1 S.B.CRIMINAL REVISION PETITION NO.966/2001 (Kailash and ors. Vs. The State of Rajasthan) DATE OF ORDER ::: 28th JANAURY, 2010 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. SK Gupta, for the petitioners. Mr. Amit Punia, PP for the State. BY THE COURT: This criminal revision is directed against the judgment and order dated 11th October, 2001 rendered by Additional Sessions Judge, Hindaun City, whereby the appellate Court upheld the conviction of the accused Kailash in the offences under Sections 452, 323, 341, 325 of IPC and other accused persons namely, Bhagwati, Arvind and Raju in the offences under Sections 452, 323, 341 and 325 read with Section 34 of IPC, but learned Sessions Judge setting aside the sentence of imprisonment of fine, released them on probation of good conduct under Section 4 of Probation of offenders Act, 1959. The facts necessary for disposal of this criminal revision, in brief, are stated thus: That on 31st of July, 1991 the complainant Hari Charan lodged a report at Police Station Todabhim for the incident, which is alleged to have taken place on 24th July, 1991 in the morning at 6.00 AM. The Police after having 2 registered the case, conducted investigation and after completion thereof filed police report under Section 173(2) of Cr.P.C. in the Court. The accused were charged in the offences under Sections 452, 341, 323 and 325 read with Section 34 of IPC, who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined six witnesses. The accused Kailash in his statement recorded under Section 313 of Cr.P.C., pleaded that on the date of occurrence he was sitting on his Chabutara. The accused persons Hari Chand, Mukesh, Brijesh, Santosh and Jai Lal came there and gave him beating, as a result of which he sustained fracture in the finger of his hand. The accused persons further submitted that they have been falsely implicated in this case. On completion of trial, the accused revisionists were convicted and sentenced as indicated hereinabove. Heard the learned counsel for the accused revisionists as also learned Public Prosecutor appearing for the State and learned counsel for the complainant and perused the material on record. Learned counsel for the accused revisionists contended that the impugned judgment suffers from numeral 3 infirmities. The prosecution did not examine the investigating officer of this case and the learned trial Court did not consider the right of private defence, they had taken in the trial. He further contended that the offences as alleged, are not proved against the accused revisionists, beyond reasonable doubt and they deserve to be acquitted. Learned Public Prosecutor appearing for the State defended the impugned judgment and stated the same to be just and proper. He further canvassed that the learned trial court has taken note of all the aspects of the matter and appreciated the prosecution evidence in its right perspective. The impugned judgment did not suffer from any infirmity and as such the revision deserves to be dismissed. Having ruminated over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that there is common finding of both of learned trial court and learned appellate Court, on the factual aspect of the case. Albeit, the learned counsel for the accused revisionists canvassed that the complainant party was the aggressor and in their private defence they caused the injuries to injured Hari Charan, but no question was put to any of the 4 prosecution witnesses that Hari Charan sustained injuries when they were assaulting upon the accused party. It is nowhere mentioned that Hari Charan was caused injuries by their fellow persons. Not only this, no question was put to any prosecution witness that the complainant party was the aggressor. The plea of right of private defence seems to have been built up later on at the time of examination of accused persons under Section 313 of Cr.P.C. It is an admitted fact that both the parties fought with each other and caused injuries to each other and both the parties lodged FIRs against each other, who after investigation were put to trial. Adverting to the statements of Hari Charan, it is found that he was assaulted upon by Kailash, Bhagwati, Arvind and Raju who were armed with clubs. At the time of occurrence, the injured Hari Charan was a Teacher who was going to School in the early hours at 6.00AM. He was assaulted upon by the accused revisionists when he came out of his Bhakal. The accused Kailash is alleged to have assaulted with a club on the elbow of his left hand, resulting into fracture thereof. Rest of the accused persons are alleged to have given beating and caused injuries on his person. The injuries narrated by PW/1 Hari Charan stand duly corroborated by 5 the testimoney of PW/3 Dr. Shyam Bihari who after having examined his injuries, prepared the medical examination report Ex.P/4. Injured Hari Charan sustained one contusion on his left arm and this injury was advised for X-ray. PW/6 Dr. Nand Lal Sharma got the X-ray of his left hand done in his presence and found fracture of left ulna bone. Thus, the simple and grievous injuries sustained by Hari Charan are found to be proved by the ocular testimony of PW/1 Hari Charan and medical examination report Ex.P/4 and X- ray report Ex.P/5. The statements of PW/1 Hari Charan have been corroborated by PW/5 Mukesh. Non-examination of the Investigating Officer of this case does not affect the veracity of the prosecution witnesses since there is a common finding of both the Courts below about the factual aspect. I do not find any reason to interfere with the same. The learned counsel for the accused revisionist has not advanced any legal argument which is required to be discussed. The learned trial Court has examined the prosecution evidence and appreciated the same in its right perspective. The impugned judgment seems to be just and proper, based on cogent reasoning. It suffers from no infirmity. I am in full agreement with the finding of conviction arrived by by the learned trial Court and the learned appellate 6 Court. So far as the punishment is concerned, the learned appellate Court has already taken a very lenient view. The learned appellate Court has set aside both the sentences of imprisonment and fine imposed on the accused persons by the learned trial Court and released them on probation of good conduct under Section 4 of Probation of Offenders Act. The learned appellate Court also ordered the accused revisionists each to pay Rs.2,000/- as prosecution expenses and deposit the same with the Court. In view of the fact that both the complainant and accused party lodged FIRs against each other and police after investigation in both the cases filed charge-sheet against them in the Court, I do not deem it just to direct each accused revisionist to deposit Rs.2,000/- as prosecution expenses in the Court after 19 years of occurrence and thus this order needs to be set aside. For the reasons stated above, the criminal revision is allowed in part. The conviction of the accused revisionist and the order of releasing them on probation of good conduct under Section 4 of Probation of Offenders Act is maintained, but the order of directing each accused revisionists to deposit Rs.2,000/- as 7 prosecution expenses in the Court, is set aside. The impugned judgment stands modified as indicated hereinabove. (MAHESH BHAGWATI)J. pcg