IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 126 of 1996 Date of Decision : March 30, 2010 State of H.P. …Appellant. Versus: Ashwani Kumar & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant: Mr. Vivek Thakur, Addl. A.G. For the respondents : Mr. Neeraj K. Sharma, Advocate Deepak Gupta, J. (Oral). By means of this appeal, the State has laid the challenge to the sentence imposed by the learned Sessions Judge, Sirmaur District at Nahan, H.P., upon the respondents- accused after holding the accused guilty of having committed the offences punishable under Sections 307 and 324 read with Section 149 IPC. The learned trial Court did not sentence the accused to undergo imprisonment, and instead granted them probation. The learned trial Court passed the following order:- 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 “After considering the aforesaid facts in relation to these convicts, their family back-ground, age, character, antecedents and similar other facts, I am of the opinion that it is expedient in the interest of justice to extend them the benefits of Section 360 Cr.PC read with Section 4 of the Probation of Offenders Act. In that view of the matter, it is ordered that they shall be released on furnishing a personal bond of Rs.8000/- and also a surety bond of the same amount each undertaking thereunder to keep peace, tranquility and be of good behaviour for a period of one year to the satisfaction of this Court, failing which they shall be called upon to undergo the sentence likely to be imposed under the Sections they are held guilty above.” The State has laid challenge to this order. Firstly, it is contended that the learned trial Court erred in extending the benefits of both Section 360 Cr.PC and Section 4 of the Probation of Offenders Act. Secondly, it is contended that without calling for the report of the Probation Officer, no benefit under the Probation of Offenders Act could have been granted to the accused. On going through the aforesaid portion of the order, we find that the same is wholly illegal and shows total lack of application of mind by the learned trial Court. The learned trial Court, found the accused guilty of having caused hurt to Rakesh Kumar and also having committed an offence of attempt to murder. Section 307 of the Indian Penal Code reads thus: “307. Attempt to murder:- Whoever does any act with such intention or knowledge, and under such 3 circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life-convicts- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.” From a perusal of the above provision, it is obvious that if hurt has been caused while committing an attempt to murder, the sentence imposed can be up to life imprisonment. Neither Section 360 of the Code of Criminal Procedure nor Section 4 of the Probation of Offenders Act would apply in such a case. Section 360 Cr.PC clearly lays down that it is applicable in the case of convict over 21 years of age, where the offence is punishable with imprisonment up to a term of 7 years or less. In case the convict is below 21 years of age or is lady then also the benefit of Section 360 Cr.PC cannot be extended to cases where the offence for which the accused is convicted, is punishable with death or imprisonment for life. Similarly, Section 4 of the Probation of Offenders Act clearly lays down that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life, his case should be considered for grant of 4 probation. Since the accused were convicted of having committed an offence which is punishable with life imprisonment, the learned trial Court could neither have invoked the provisions of Section 360 Cr.PC nor of Section 4 of the Probation of Offenders Act. Further, we are of the considered view that the learned trial Court erred in extending the benefits of both sections simultaneously. In any State, once the Probation of the Offenders Act is made applicable to that State, then the provisions of Section 360 Cr.PC cease to apply, insofar as the offences covered under the Probation of the Offenders Act are concerned. This is apparent from a bare reading of Section 19 of the Probation of Offenders Act, 1958 which reads as follows: “19. Section 562 of the Code not to apply in certain areas:- Subject to the provisions of Section 18, Section 562 of the Code shall cease to apply to the States or parts thereof in which this Act is brought into force.” In fact this question is no longer resintegra. The following question was referred for the opinion of the Full Bench of this Court in State of H.P. vs. Lat Singh & Ors. (1990) Crl. L.J. 723: “What is the effect of Ss. 360 and 361 of the Code of Criminal Procedure, 1973 vis-à-vis the provisions of the Probation of Offenders Act, 1958? Is S. 360 inapplicable to the State of Himachal Pradesh as the 5 Probation of Offenders Act, 1958 has been brought into force?” Two of the learned Judges constituting the Full Bench answered this question in the following terms: “In view of the above discussion, our answer to the reference made by the Division Bench is that S. 360 of the Code of Criminal Procedure, 1973 is inapplicable to the State of Himachal Pradesh as the Probation of Offenders Act has been brought into force. S. 361, however, applies with full force requiring Courts to record special reasons for