Crl. Revision No. 396 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revision No. 396 of 2010 Date of decision: 16.02.2010 Surjit Singh s/o Jawahar Singh, r/o village Alampur. ....... Revision petitioner Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. B.S. Sewak, Advocate for the revision-petitioner. **** Sham Sunder, J. This revision-petition, is directed against the judgment dated 21.01.2010, rendered by the Additional Sessions Judge (Adhoc), Fast Track Court, Sangrur, vide which it dismissed the appeal against the judgment of conviction and the order of sentence dated 19.07.2004, rendered by the Court of Judicial Magistrate Ist Class, Sunam, recording conviction and awarding sentence to the accused (now revision- petitioner), for the offences, punishable under Sections 148, 323, 323/149, 325 and 325/149 of the Indian Penal Code to various terms of imprisonment. Crl. Revision No. 396 of 2010 2 2. The facts, in brief, are that on 26.02.2000, Bhura Singh, complainant-cum-injured was present in his house, when Harvinder Singh @ Bhola, Gurtej Singh, Jagmail Singh alias Fauji son of Bant Singh, Bhola Singh and Surjit Singh sons of Bahadur Singh, came there. They abused him and his family members. Thereafter, they went back by threatening the complainant that they will teach him a lesson for cultivating the passage (pahi).Due to fear, the complainant and his family members, stayed inside the house. 3. On 27.02.2000 in the morning, the complainant alongwith his son Raj Singh, was going to give information to Surinder Singh, Member Panchayat of their village, with regard to the incident, referred to above and when they reached near the fertilizer store at about 8.00 AM, Harvinder Singh, armed with gandasi, Bhola Singh son of Jawahar Singh, armed with gandasa,Surjit Singh son of Jawahar Singh, armed with Soti, residents of village Alampur, were standing there. They all encircled Bhura Singh, injured and his son Raj Singh. Bhola Singh, accused raised an exhortation that since they had encircled the injured and his son, they will not allow them to escape. Harvinder Singh gave a gandasa blow, from its reverse side, which hit the back of the head of Raj Singh. Bhola Singh, gave a gandasa blow, from its reverse side, which hit above the Crl. Revision No. 396 of 2010 3 right elbow of Raj Singh. Thereafter, Surjit Singh, gave a soti blow on the back of Raj Singh. Gurtej Singh son of Bant Singh, and Jagmail Singh Fauji son of Bant Singh, who had brought the sticks (soties) with them, also raised exhortation that the complainant and his son Raj Singh, should not be allowed to go unhurt. Gurtej Singh gave a stick (soti) blow on the right ankle and Jagmail Singh @ Fauji, gave a stick (soti) blow on the right hand of Raj Singh. It was further stated that when Bhura Singh, complainant, came forward to rescue his son Raj Singh, Harvinder Singh, gave a gandasa blow, which hit his (Bhura Singh) left arm. Bhola Singh also gave a gandasa blow, from its reverse side, which hit the left knee of Bhura Singh, as a result whereof, he fell down. Thereafter, Surjit Singh gave a stick blow on his left leg. Gurtej Singh gave two stick blows, on his right leg. Bhola Singh gave three gandasa blows on the right arm of Bhura Singh, complainant. Harvinder Singh inflicted two gandasa blows from its reverse side, on the right hand and Jagmail Singh @ Fauji gave a stick blow on the chest of Bhura Singh. He also gave one more stick blow on the back of Bhura Singh. Bhura Singh, complainant, raised alarm 'Killed-Killed', which attracted Surjit Kaur and Jaila at the spot, who also raised alarm 'don't kill don't kill'. On seeing them, all the accused decamped with their respective weapons. After arranging vehicle, Bhura Singh, complainant Crl. Revision No. 396 of 2010 4 and Raj Singh, were got admitted in the hospital, where they were medicolegally examined. 4. The motive behind the occurrence, was that the accused wanted to take forcible possession of the passage (pahi), to which the complainant objected to. A civil suit was also pending in the Civil Court at Sunam. 5. On the basis of the statement of Bhura Singh, complainant-cum-injured, report in the DDR was made. After obtaining the opinion of the doctor , regarding the injuries on the person of Bhura Singh and Raj Singh, First Information Report was registered. The statements of the witnesses were recorded. The accused were arrested. After the completion of investigation, they were challaned. 6. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 148, 325, 325/149, 323, and 323/149 IPC, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 7. The prosecution, in support of its case, examined Bhura Singh, complainant-cum-injured, (PW-1), who deposed in terms of the prosecution version, Raj Singh, injured,(PW-2), Surjit Kaur, an eye witness, (PW-3), Balihar Singh, Assistant Sub Inspector, (PW-4), Investigating Officer, Dr. Suresh Kumar, (PW-5), Dr. Harinder Singh, (PW-6), Dr. Karam Singh, Crl. Revision No. 396 of 2010 5 (PW-7), Deepa Dayal, (PW-8), Nirmal Singh,C-1, (PW-9), and Parmod Kumar, Ahlmad ,(PW-10). Thereafter, the prosecution closed its evidence. 8. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 9. The accused examined Darshan Singh, DW-1, Jaila Singh, DW-2, Mohinder Singh, DW-3, Najar Singh, Head Constable, DW-4, Naresh Kumar, DW-5, Shashi Mohan, Advocate, DW-6, and Karnail Singh, DW-7 in their defence. Some documents were also tendered into evidence. Thereafter, the defence evidence was closed. 10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 11. Feeling aggrieved, an appeal was preferred by the appellants, which was dismissed by the Additional Sessions Judge (Adhoc), Fast Track Court, Sangrur, vide judgment dated 21.01.2010. 12. Still feeling dis-satisfied, the instant revision petition has been filed by Surjit Singh, revision-petitioner. Crl. Revision No. 396 of 2010 6 13 I have heard the Counsel for the revision-petitioner, and have gone through the evidence and documents, on record, carefully. 