Criminal Revision No.1112 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1112 of 2002 Date of Decision:06.01.2010 Hari Singh and others .....Petitioners Versus State of Punjab .....Respondent CORAM: Hon'ble Mr.Justice Mehinder Singh Sullar. Present: Mr.S.K.Bawa, Advocate, for the petitioners. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent. **** Mehinder Singh Sullar, J.(Oral) Having lost the legal battle in the Courts below, petitioners- Hari Singh and Darshan Singh have directed the present revision petition against the impugned judgment of conviction and order of sentence dated 17.02.2001 of the trial Court and judgment dated 03.05.2002 of the lower Appellate Court. 2. The matrix of the facts culminating in the commencement, relevant for disposal, of the present revision petition and emanating from the record is, that on the fateful day of 02.09.1998, complainant-PW2- Bhajan Lal, who was engaged as a menial worker (Siri) with PW3- Sukhwinder Singh, was irrigating his (PW3) paddy crop. As soon as, at about 5.40 P.M., PW2 had just taken his turn of canal water for irrigating the paddy crop from Buta Singh son of Bir Singh, in the meantime, accused-Hari Singh and Darshan Singh (petitioners) and Gurjant Singh son of Darshan Singh (released on probation by the trial Court) and Baldev Criminal Revision No.1112 of 2002 2 Singh son of Mohinder Singh (acquitted by the lower Appellate Court), residents of village Kale Ke came there and objected to the taking of turn and proclaimed that they will first take the turn of water. Thereafter, accused-Baldev Singh and Darshan Singh caught hold PW2 from his waist, whereas accused-Gurjant Singh raised a 'lalkara' that he should not be escaped alive. According to the prosecution version, in the meantime, accused-Hari Singh gave a spade (Kahi) blow which hit on the left side of the head of PW2 and he fell down on the ground. Hari Singh gave another spade (Kahi) blow from its reverse side, which again hit left side of his (PW2) head while he was lying on the ground. In the wake of noise raised by PW3, all the accused fled away from the place of occurrence. 3. Leveling a variety of allegations in all according to the initial prosecution version that on 02.09.1998, accused-Baldev Singh and Darshan Singh caught hold (PW2) from his waist, while accused-Gurjant Singh raised a 'lalkara'. The main accused-Hari Singh caused two injuries with spade (Kahi) on the left side of his (PW2) head. On the basis of aforesaid allegations and in the wake of statement (Exhibit PB/1) made by PW2, which formed the basis of FIR (Exhibit PB/2), the present case was registered against the accused on accusation of having committed the offences punishable under Sections 323, 324 read with Section 34 IPC, in the manner indicated here-in-above. 4. Having completed all the codal formalities, all the accused were charge-sheeted for the commission of offences punishable under Sections 323, 324 read with Section 34 IPC by the Trial Magistrate vide order dated 17.02.2001. The record of the case would reveal that the contents of charge-sheet were read over and explained to them, to which, they pleaded not guilty and claimed trial. Consequently, the case was slated for evidence of the prosecution. 5. The prosecution in order to substantiate the charges brought Criminal Revision No.1112 of 2002 3 against the accused, examined PW-1-Dr.K.K.Goyal, who medico legally examined PW2 vide MLR (Exhibit PA) and found the following two simple injuries:- “1. Incised would 6cm x ½ cm x muscle deep present over the scalp on left side 8 cm from the left eyebrow, 7.8 cm from mid line. Bleeding was present and the X- Ray was advised. 2. LW 5 cm x 1 cm x bone deep present over the scalp on left side 5.5 cm from left ear, lobula 7 cm from the left side eyebrow and bleeding was present. The X- Ray was advised”. 6. PW2-complainant-Bhajan Lal and PW3-Sukhwinder Singh, eye witness, who have reiterated the case of the prosecution. PW4-SI Baljinder Singh, recorded the statement (Exhibit PB/1) of PW2. He has also proved the FIR (Exhibit PB/2), site plan (Exhibit PF) and recovery memo (Exhibit PF). He attempted to testify investigation, conducted by him. 7. After the close of the prosecution case, the statements of the accused were recorded. The entire incriminating material was put to enable the accused to explain any circumstances appearing against them in the evidence as contemplated under Section 313 Cr.P.C.. But, the accused denied the prosecution version in its entirety and pleaded false implication. Accused-Hari Singh and Darshan Singh pleaded that since they have purchased the land at village Kali Ke from one Kulwant Singh, in respect whereof, civil litigation was pending, so, they have been falsely implicated in this case on account of enmity. The remaining accused also toed the line of defence as pleaded by accused-Hari Singh. However, they did not prefer to lead any evidence in defence. 8. Having scrutinized the evidence on record, the Trial Magistrate Criminal Revision No.1112 of 2002 4 convicted and sentenced the accused vide impugned judgment of conviction and order of sentence dated 17.02.2001 in the following manner:- Hari Singh was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- for the commission of offence punishable under Section 324 IPC whereas his co-accused, namely, Darshan Singh and Baldev Singh were sentenced to undergo rigorous imprisonment for the same term each for the offence under Section 324 read with Section 34 IPC. In default of payment of fine, all the accused were further ordered to undergo rigorous imprisonment for a period of one month. Likewise, accused-Hari Singh was also sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- for the commission of offence under Section 323 IPC while his co- accused, namely, Darshan Singh and Baldev Singh were sentenced to undergo rigorous imprisonment for the same term and fine for the offence under Section 323 read with Section 34 IPC. In default of payment of fine, all the accused were further ordered to undergo rigorous imprisonment for a period of 15 days. However, keeping in view the age and other antecedents, accused-Gurjant Singh was ordered to be released on probation for a period of one year on his furnishing probation bond in the sum of Rs.5,000/- with one surety in the like amount thereby undertaking to remain of good conduct and character during probation period, besides imposing the litigation cost of Rs.1500/-. 