Crl.Rev. No.476 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev. No.476 of 2006 Date of Decision: 27.04.2011 Jamil & Ors. ...Petitioners Vs. State of Haryana ...Respondent BEFORE: HON'BLE MR.JUSTICE GURDEV SINGH Present: Mr.Sarfraj Hussain, Advocate, for the petitioners. Mr.Shelchar Mudgal, AAG, Haryana. --- 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.whether the judgment should be reported in the Digest. --- Gurdev Singh, J. (Oral) Petitioners/accused Jamil, Mubeen, Haroon and Ilyas were tried along with Rashid and Fakru, for the offences under sections 323, 325/149 and 148 of the Indian Penal Code by Sub Divisional Judicial Magistrate, Ferozepur Jhirka and were convicted for those offences, vide judgment dated 19.04.2005. Fakru accused was released on probation in view of the fact that he was less than 21 years of age at the time of commission of Crl.Rev. No.476 of 2006 2 offence,whereas other accused were sentenced as under: Name of accused Under sections Sentence Fine In default Jamil, Mubeen, Haroon, Rashid & Alliyas 325 IPC 1 ½ years Rs.1500/- Further imprisonment for 45 days Jamil, Mubeen, Haroon, Rashid & Alliyas 323 UPC Six months Rs.500/- Further imprisonment for 15 days Against that conviction and sentence they preferred an appeal which was decided by the learned Additional Sessions Judge, ad-hoc (Fast Track) Court, Gurgaon vide judgment dated 14.02.2006. Rashid was granted benefit of probation after the sentence so imposed upon him was set aside, whereas the conviction of the present petitioners/accused was upheld and sentence of imprisonment imposed upon them under section 325 IPC was reduced to one year. Now they have preferred the present revision petition against that conviction and sentence. The prosecution case, in brief, is that on 24.06.1998 Rahisan wife of Ali Mohammed had gone to floor mill of Karmul for grinding grains. At that time a dispute took place between her and Fakira regarding weighing stones. On that account the accused were nursing a grudge against the complainant party. On 25.6.1998 Ali Mohammed was standing in his plot, when Jamil, Harun, Iliiyas and Mubin climbed the roof of their house and started hurling stones towards him. Rashid and Fakru also came to help those accused and they also hurled the stones towards him. Rajjak went to the plot to save Ali Mohammed. Stones were hurled towards him also and as a result thereof Rajjak and Ali Mohammed received injuries on Crl.Rev. No.476 of 2006 3 different parts of their person. An alarm was raised which attracted Ashu PW 2 and Gani Mohammed PW 6 and Hanif to the spot who intervened to save them from the clutches of the accused. Both the injured were removed to CHC, Ferozepur Jhirka where they were medico legally examined by Dr.Jai Narain PW 4, who found five injuries on the person of Ali Mohammed and three injuries on the person of Rajjak; which were detailed by him in the Medico Legal Reports Ex.PC and Ex.PD, respectively. Depressed fracture was found on the left frontal region of scalp of Ali Mohammed. Copies of M.L. Reports were sent by the doctor to the Police Station and on the receipt thereof Sukhdev Singh ASI PW 7 came to the hospital and recorded the statement of Rajjak complainant Ex.PA. After making his endorsement Ex.PW 7/A on that statement he sent the same to the Police Station and on the basis thereof FIR was registered against the accused under sections 323/149 and 148 IPC. The ASI went to the place of occurrence and after inspecting the spot prepared rough site plan Ex.PW 7/A with correct marginal notes. He arrested the accused on 8.07.1998. On completion of the investigation challan was put in before the Sub Divisional Judicial Magistrate, who found sufficient grounds for presuming that the accused committed offences punishable under sections 148 and 323 and 325 read with section 149 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove their guilt the prosecution examined Ali Mohammed PW1, Ashu PW 2, Ajit Singh PW 3, Dr.Jai Narain PW 4, Rajjak PW 5, Gani Mohammed PW 6 and Sukhdev Singh ASI PW 7. After the prosecution closed its evidence, the accused Crl.Rev. No.476 of 2006 4 were examined and their statements were recorded under section 313 Cr.P.C. Incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. Accused were called upon to enter upon their defence but they did not produce any evidence in their defence. I have heard learned counsel for both sides. learned counsel for the petitioners/accused did not assail the conviction so recorded by the learned trial court and upheld by the appellate court. He submitted that when similarly situated accused Rashid was granted benefit of probation the same relief could not have been refused to the petitioners/accused by the learned lower appellate court. Though the said accused and Fakru had come to the plot subsequently but they joined the other accused in hurling the stones towards the injured. There is nothing on record to conclude as to which of the accused caused particular injury. In such a situation, in case one of them has been released on probation, the others should also have been given the same benefit. He prayed that the sentence so imposed upon the petitioners/accused be set aside and they be released on probation. Benefit of probation to the petitioners/accused was refused by the appellate court by recording special reasons. According to that court Ali Mohammed had suffered fracture of scalp bone and it was a serious injury. He tried to distinguish the case of Fakru and Rashid by observing in the judgment that they had come afterwards and had constituted unlawful Crl.Rev. No.476 of 2006 5 assembly after joining the other accused. The case of those accused could not have been distinguished on that ground, keeping in view the facts proved on record by the prosecution. Though they had come to the spot subsequently yet they performed the same act which was performed by the other accused. They had joined the other accused in pelting stones towards the injured. It is not the story of the prosecution that some of the injured had already been caused injuries before the appearance of the those two accused at the scene of crime. Release of other accused on probation amounts to discrimination against the present petitioners/accused; as all of them were similarly situated. Much water has flown since the conviction of the accused. They are facing agony of the protracted trial since 1998. Injured can well be compensated for injuries suffered by them at the hands of the accused. Against the sentence of one year, the petitioners/accused have already undergone sentence for a period of 19 days, as is clear from the Custody Certificate produced on record by the State Counsel. It will be in the interest of justice in case the sentence of imprisonment so imposed upon them is reduced to the period already undergone provided they suitably compensate the injured. Accordingly the sentence of imprisonment so imposed upon them is reduced to the period already undergone and they are directed to pay a sum of Rs.20,000/- to Ali Mohammed and Rs.15,000/- to Rajjak as compensation for the injuries suffered by them. They shall be liable to pay this compensation jointly and severely and the fine, if already deposited, shall be adjusted towards this amount. Compensation is to be paid/deposited Crl.Rev. No.476 of 2006 6 in the trial court within a period of 3 months of the passing of this order, failing which this revision shall be deemed to have been dismissed. Records of trial court be returned forthwith. (Gurdev Singh) 27.04.2011 Judge rp