, 467, 120-B and 466 of the IPC. Learned Area Magistrate after examination of preliminary evidence of the complainant, summoned the appellants and Malkiyat Singh to face trial for commission of offence punishable under Sections 418, 466, 468 and 471 IPC vide order dated 10.5.1992. Thereafter the evidence of the complainant was recorded after the presence of the appellants before the Area Magistrate. The complainant in order to prove its case examined Naresh Kumar Patwari as PW-1, Amar Lal as PW-2, Mange Ram as PW-3, Chattar Singh as PW-4 and Mahabir Singh as PW-6. The complainant Kaushalya Devi herself appeared as PW-5 to prove her allegations. Criminal Revision No.2082 of 2003 4 On the basis of preliminary evidence, both the appellants were charge sheeted for offence punishable u/Ss 418, 468, 471 IPC read with Section 34 IPC to which the appellants pleaded not guilty and claimed trial. However, thereafter the appellants challenged their charge sheet before the Sessions Judge, Hisar and in Cr. Revision No. 10 of 1995 titled as Karamjeet vs. Kaushalya Devi alongwith Revision filed by Malkiyat Singh. Vide judgment dated 9.10.1998, the revision was dismissed. Prior to that appellants also preferred a petition under Section 482 Cr.P.C. before the Court, but the same was dismissed vide order dated 9.12.1992. Appellant and Malkiyat Singh faced trial in which they cross examined the witnesses of the complainant brought in pre-charge evidence. In addition to that the complainant further examined Ramesh Kumar, clerk of the office of Deputy Commissioner as PW-7 and Om Parkash petition writer as PW-8. The accused denied all the allegations in their statements recorded u/s 313 Cr.P.C. The accused examined Gopi Chand as DW-1. The learned trial Court after hearing the learned counsel for the parties convicted and sentenced the accused/petitioner vide judgment and order dated 8.2.2000, as aforesaid. Feeling dis-satisfied with the aforesaid judgment and order, the petitioner-accused has preferred the First Appeal before the learned Additional Sessions Judge. The learned Additional Sessions Judge, also dismissed the appeal vide judgment dated 1.10.2003. Criminal Revision No.2082 of 2003 5 Still feeling dissatisfied with both the judgments, the petitioner has preferred the present revision petition. I have heard learned counsel for the appellant, learned Assistant Advocate General for the State of Haryana and learned counsel for the complainant and have also carefully perused the case file. Learned counsel for the revisionist has submitted that before the First Appellate Court, the appellant had not challenged the conviction recorded by the trial Court but had prayed for reduction of sentence. Learned counsel for the revisionist has submitted that revisionist is facing trial since 1989. He has offered to pay `.3,00,000/- to the complainant. The revisionist is not a previous convict. So, the trial Court should have allowed him the concession of probation as the sentence is less than seven years. Learned counsel for the revisionist has relied upon authorities Wazir Singh vs. The State of Punjab 1982 (2) C L R. 347 and Bishnu Deo Shaw vs. State of West Bengal 1979 CAR 385 (SC). The prayer has been vehemently opposed by the learned counsel for the complainant. It is contended that value of the property is in crores and the revisionist is offering only `.3,00,000/-. She has been deprived of her legal right to have the property for the last so many years. The revisionist dishonestly got the mutation of inheritance of complainant by showing her dead, although she is still alive. Not only this, the property has been later on sold by impersonating her regarding which the Regular Second Appeal is still pending. In fact, the revisionist has not suffered Criminal Revision No.2082 of 2003 6 anything but the complainant has suffered a loss as she has been deprived of her legal right to the property for the last so many years. So, the prayer has been made for dismissal of revision. I have carefully considered the submissions made by both the sides and have gone through the records of the case. So far as the conviction recorded by the trial Court is concerned that has not been challenged even before the First Appellate Court. The only prayer made in the present revision petition is to take a lenient view and to allow him the concession of probation under the Probation of Offenders Act, 1958. Whether the accused is entitled to the benefit of probation or is entitled to reduction in sentence, depends upon the circumstances of each case. No hard and fast rule can be ordered in this regard. It is not disputed that complainant was owner of 3 kanals 11 marlas of land and mutation in her name was attested. Revisionist made report No.45 dated 6.10.1979 to the effect that Kaushalya Devi, has died and revisionist being the only son is entitled to inherit the property. On the basis of said report, mutation No.497 was entered in the name of Karamjeet Singh revisionist. On the strength of the said mutation, Karamjeet Singh sold the aforesaid land in favour of Malkiat Singh. Regular Second Appeal No.2492 of 2001 is still pending, which has been decided vide separate judgment in that case. The sale deed No.3393 dated 13.11.1979 was executed by revisionist in favour of Makiat Singh. The matter did not end here, the revisionist further fraudulently without the knowledge and consent of the complainant executed sale deed dated 3.11.1982 in favour of his wife Kasturi Devi. So, Criminal Revision No.2082 of 2003 7 the intention of the revisionist from the very beginning was to deprive Kaushalya Devi in respect of her legal right. A person, who can go to that extent, cannot have the benefit of probation. The value of the share of the person who was defrauded in Wazir Singh's case (supra) was only `.800/-. The amount of `.3,00,000/- to the complainant in respect of property, which is stated to be now in crores of rupees, cannot be held to be bona fide offer. The faith of the public in judiciary would erode in case concession of probation is granted to the person who wanted to deprive his own relative of the property. The complainant is suffering till today in respect of the acts of the revisionist. So far as the authority Bishnu Deo Shaw's case (supra) is concerned that relates to offence under Section 302 IPC and it is mentioned that special reason has to be given for awarding the death sentence. Both the Courts below have dealt in the aspect whether the revisionist is entitled for probation and both were unanimous in giving finding that revisionist is not entitled to concession of probation. I see no reason to differ with the concurrent finding recorded by both the Courts below. The petitioner is not entitled to concession of probation or reduction in sentence. Consequently, the revision petition is without any merit and the same stands dismissed. The petitioner-accused, who is on bail, shall be taken into custody to undergo the remaining part of his sentence. Criminal Revision No.2082 of 2003 8 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE April 27, 2011 sv