Crl.Rev.No.753 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev.No.753 of 2009 Date of Decision: 16.4.2009 Pala Singh .....Petitioner Vs. State of Haryana ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. P.C. Gupta, Advocate for the petitioner. Mr. Niraj Bhutani, AAG, Haryana for the respondent. .... RAJIVE BHALLA, J The petitioner challenges his conviction and sentence ordered by the Chief Judicial-Magistrate-cum-Principal Magistrate, Juvenile Justice Board, Fatehabad, and the dismissal of his appeal by the Additional Sessions Judge, Fatehabad. On the night intervening 15/16.8.1994, Mahinder Kaur wife of Sunder Singh recorded a statement that on 15.8.1994 at about 7.00/7.30 PM, she alongwith her husband Sunder Singh were cutting grass in their paddy field. Kartar Singh, elder brother of her husband, his sons Santosh Kumar, Diyal Singh and Pal Singh son of Diyal Singh armed with Kirpan, gandasi and lathies respectively, suddenly arrived at the site of the occurrence. Kartar Singh gave a lalkara and thereafter gave a kirpan blow to the left leg of her husband followed by two more kirpan blows. Santosh Singh gave a gandasi blow on the head of her husband, whereas Pal Singh gave lathi blows etc. Her statement led to the registration of a FIR. Crl.Rev.No.753 of 2009 2 After investigation, the police filed a final report before the Chief Judicial Magistrate-cum-Principal Magistrate,Juvenile Justice Board, Fatehabad, as the petitioner was a juvenile on the date of the commission of the offence. Vide order dated 18.9.1996, the petitioner was charged for offences punishable under Sections 323,324,326 read with Section 34 IPC. In order to bring home the charge, the prosecution examined PW-1 Dr.H.L. Gupta, PW-2 Sunder Singh the injured, PW-3 Smt.Mahinder Kaur the complainant, PW-4 Hawa Singh, ASI and PW-5 Rajinder Singh,ASI. Statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure. In defence, the petitioner produced Jagtar Singh @ Jagga Singh as DW-1. After considering the evidence on record and the arguments addressed, the trial court convicted the petitioner for commission of offences under Sections 323,324,326 read with Section 34 IPC vide order dated 15.1.2005. Vide order dated 5.2.2005, the petitioner was sentenced to undergo imprisonment for a period of six months under Section 323 IPC read with Section 34 IPC, for a period of one year under Section 324 IPC read with Section 34 IPC and for a period of three years under Section 326 IPC read with Section 34 IPC. Aggrieved by the aforementioned judgement, the petitioner filed an appeal. The Additional Sessions Judge, Fatehabad, vide judgement dated 6.3.2009, upheld the conviction but reduced the sentence imposed under Section 326 IPC to rigorous imprisonment for a period of one year. On 24.3.2009, after hearing counsel for the petitioner and appraising the impugned judgements, the following order was passed :- “ Heard. The petitioner challenges the orders dated Crl.Rev.No.753 of 2009 3 15.1.2005 and 6.3.2009 passed by the Chief Judicial Magistrate-cum-Principal Magistrate, Juvenile Court, Fatehabad and the Additional Sessions Judge, Fatehabad. I find no error of jurisdiction or of law, as would require interference with the findings recorded by the courts below. The petitioner has been duly named by the eye-witness i.e. the wife of the injured. The injury attributed to the petitioner has been duly identified and as the prosecution has successfully established the commission of the offence by the petitioner, the impugned orders do not suffer from any infirmity, as would require interference. At this stage, counsel for the petitioner submits that the learned courts below should have considered the petitioner's release on probation. As the petitioner is a first offender, is the only bread winner of the family and has to look after two minor daughters, notice of motion for 16.4.2009, limited to the question of sentence.” It is, therefore, apparent that insofar as petitioner's conviction goes, the impugned judgements do not call for interference and are, therefore, upheld. Counsel for the petitioner has been heard on the question of sentence, particularly with respect to his prayer that the petitioner be released on probation. Counsel for the petitioner submits that the occurrence took place on 15.8.1994 i.e. 14 years ago, when the petitioner Crl.Rev.No.753 of 2009 4 was a juvenile. The petitioner is now married and has two minor daughters, aged 3 years and one year respectively. The petitioner is the sole bread winner of his family comprising of his wife and two minor children and in case, he is imprisoned, his family would be rendered destitute. The petitioner is a labourer, who earns his living by earning daily wages. The petitioner is a first offender. It is, therefore, prayed that while maintaining his conviction, the petitioner be ordered to be released on probation. Counsel for the State of Haryana does not oppose the prayer for release of the petitioner on probation and states that there is nothing to suggest that the petitioner is a previous convict or an accused in other cases. I have heard learned counsel for the parties, considered the arguments advanced by counsel for the petitioner and deem it appropriate to release the petitioner on probation. A due consideration of the arguments addressed by counsel for the petitioner discloses that the petitioner is the sole bread winner of his family, consisting of his wife and two minor daughters aged 3 years and one year. The petitioner is a first offender and does not have any past criminal record. The petitioner is a labourer, who earns wages on a daily basis. Directing him to undergo the remainder of a sentence, would necessary render his family destitute. It would also be necessary to mention here that the offence was committed in the year 1994 when the petitioner was a juvenile and the petitioner has faced prosecution for 14 years. Consequently, taking into consideration the totality of the circumstances referred to herein above, while upholding the conviction and sentence imposed upon the petitioner, the sentence is modified to the extent that instead of undergoing the remainder of the sentence, the petitioner is Crl.Rev.No.753 of 2009 5 directed to be released on probation on executing bonds to the tune of Rs.20,000/- with one surety in the like amount to the satisfaction of Chief Judicial Magistrate, Fatehabad. The petitioner is, however, directed to file an undertaking to keep peace and maintain good behaviour for one year and to appear and undergo sentence as and when called upon to do so. 16.4.2009 (RAJIVE BHALLA) GS JUDGE