14. The Counsel for the revision-petitioner has only advanced the argument to the effect that the Courts below, did not take into consideration the provisions of Section 360 of the Code of Criminal Procedure, as they did not record any special reasons, for not releasing the accused/convicts on probation of good conduct, though they were not the previous convicts. He also placed reliance on Karaj Singh v. State of Punjab, 1996 (2) RCR (Criminal), 367 in support of his contention. No doubt the other grounds were taken, in the memorandum of revision-petition, but those were not pressed by the Counsel for the revision-petitioner. 15. After giving my thoughtful consideration to the contention, raised by the Counsel for the petitioner, in my considered opinion, the revision-petition is liable to be dismissed, for the reasons to be recorded hereinafter. It is settled principle of law, that this Court, in its revisional jurisdiction, can not re-appreciate and re-evaluate the evidence, produced by the prosecution, until and unless it comes to the conclusion, that there was mis-reading or mis-appreciation of evidence, or material piece of evidence, was ignored by the Courts below, while deciding the case. On due scrutiny of the Crl. Revision No. 396 of 2010 7 evidence of Bhura Singh, complainant-cum-injured, (PW-1), who deposed in terms of the prosecution version, Raj Singh, injured,(PW-2), and Surjit Kaur, an eye witness, (PW-3), who corroborated the statements of Bhura Singh, Balihar Singh, Assistant Sub Inspector, (PW-4), Investigating Officer, Dr. Suresh Kumar, (PW-5), Dr. Harinder Singh, (PW-6), and Dr. Karam Singh, (PW-7) the Courts below were right in coming to the conclusion, that the same was cogent, convincing and reliable and sufficient, to bring home the guilt to the accused. The Courts below were also right, in holding, that the motive was with the accused to cause injuries, on the person of the complainant-cum-injured, and the injured, as they wanted to take forcible possession of the passage (pahi), to which the complainant objected to. The judgment of conviction and the order of sentence, awarded by the Courts below, do not suffer from any illegality or infirmity, warranting the interference of this Court. The same are liable to be upheld. 16. Now coming to the submission of the Counsel for the revision-petitioner, that no special reasons were recorded by the Courts below for declining the concession of the provisions of Section 360 Cr.P.C., though he was not the previous convict. It may be stated here, that the Courts below came to the conclusion, that keeping in view the nature of offences, committed by the accused-petitioner, he was not Crl. Revision No. 396 of 2010 8 entitled to the benefit of the provisions of Section 360 Cr.P.C.. It may be stated here, that as many as 16 injuries were caused, on the person of Bhura Singh, injured, out of which three injuries were on his chest i.e. vital part of the body. As many as 5 injuries were caused on the person of Raj Singh son of Bhura Singh. Injury No.1 was on the occipital prominence area of scalp of Raj Singh. Injury nos. 1,3,5 to 7 and 9 to 14 on the person of Bhura Singh, injured, were subjected to x-ray examination and the remaining were found to be simple, in nature. Injury nos. 1,2 and 5 on the person of Raj Singh, were subjected to x-ray examination. There was fracture of occipital bone and right parietal bone of Raj Singh. Keeping in view the heinous nature of the offences, committed by the accused, the Courts below were right in declining the concession of the provisions of Section 360 of the Code of Criminal Procedure. Even otherwise, in view of the enforcement of the Probation of Offenders Act, 1958, which is a special enactment, the provisions of Section 360 Cr.P.C. shall not be applicable. It was held in Dalbir Singh v. State of Haryana, AIR 2000 SC 1677 that the provisions of Section 4 of the Probation of Offenders Act, 1958, can be resorted to ony, when the Court considers the circumstances of the case, particularly the “nature of offence” and forms its opinion, that it is suitable and appropriate for accomplishing a specified object, that the Crl. Revision No. 396 of 2010 9 offender should be released, on probation of good conduct. It was held in Phul Singh v. State of Haryana, AIR 1980 SC 249 that the provision of Section 4 of the Probation of Offenders Act, 1958, should not be mistaken, as undue leniency, nor should it be applied leniently in undeserving cases, where the offender in his early twenties, committed a reprehensible offence. Since, after taking into consideration the heinous nature of the offences, committed by the accused- petitioner, the Courts below came to the conclusion that no ground was made out for the grant of concession of the provisions of Section 4 of the Probation of Offenders Act, 1958, they did not grant the same. It, therefore, could not be said that no special reasons were recorded by the Courts below, in declining the concession of the provisions of Section 4 of the Probation of Offenders Act, 1958. 17. In Karaj Singh's case (supra), relied upon , by the Counsel for the revision-petitioner, the most important feature was that the complainant caused delay, in lodging the first information report, merely for the reason that if the offender repented and apologized, he would not lodge any complaint against him. It was held that this circumstance, in itself went to show that the complainant was ready to enter into compromise with the accused at the initial stage. Not only this even the injuries caused on the person of the complainant, in Crl. Revision No. 396 of 2010 10 that case, were on non-vital parts of the body. It was under these circumstances that the petitioners in that case, were held entitled to the grant of concession of the provisions of Section 360 Cr.P.C. The facts of the aforesaid case, being clearly distinguishable, from the facts of the instant case, the submission of the Counsel for the revision-petitioner, being without merit, must fail and the same stands rejected. 18. For the reasons, recorded above, the revision petition, being devoid of merit, must fail, and the same is dismissed. 19. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. (SHAM SUNDER) JUDGE February 16, 2010 dinesh