IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 143 of 2003 Date of Decision: 20th July, 2010 __________________________________________________________ Sunil Dutt & others …Appellants. Versus State of H.P. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No __________________________________________________________ For the Petitioners: Shri Bhuvnesh Sharma, Advocate For the Respondent: Ms. Ruma Kaushik, Addl. Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The report of the Probation Officer has been received. 2. The petitioners have been convicted for offences under Sections 452, 323 and 506 read with Section 34 of the Indian Penal Code. 3. The prosecution case, in brief, is that on 21st December, 1998, First Information Report Ext.PW5/A was registered in Police Station, Barsar by Shri Paras Ram alleging that he is resident of village Jajri and serving in the Police Department. He was on leave. He has constructed a cow shed, latrine and Verandaha in his own land. On 19.12.1998, a pillar and wall were raised by him for construction of the Verandaha. On 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 20.12.1998, around 9.30/10 P.M. Smt. Kalan Devi, mother of the complainant, and wife Smt. Savitri Devi had gone to the cow shed to feed the cattle. In the meantime, the accused came to the spot and started abusing the complainant’s wife and mother. When the complainant asked them to stop, Sunil Dutt who was armed with danda gave a blow to Smt. Kalan Devi. When the complainant’s wife tried to rescue her mother in law she was also beating up by the accused. On hearing their cries, the complainant rushed to the spot. He was also beaten up by the accused. The prosecution case further is that he escaped from the clutches of the accused with great difficulty and went inside his house. But the accused then forcibly entered his room and again beat him up. He raised an alarm, on which, Smt. Bimla Devi, Smt. Roshani Devi and other villagers reached the spot and rescued him. After investigation, the accused- petitioners were charged for the offences as alleged. On the entirety of the evidence, the learned trial Court found the evidence of prosecution to be cogent and clear which established the offences and the accused were accordingly sentenced to undergo imprisonment for one year each and pay fine of Rs. 1000/- each under Section 452 of the Indian Penal Code, rigorous imprisonment for six months and fine of Rs. 500/- under Section 323 of the Indian Penal Code and rigorous imprisonment for one year and fine of Rs. 1000/- under section 506 (II) of the Indian Penal Code. When the sentence was pronounced it was urged on behalf of the accused that benefit of probation be given to them as accused Sunil Dutt was a married man aged about 50 years and father of four children, Sohan Lal is aged about 66 years and father of three children, petitioner Om Parkash was aged about 35 years and he has three children and petitioner Rama Shankar was an unmarried young boy of 23 years. The learned Court 3 ignored this fact while sentencing the petitioners. Sentences have been affirmed by the learned Sessions Judge. 4. On the question of occurrence after having thoroughly scrutinized the evidence of the witnesses i.e. PW1 Savitri Devi, PW2 Bimla Devi and PW3 Nek Ram, PW6 Dr. H.R. Kalai, PW8 Kalan Devi and PW10 Rajnish Lal and also the medical evidence, I do not find any infirmity in their statements as they clearly establish the course and manner in which the offence occurred. There is nothing in the cross examination of these witnesses to show and establish that the offences for which the petitioners have been charged are not established on record of the case. 5. Turning to the question of sentencing, I find that trial Court has taken a harsh view. Even the appellate Court has not considered the age of petitioners. Sunil Dutt is aged about 50 years, Sohan Lal is aged 66 years, Om Parkash is aged about 35 years and Rama Shankar is aged 23 years. It is this factor which is to be considered as to whether the petitioners would be entitled to the benefit of Probation of Offenders Act. I find from the record that there is no history of a criminal record against the petitioners. Sending them to prison now would not serve any purpose as petitioners namely Sohan Lal and Sunil Dutt are over 60 years and petitioners Om Parkash and Rama Shankar are also above 40 years. I do not find any criminal propensity on the part of the petitioners. Accordingly, I called for the report of Probation Officer. 6. Turning to the report of Sunil Dutt, the Probration Officer reports that he is living as an agriculturist and has a small shop. He lives at home with his wife and four children. Out of them, two are serving in the private sector and one is serving in the Indian Army. His daughter is a 4 student of plus two. It is a nuclear family. No report has been made about any misbehavior or social aggressive actions by him. It is observed that his behaviour in his village is very cordial with all his fellow villagers. 7. Coming to the report of Sohan Lal, who is about 70 years of age. He is working as an agriculturist and there is no pending case against him. He has a good moral character. The Probation Officer also reports that the incident of this case relates to a domestic dispute. He says that this incident took place because of some misunderstanding between the parties. He has a son of 32 years old who works as a driver, another son is 33 years who is working in a private firm and his third son is working as an electrician. 8. Petitioner Om Parkash is presently working in a private Company at Chandigarh. Even his neighbours have supported his good character and no criminal propensity had been disclosed. The report regarding petitioner Rama Shankar is that he is working as driver and his character has also been certified to be as a good and cordial behaviour. 9. In the totality of the facts and circumstances of the case, considering the facts that any of petitioners does not have any criminal propensity, all of them are living a happy settled life, they have cordial and good relations with all the members of Society and the report of the Probation Officer which certifies that they are fit to be released on probation, I deem it fit and proper that all petitioners herein be released on probation and are directed to furnish personal bonds in the sum of Rs. 10,000/- each with one surety each in the like amount each to the satisfaction of Additional Chief Judicial Magistrate, Barsar or in his absence, the Judicial Magistrate, Barsar undertaking to keep peace and good behaviour for a period of two years from the date of execution of 5 bonds, not to involve in any criminal/illegal activity. They will also undertake that in case of breach of the conditions, they will appear before this Court to receive and undergo the sentence imposed upon them. The bonds shall be executed by the petitioners on or before 30th November, 2010. The Probation Officer, Hamirpur is further directed to supervise each and everyone of the petitioners and in case of breach of the conditions to approach this Court immediately. Needless to say that the petitioner will be entitled to the benefit under Section 12 of the Probation of Offenders Act. Petition stands disposed of. July 20, 2010 (Dev Darshan Sud) (ms) Judge