9. Aggrieved by the impugned judgment of conviction and order of sentence, all the four accused preferred the appeal before the learned Additional Sessions Judge, Barnala. The appeal qua Hari Singh, Darshan Singh and Gurjant Singh was dismissed, whereas, the appeal qua Baldev Singh was accepted and he was acquitted of the charge framed against Criminal Revision No.1112 of 2002 5 him vide impugned judgment dated 03.05.2002. 10. Petitioners-accused Hari Singh and Darshan Singh still did not feel satisfied with the impugned judgments and filed the present revision petition. That is how I am seized of the matter. 11. At the very outset, learned counsel for the petitioners has contended with some amount of vehemence that the Courts below fell in grave error in recording the conviction of the accused. In this respect, he submitted that the identity of injured Bhajan Lal-PW2 was not established, story of the prosecution was highly improbable, and the evidence brought on record by the prosecution was discrepant on material points. Meaning thereby, all the arguments of learned counsel for the petitioners-accused are beyond the scope of revisional jurisdiction of this Court. The Courts below recorded a finding of fact based on the evidence that it was PW2- Bhajan Lal, who sustained injuries in the occurrence which was witnessed by PW3. It is well neigh settled that revisional jurisdiction of this Court can only be exercised to test the correctness, legality and propriety in the impugned judgments. All the points now sought to be canvassed by learned counsel for the petitioners have already been duly considered and decided by the Courts below. Such findings of facts based on the evidence cannot possibly be interfered while exercising the limited revisional jurisdiction of this Court. 12. Faced with the situation, learned counsel for the petitioners- accused then urged that as per original statement (Exhibit PB/1) of PW2 which formed the basis of FIR (Exhibit PB/2), accused-Baldev Singh and Darshan Singh caught hold PW2 and took him into the grip from his waist, whereas accused-Gurjant Singh raised a 'lalkara' that he should not be escaped alive. It is also so stated by PW3 in his statement before the police and he was duly confronted with his earlier statement (Exhibit DA) in this regard. But PW2 and PW3 while deposing in the Court, have changed Criminal Revision No.1112 of 2002 6 the version in this context and stated that accused-Darshan Singh and Gurjant Singh caught hold him (PW2) in the grip from waist. The argument of the learned counsel for the petitioners-accused that in the initial version of the prosecution as similar role is assigned to petitioner-Darshan Singh as was also attributed to Baldev Singh, therefore, petitioner-Darshan Singh deserves the benefit of doubt on the same grounds on which the lower Appellate Court had acquitted accused-Baldev Singh. 13. Having heard the learned counsel for the parties, having gone through the record of the case, to my mind, this argument has considerable force. The bare perusal of record would reveal that the lower Appellate Court had acquitted accused-Baldev Singh on the ground that he was not in possession of any weapon, had Baldev Singh been present at the time of occurrence? he would have either raised 'lalkara' or participated in the occurrence by causing the injuries on the person of PW2 and it appears that Baldev Singh was not present at the time of occurrence but he was falsely implicated just with a view to exaggerate the number of accused. The presence of Baldev Singh at the time of occurrence being highly doubtful, he was acquitted. 14. It is also not a matter of dispute, that petitioner-accused, Darshan Singh was empty handed as well. Keeping in view the fact that petitioner-accused Darshan Singh was also empty handed and as per original version in FIR (Exhibit PB/2), he and Baldev Singh caught hold PW2 in their grip. it means, the role attributed to Baldev Singh and Darshan Singh in the initial version of the prosecution case is similar and, therefore, he (Darshan Singh) also deserves the benefit of doubt on the same grounds as has already been extended to accused-Baldev Singh by the lower Appellate Court, because, possibility of his false implication as well cannot be ruled out under the present set of circumstances of this case. Therefore, having extended the benefit of doubt, petitioner-Darshan Criminal Revision No.1112 of 2002 7 Singh is also hereby acquitted of the charge framed against him. 15. Be that as it may, but the case of the prosecution against the main accused-Hari Singh is fully proved. PW2 and PW3 have, inter alia, maintained that Hari Singh-accused gave two spade (Kahi) blows on the left side of the head of PW2. The ocular version finds corroboration from the nature of injuries depicted in the MLR (Exhibit PA) proved by PW1- Dr.K.K.Goyal, who medico legally examined PW2. The recovery of the spade (Kahi) at his instance vide recovery memo (Exhibit PF) also lends credence to the prosecution case in the relevant connection. PW4-SI Baljinder Singh also testified his investigation as regards the role of the main accused-Hari Singh in the commission of offences and recovery of spade (kahi), are concerned. No other legal infirmity or patent irregularity has been pointed out by the learned counsel for the petitioners in this regard. Therefore, the impugned judgments of conviction as regards the proved crime against main accused-Hari Singh is concerned, are hereby maintained in the obtaining circumstances of the case. 16. Finding no alternative, learned counsel appearing on behalf of the petitioners has fairly submitted that he will not be in a position to contest the conviction of Hari Singh-petitioner any more in view of the findings of facts returned by the Courts below and this Court cannot re- appreciate and re-evaluate the evidence in exercise of its limited revisional jurisdiction. 