IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Rev. No. 196 of 2004. Date of Decision:11.5.2011. _______________________________________________ Bal Krishan. ….Petitioner. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner :Mr.Mohan Singh, Advocate. For Respondent. : Ms.Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner is aggrieved by his conviction by two courts below for offences under Sections 323 and 451 I.P.C. for which he has been sentenced to undergo imprisonment for various terms. 2. The case of the prosecution is that on 21.11.2001 at around 9.30 p.m., the petitioner had an argument with one Diblu Ram, who was carrying on his trade of ‘Hawker’. He chased the complainant into the house of Kamla Devi and when she intervened, the petitioner hit both Diblu Ram and Kamla Devi with ‘danda’ causing simple injuries to them. When Vijay Kumar nephew of Kamla Devi intervened, he was also assaulted by the petitioner. 3. In his statement under Section 313 Cr.P.C., he has denied his involvement in the case. No defence evidence has been Whether reporters of the Local papers are allowed to see the judgment.yes. 2 brought on record. In order to prove its case, the prosecution examined PW1 Kamla Devi who corroborated the allegations made against the petitioner herein. PW2 Vijay Kumar, Smt. Nisha wife of Vijay Kumar as also Meera daughter-in-law of PW1 Kamla Devi were also in the kitchen. They have also supported the case of the prosecution corroborating the fact that they rushed to save her when they heard her cries. It is in evidence that when the complainant was hit on the head, he suffered injuries from which blood started oozing. PW1 Kamla Devi has been cross-examined at length in order to establish as there was some enmity between her and the accused but she has denied all such suggestions put to her in the Court. 4. PW6 Dr. P.S. Nanda has proved on record medical certificates (Ext.PW6/B, PW6/D and PW6/F). The first medical certificate (Ext.PW6/B) is that of Diblu Ram, on whom lacerated injury 2x1 c.m. on the left middle phaianx and tenderness over the left shoulder were noticed. The second certificate (Ext.PW6/D) deals with the injuries inflicted on Kamla Devi which is a lacerated injury 5x2 cm. reddish pink in colour over the scalp area and the third (Ext.PW6/F) that of Vijay Kumar, the injury has been described to be as tenderness over the scalp and contusion over the scalp 5x3 cm. 5. The learned trial Court thereafter proceeded to convict the petitioner. Appeal filed by the petitioner was dismissed by the learned appellate Court. On the question of sentencing, the petitioner had claimed benefit of the Probation of Offenders Act. The learned appellate Court holds that in the facts and circumstances of the case, the petitioner does not deserve to be granted the benefit of the Probation of Offenders Act. The court holds that the accused had 3 beaten up a poor ‘Hawker’ with a stick without any provocation. When he tried to save himself from the clutches of the accused and rushed into the house of Kamla Devi, she was also beaten up. When Vijay Kumar nephew of Kamla Devi intervened, he also received the same treatment. The learned court holds and rightly so that the manner in which the accused has created defence shows that he is desperado. The sentence under Section 323 I.P.C. was reduced to three months while the sentence for offences under Section 451 I.P.C. was undisturbed. 6. Learned counsel now urges that the judgment of both the courts below is against the law. It is urged that no independent witness has been produced on the record to substantiate the plea of the prosecution that the accused had actually caused injuries. 7. I cannot persuade myself to hold that this is the factual position more so in view of the positive evidence of the injured which has been placed on the record and which testimony has remained un- shattered. What impelled the accused to chase the complainant into the house of a villager who tried to save him from the clutches of the accused, has not been explained on the record by the accused. Even assuming that he had some kind of a grudge with the complainant, his attitude in going after Kamla Devi and her nephew Vijay Kumar who intervened cannot be condoned under any circumstances. From their evidence, I am not persuaded to hold that the testimony in any manner partisan. 8. Learned counsel for the petitioner urges that the petitioner being the first offender is entitled to the benefit of Probation of Offenders Act. He places reliance on the judgment of the Supreme 4 Court in Halappa and others Vs. State of Karnataka (2009) 9 SCC 366 to urge that the accused there being the first offender was entitled to such benefit. I cannot persuade myself to read the judgment in that light. The Supreme Court was dealing with the specific facts of that case. Second judgment relied upon by the petitioner is State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and others, (2004) 7 SCC 659. The Supreme Court held that the offence under Sections 324 and 452 IPC and taken place in the heat of movement and in these circumstances, the accused was entitled to the benefit of the Act. The submission made on behalf of the learned counsel that the benefit of Probation of Offenders Act be granted is therefore rejected. He is a person who had chased a poor man into the house of another person and not only assaulted him but even those others who intervened to save this man. Not only that, he has even assaulted two ladies one of whom was working in the kitchen. 9. Adverting to the sentencing, learned counsel submits that the sentence is excessive and harsh. This is the usual argument which is put forth in this Court at the time when revision admitted and taken up for hearing after a period of 6/7 years. On more than one occasion, the Court had observed that passage of time does not mitigate the offence. However, considering the facts and circumstances of the case, it would be in fitness of things if the accused is directed to deposit a sum of ` 40,000/- with the trial Court within a period of two months from today. Out of this amount, a sum of ` 15,000/- shall be paid to Hawker-Diblu Ram. The remaining amount shall be paid equally to both Kamla Devi as also Vijay Kumar. It is directed that in case of non deposit of this amount, the sentence 5 of imprisonment shall revive and a direction is issued to the trial Court that the sentence be duly and faithfully executed. This petition is disposed of. (Dev Darshan Sud), Judge. May 11, 2011(R)