not applying the provisions of the Probation of Offenders Act to a case where the Court could have dealt with the accused under the said provisions.” A concurring judgment was given by the 3rd Judge who also held that the provisions of the Probation of Offenders Act continued to apply in the State of Himachal Pradesh. Though, keeping in view the gravity of the offence and the punishment provided, Section 4 of the Probation of Offenders Act is not attracted, even if for the sake of arguments we were to hold that such provision was applicable then also the manner in which the benefit of Section 4 has been granted is totally illegal. Before passing any order granting probation to a convict, the Court is duty bound to call for the report of the Probation Officer concerned and no Court can release a convict on probation without obtaining his report. In this behalf, 6 reference may be made to Section 4(2) of the Probation of Offenders Act which reads as follows:- “(2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.” A bare reading of this Section clearly shows that no Court can pass any order under sub Section (1) of Section 4 without considering the report of the Probation Officer. We are therefore, constrained to observe that the learned trial Court totally misread and misapplied the provisions of Section 360 of the Code of Criminal Procedure and Section 4 of the Probation of Offenders Act. Faced with this situation, Mr. Neeraj Kumar Sharma, learned counsel for the respondents submitted that the accused have been wrongly convicted for having committed an offence punishable under Section 307 IPC. He submits that at best the accused could have been convicted for having committed an offence punishable under Section 324 IPC because there is nothing on record to show that the intention of the accused was to kill the injured persons or that they had knowledge that the injuries which they were causing would lead to his death. He also submits that there is no positive statement of the Doctor that the injuries in normal course could have caused death. It is well settled law that even in an appeal filed by the State for enhancement of sentence, the accused has a right 7 to challenge his conviction itself. Reference may be made to Section 386 of the Code of Criminal Procedure which reads as follows: “386. Powers of the Appellate Court:- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a)------------------. (b)------------------. (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court competent to try the offence, or (ii) Alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, sop as to enhance or reduce the same.” Brief facts of the case are that on 31.5.1991 PW-1 Rakesh Kumar and PW-2 Arun Sharma alias Gola, who were the two injured persons, took meals in “Pehalwan Dhaba” at Bara Chowk, Nahan. After they took their meals they came out from the dhaba. According to the prosecution, all the five accused had formed an unlawful assembly with the intention of committing murder of PW-1 Rakesh Kumar and as soon as Rakesh Kumar 8 and Arun Sharma alias Gola came out of the dhaba, the accused who were armed with deadly weapons attacked them and caused serious injuries to them. Accused Ashwani Kumar was armed with a chopper, accused Abhinash alias Banti was armed with a dagger and the other three accused were armed with iron rods and dandas. On perusal of the evidence, we find that in fact a number of injuries had been caused by a “Palta”, an instrument used for cooking in a restaurant/dhaba. Even a chopper is an instrument used mainly in dhaba. It appears from the evidence that in fact the accused were not armed with these weapons before the act but at the dhaba itself some altercation took place between the two sides, and the accused used the instruments available to attack the injured persons. Doctor Deepak Sharma (PW-11) examined PW-1 Rakesh Kumar and found the following injuries on his person: “1(a) Fracture of left fore-arm bones suspected for which the X-Ray of the part was advised. (b) There were evidence favouring fracture of right leg bones. 2(a) There was a CLW, which was skin and muscle deep placed over the posterior aspect of left leg. Size was 2½ cm x 2 cmx1cm. (b) Another C.L.W. over the dorsal aspect of right leg with well defined margins, 3cm x 1cm only, bone deep. (c) There was a CLW over the ventral aspect of right hand with well defined margins. 9 (d) There were two C.L.W. over the scalp with well defined edges, non oedematous, stained with clotted blood. There were present: (1) over the anterior aspect of the head (scalp) i.e. extending from the anterior part of the scalp in longitudinal and another occupying the occipital region. These were skin, subcutaneous tissue and muscle deep, but no fracture of under lying bones. There were two more C.L.W. over the anterior aspect left lower end of tibia, size 2cmx1cm and 3cmx3cm. The lower lip was also lacerated, swollen. No evidence of injury to underlying teeth. There was more C.L.W. over the left tempo-parietal aspect of the face.” He also examined PW-2 Arun Sharma and observed the following injuries on his person: “1. There was a sharp edged longitudinally placed over the scalp, which was only skin superficial tissue cut and periosteum deep. The edges are regular and bleeding was present. The wound was extending from the junction of fronto-parietal region anteriorly, to the occipital region. No evidence of fracture of underlying bone was detected. No evidence of bleeding per nose per ear or per mouth was detected. 