17. However, learned counsel for the petitioner has then urged that although there are sufficient grounds and justice would adequately be met if the benefit of probation is granted to petitioner-Hari Singh but the Courts below neither granted the same benefit nor assigned any cogent reasons in this regard, as contemplated under Sections 360/361 Cr.P.C. 18. In order to substantiate his argument, learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Apex Court Criminal Revision No.1112 of 2002 8 in cases reported as Isher Das Versus The State of Punjab, AIR 1972 SC 1295, Sitaram Paswan and another Versus State of Bihar, AIR 2005 SC 3534 and of this Court reported as Pakhar Singh Versus State of Punjab 2007(1) R.C.R. (Criminal) 396. 19. Learned counsel appearing on behalf of the State did not controvert this factual matrix. 20. Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, while Section 361 Cr.P.C. posits that where in any case, the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation of Offenders Act, but has not done so, it shall record in its judgment the special reasons for not having done so. Meaning thereby, the Court while not granting the benefit of probation of Offenders Act, has to record special reasons. But, in the instant case, the Courts below did not assign any cogent reasons in this respect, which were mandatory in nature. 21. Moreover, Section 4 of the Probation of Offenders Act, 1958 (hereinafter to be referred as 'the Act”), postulates 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 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, as the court may direct, and in the meantime to keep the peace and be of good behaviour. 22. The compendium of the law laid down in the aforesaid Criminal Revision No.1112 of 2002 9 judgments is that the non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect and shall prevail if the conditions depicted therein are fulfilled. 23. Having regard to the rival contentions of the learned counsel for the parties, having gone through the circumstances emanating from the record and after bestowal of thoughts over the entire matter, to me, it would be expedient in the interest and justice would be sub-served, if the benefit of probation is granted to the petitioner-Hari Singh as well, inter alia, on the following grounds:- i) It is not a matter of dispute that the present case was registered against the accused-petitioner-Hari Singh on 02.09.1998 and he has suffered the agony of protracted trial for the last more than 11 years. ii) The occurrence originated suddenly on a trivial matter of taking the turn of canal water for irrigating the fields. iii) Petitioner is a first offender and there is no history of his previous conviction. iv) He is an old person aged about 63 years. v) The antecedents and credentials of the petitioner are such that he has not been found involved in any other case. vi) He has been leading a life of honest peaceful citizen. vii) He has already undergone three months and 12 days, a considerable period of his sentence. viii) Injuries attributed to the petitioner are simple in nature with spade (Kahi) which is an implement of Criminal Revision No.1112 of 2002 10 agriculture and not a weapon as such. 24. Such, thus, being the state of facts and law and taking into consideration the period of agony of protracted trial, manner of the occurrence, age and antecedents of the petitioner and totality of other facts and circumstances emanating from the record as discussed here-in-above, to me, it would be expedient and justice would be squarely met and sub- served, if a lenient view in the matter of sentence is taken against accused- Hari Singh as well, inasmuch as, no useful purpose would be served in sending him again to jail to serve out the remaining portion of sentence and instead of sending him to prison, he be released on probation and be directed to pay compensation for the injuries caused to PW2 in the present incident. 25. In the light of aforesaid reasons, having extended the benefit of doubt, accused-Darshan Singh is hereby acquitted of the charge framed against him. However, conviction of Hari Singh-petitioner is hereby maintained. Be that as it may, he is directed to be released on probation on his furnishing personal bond (within two months) in the sum of Rs.20,000/- with one surety of the like amount to the satisfaction of the trial Court, subject to the condition that he would keep peace and be of good behaviour, for a period of one year from the date of passing of this order. In case, he is found to be indulged in such like illegal activities, the sentence awarded to him by the Courts below shall stand revived. He is further directed to pay a sum of Rs.5,000/- as compensation, which shall be paid to PW2 for the injuries caused to him as contemplated under Section 5 of the Act. 26. Revision petition stands disposed of accordingly. January 06, 2010 ( Mehinder Singh Sullar) seema Judge Criminal Revision No.1112 of 2002 11 Criminal Revision No.1112 of 2002 12