IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1195 of 2001 (Old No. 998 of 1997) 1. Roshandeen S/o Sri Ali Sher 2. Veeru S/o Shri Ali Sher 3. Mohd. Alam S/o Sri Ali Sher All R/o Kali Khut Khatta, P.S. Kaladhungi, District Nainital. ...…………. Appellants Versus State of U.P. (Now State of Uttarakhand). ...…………. Respondent Mr. M.C. Kandpal, Sr. Advocate, assisted by Mr. S.S. Chaudhary, Advocate, present for the appellants. Mr. M.A. Khan, Brief Holder, present for respondent State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 14.05.1997, passed by Special Judge / Addl. Sessions Judge, Nainital, in Sessions trial No. 375 of 1995, whereby said court has convicted the appellants Roshandeen, Veeru and Mohd. Alam, under Section 325 of the Indian Penal Code, 1860 (hereinafter referred as 2 I.P.C.), and sentenced each one of them to rigorous imprisonment for a period of six months. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that on 31.03.1994, at about 05:35 P.M., complainant Avtar Singh (P.W. 3) and Mehtab Singh were guarding a leased plot in Village Khoont Khatta. Cattle of accused / appellants when entered in the field, they were chased away and made to go from the field. On this, accused / appellants Roshandeen, Veeru and Mohd. Alam, armed with Lathi and rods, came at the spot and assaulted P.W. 3 Avtar Singh and his associate Mehtab Singh. The two got injured. They got lodged a non cognizable report, registered at police station Kaladhungi, on the next day i.e. 01.04.1994, at 01:30 A.M. Thereafter, they were medically examined in Primary Health Center Kaladhungi, where P.W. 1 Dr. C.M. Chaturvedi recorded as many as six injuries on the person of Avtar Singh, and two simple injuries on the person of Mehtab Singh. Avtar Singh was advised X-ray. On X-ray, it was found that there was fracture on the left wrist and also on the left elbow of Avtar Singh. After receiving the medical report, the case was converted in respect of offences punishable under Section 308, 325 and 504 of I.P.C. P.W. 5 Sub Inspector Kripal Singh conducted the investigation, and submitted 3 charge sheet (Ext. A –11) against the accused / appellants Roshandeen, Veeru and Mohd. Alam. 4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial. Learned Addl. Sessions Judge, to whom the case was transferred, after hearing the parties, framed charge of offences punishable under Section 308, 325 of I.P.C. All the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Dr. C.M. Chaturvedi; P.W. 2 Head Constable Daya Kishan; P.W. 3 Avtar Singh (complainant and injured); P.W. 4 Pooran Singh (eyewitness) and P.W. 5 Sub Inspector Kripal Singh Negi (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. However, no evidence in defence was adduced. After hearing the parties, the trial court found accused / appellants Roshandeen, Veeru and Mohd. Alam guilty of charge of offence punishable under Section 325 of I.P.C., only. Accordingly, after hearing on sentence, each one of the convicts was sentenced to rigorous imprisonment for a period of six months under said Section. Aggrieved by the judgment and order dated 14.05.1997, passed by Special Judge / Addl. Sessions Judge, Nainital, in Sessions Trial No. 375 of 1995, this appeal was preferred by the convicts before the Allahabad High Court on 4 13.06.1997, where it was admitted on 16.06.1997. The appeal is received to this Court by transfer under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, this Court thinks it just and proper to mention here, the injuries recorded by P.W. 1 Dr. C.M. Chaturvedi, in injury report (Ext. A –1) on 01.04.1994, at 02:45 A.M., on the person of Avtar Singh. The same are being reproduced below: i) Lacerated wound 1.5 cm X 0.4 cm X 1 cm on the left side of cheek. 3 cm below and medial to the outer angle of the left eye, margins irregular. Dried blood present at the margin and clotted blood present in the wound . ii) Lacerated wound on the posterio lateral aspect at left upper arm 2 cm X 0.6 cm X 0.5 cm in size, margins irregular and abraded, soft tissue protruding from the wound. Dried blood present. There is soft tissue swelling 11 cm X 6 cm around the laceration. Laceration is 8 cm above the left oleerenon process. iii) Soft tissue swelling 9 cm X 7.5 cm on the dorsum of left hand extending from the left wrist joint to the base of the fingers. iv) Abrasion 1 cm X 0.5 cm on the back of right hand at the meta carpo phalangeal joint of right middle finger. Red in colour. v) Lacerated wound 6 cm X 1 cm X 0.5 cm on the left side of back of skull, margins irregular. 5 Clotted blood present on the wound. Dried blood present around the margins, 10 cm above and posterior to root of the left ear. vi) Abrasion 4 cm X 0.5 cm in the right side of back of skull, 11 cm above the root of right ear. Red in colour. The Medical Officer opined that injuries No. (i), (ii), (iii) and (v) are caused by some blunt object. The same Medical Officer (P.W. 1 Dr. C.M. Chaturvedi) after advising X-ray prepared the supplementary X-ray report (Ext. A –2) in which following findings are given on the basis of the Radiologist report: i) X-ray left wrist AP view & lateral view reveals fracture of 4th and 5th metacarpal of left hand. ii) X-ray left eblow AP & lateral view reveals fracture of distal end of shaft of humerus just above lateral epicondyle. This made the Medical officer to opine that the two injuries were grievous in nature. 6) In the light of the above medical evidence, if we read the statement of P.W. 3 Avtar Singh, the injured, that he was beaten around 05:30 P.M. on 31.03.1994, by accused / appellants Roshandeev, Veeru and Mohd. Alam, there remains hardly any doubt as to the truthfulness of the testimony of the injured witness. In the opinion of this court, in the above circumstances, the 6 trial court has committed no error of law in holding the accused guilty of charge of offence punishable under Section 325 of I.P.C., particularly, when the testimony of the injured witness is corroborated by P.W. 4 Pooran Singh, an eyewitness. 7) Learned counsel for the appellants submitted that even if the statement of P.W. 3 Avtar Singh is believed, the appellants were entitled to benefit of the Probation of Offenders Act, 1958. I have considered the facts and circumstances of the case, and the relevant provisions of law. Section 4 of the Probation of Offenders Act, 1958, provides 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. There is nothing on the record which shows that anyone of the appellants has criminal history. They appear to have been found guilty for the first time of the offence punishable under Section 325 of I.P.C. The incident is of 7 the year 1994, and now more than 15 years have already passed. In these circumstances, this Court thinks it just and proper to give the benefit of the provision contained in the Probation of Offenders Act, 1958, to the appellants. 8) Accordingly, this appeal is partly allowed. So far as the conviction recorded by the trial court against appellants in respect of offence punishable under Section 325 of I.P.C. is concerned, the same is affirmed. However, the sentence of rigorous imprisonment of six months awarded by the trial court against each of the appellants shall remain suspended, and the appellants Roshandeen, Veeru and Mohd. Alam shall be released on entering into a personal bond by each one of them of Rs. 5,000/- before the Chief Judicial Magistrate, Nainital, for a period of one year, only. On entering into such a bond by the appellants they shall not be made to undergo the sentence awarded by the trial court, which shall remain suspended for one year. Thereafter, on completion of one year of their good conduct, they need not to appear before the court to serve out the sentence. The appeal, accordingly, stands disposed of. Lower court record be sent back to the trial court. (Prafulla C. Pant, J.) [[ Dt. July 09, 2010. H. Negi