2. There was one more C.L.W. over the posterior aspect of right calf, which was incised in nature, blood stained. The margins were regular. The size was 6cmx2cmx3cm placed on the dedial aspect of the part. 3. There was one more C.L.W. over the left leg posteriorly. The edges of the wound were regular 10 and stained with blood. No other injury was present on the body.” He also examined PW-3 Abhinubh Dutta and observed the following injuries on his person: “1. There was C.L.W. in the left hand between middle and index finger covering interiorly and extending upto the posterior aspect, which was skin deep only and underlying muscles were intact. 2. There was a CLW with well defined edges, containing clotted blood, Margins were well defined, regular size 6cmx1 cm over the occipital region. The wound was only skin deep. No evidence of fracture of any underlying bones.” The doctor also made the following observations: “All the injuries were simple in nature and appeared to have been caused with sharp weapon. The injuries could have been caused by means of Iron strap. The injuries appeared to have been caused within three hours. The injuries on the person of Arun could have been caused by means of Palta Ext.P-5. Injuries found on the person of Abhinav could have been caused by palta Ext.P-5. Injuries found on the person of Rakesh could have been caused by palta and iron rods Ext.P-8, Iron strap Ext.P-6 and some sharp edged weapon like a chopper, but no chopper has been shown to me in the court today.” 11 After going through the statement of Dr. Deepak Sharma, we find that the injuries caused to PW-2 Arun Sharma and PW-3 Abhinubh Dutta were all simple injuries. However, the injuries were caused with sharp edged weapons. There was one scalp injury on PW-2 which was only a superficial tissue cut. The other injuries were on the legs. As far as PW-3 is concerned, there was one injury on his hand and one injury was on the occipital region but all these injuries are simple. However, two injuries on the person of PW-1 Rakesh Kumar were grievous injuries. These were the fracture of leg and fracture of fore-arm bones. The other injuries were also mainly on the hands and the legs. There were two cut lacerated wounds on the scalp but there was no fracture of the skull. From the medical evidence, it is apparent that the injuries were mainly caused on the lower parts of the body. In a free fight some injuries may have been caused on the head also but it is apparent that the injuries were not caused with so much force so as to cause the death of the injured persons. No doubt the vital parts are involved in some of the injuries but the injuries on the vital parts are simple in nature and the grievous injuries are on the non-vital parts of the body. This shows that the intention of the accused was to thrash the injured persons and give them beatings but not to kill them. Even the opinion of the doctor is not absolutely clear. He has stated that if the injured persons were left unattended the injuries could have caused their death. This may happen in every case of injury. 12 This is different from saying that the injuries in normal course could have caused death. From the reading of the entire evidence and especially the medical evidence, we are convinced that the accused had no intention of killing any of the injured persons including Rakesh Kumar. Their intention was to beat him up, which they in fact did with dangerous weapons. Since they had also caused grievous injuries and they had caused them with dangerous weapons, they are guilty of having committed an offence punishable under Section 324 IPC. In view of the above discussion, the conviction of the accused under Section 307 IPC is set-aside and the accused are convicted of having committed an offence punishable under Section 324 read with Section 149 IPC. Coming to the question of sentence, we find that the incident in question occurred as far back as 31.5.1991. Almost two decades have passed. At this stage, the accused may have grown up children and to sentence them to incarceration in jail would be unduly harsh. We, therefore, feel that this is a fit case where we should impose a fine and direct that some portion of the fine should be paid to the injured persons and some of the fine can be paid to the State for defraying the expenses incurred on the prosecution of the case. Keeping in view the facts and circumstances of the case, we feel that each of the accused should be sentenced to pay a fine of Rs.20,000/-. Out of this 13 amount deposited by each accused, Rs.10,000/- shall be paid to injured Rakesh Kumar, Rs.3,000/- to injured Arun Sharma and Rs.2,000/- to injured Abhinubh Dutta and Rs.5,000/- to the State to defray the expenses on the prosecution. This fine be deposited within a period of two months from today. In default of payment of fine, each of the accused is sentenced to undergo rigorous imprisonment for a period of two years. The appeal is disposed of in the aforesaid terms. ( Deepak Gupta ) Judge. ( Sanjay Karol ), Judge. March 30, 2010. (rana)