IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 827 of 2002 Date of decision : 20-05-2009 Dharambir and others .....Petitioners State of Haryana .....Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR Present : Mr. Baldev Singh, Sr. Advocate with Mr. Arshvinder Singh, Advocate for the petitioners. Mr. Dilbag Singh, A.A.G., Haryana for the respondent. ***** NIRMALJIT KAUR, J. The present criminal revision has been filed against the judgment of Additional Sessions Judge, Sonepat dated 17-04-2002 vide which the appeal against the judgment dated 18-01-2002 passed by Chief Judicial Magistrate, Sonepat, convicting the petitioners under Sections 430/323/324/325/34 IPC and sentencing to various terms of imprisonment, was dismissed. The petitioners have been convicted and sentenced by both the Courts below and awarded rigorous imprisonment to petitioner- Dharamvir Singh under Section 323/34 IPC for a period of six months and fine of Rs.500/- and in default of payment of fine, he shall further undergo rigorous imprisonment for 15 days. He has been further awarded rigorous imprisonment for one year and fine of Rs.1000/- under Section 324/34 IPC and in default of payment of fine, further undergo rigorous imprisonment for Criminal Revision No. 827 of 2002 -2- one month. Petitioner-Satbir Singh has been awarded rigorous imprisonment under Section 323/34 IPC for six months and fine of Rs.500/- and in default of payment of fine, further undergo rigorous imprisonment for 15 days. He has been awarded rigorous imprisonment under Section 324/34 IPC for one year and fine of Rs.1000/- and in default of payment of fine, further undergo rigorous imprisonment for one month. Petitioner- Rajender Singh has been awarded rigorous imprisonment under Section 323/34 IPC for six months and fine of Rs.500/- and in default of payment of fine, further undergo rigorous imprisonment for 15 days. He has been further awarded rigorous imprisonment under Section 324/34 IPC for one year and fine of Rs.1000/- and in default of payment of fine, further undergo rigorous imprisonment for one month. Learned counsel for the petitioners argued that as per the version of Mahabir Singh, PW-1, Satbir Singh, petitioner has caused the injury on the head of Mahabir Singh with a Kulhari, a sharp edged weapon. However, no sharp weapon injury was found by the Doctor on the head of Mahabir Singh, complainant, therefore, the evidence of Dr. Subodh Kumar, PW2 totally falsify the ocular account given by Mahabir Singh, who is the sole eye witness, examined by the prosecution in this case. Mahabir Singh, complainant and Narain Singh, PW3, having made inconsistent and discrepant statements have rendered themselves un-reliable in placing reliance upon their evidence. However, there is no merit in the contention raised by learned counsel for the petitioners. It has been consistently held by Hon'ble the Supreme Court that oral statement of the injured witness cannot be disbelieved, just on the basis of minor variation in medical and oral Criminal Revision No. 827 of 2002 -3- evidence. The medical evidence is only a corroborated one. The trial Court and the Appellate Court have discussed the same at length and finally concluded as follows :- “ XXX XXX XXX XXX that the medical evidence is only corroborative one. It only shows whether the injuries could have been caused in the manner told by the PWs or not and nothing more. The learned trial court has dealt with this point at length and there is no illegality or ambiguity in it. It may be mentioned here that it is not necessary that each and every blow would leave it's impact. If the injury is not given with a great force, it may not leave any mark. It also depends what clothes the injured was wearing at that time. So, these arguments are of no avail.” Moreover, there is no litigation between the complainant and the accused and hence, there was no reason to implicate the accused in this case. A perusal of the impugned judgment shows that the same do not suffer from any infirmity. The conviction of the petitioners is, therefore, affirmed. Learned counsel for the petitioners, however, submitted that the Appellate Court has deprived the petitioner of the relief of probation of good conduct. It is stated that the Courts below have committed error in not complying with the mandatory provisions of Sections 360 and 361 of Criminal Procedure Code, by not granting the benefit of Probation of Offenders' Act and also in not giving the reason for not affording the said benefit to them. In support of his argument, reliance has been placed on Criminal Revision No. 827 of 2002 -4- the judgment of this Court, rendered in the case of Banwari v. State of Haryana 2004(3) Crl.C.C. 401, which has further relied on the judgment of Hon'ble Supreme Court, rendered in Om Parkash and others v. State of Haryana 2003(1) RCR (Crl.) 216 (P&H). After hearing learned counsel for the petitioners, I find merit in the submissions made by learned counsel for the petitioners. The Hon'ble Supreme Court, in it's judgment, rendered in Om Parkash's case (supra) held as follows :- “ The provisions of Section 360 Cr.P.C. are beneficial to the accused only when the accused is a first offender in case the accused is more than 21 years of age. Section 361 of the Code of Criminal Procedure indicates that if the Court decided not to exercise its jurisdiction under Section 360, then it must record its reasons as to why the benefit of Section 360 Cr.P.C. is being denied. In view of the peremptory nature of the language of provisions of Section 361, the Magistrate as well as the Court in appeal and revision having not indicated as to why the provisions of Section 360 Cr.P.C. have not been applied, there has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid two sections of the Code have not been complied with.” Reliance has also been placed on the judgment of this Court, rendered in the case of Sat Parkash v. State of Haryana 2006(4) R.C.R. (Criminal) 924, whereby, while releasing the convicts on probation under Sections 325, 324 and 323 of Indian Penal Code, observed as follows :- “ XXX XXX XXX Coming to the question of sentence, it may be noticed that occurrence had taken place in the year 1993. Both the parties i.e. the accused and the Criminal Revision No. 827 of 2002 -5- complainant belong to the same village. With the passage of time, the things must have cooled down. The ever hanging sword of conviction and sentence upon the heads of the petitioners must also have yielded result. There is no material available to show that any of the petitioners have ever indulged in any crime during the last thirteen years. None of them is a previous convict.” Learned counsel for the State does not dispute that the petitioners, herein, have already undergone sentence of more than four months. All the three petitioners are first offenders, in the incident, which took place on 12-05-1994. The petitioners have been facing litigation for last 15 years. At the time of occurrence, all the petitioners were in their early 30s. They are brothers. Petitioner-Dharambir must have been around 35 years, petitioner-Satbir Singh must have been around 25 years, while Rajinder Singh-petitioner must have been about 30 years. Moreover, convict Satbir Singh is stated to be still in the Government job. It was also stated that they are not previous convicts and each of their entire family is dependent on them. Even otherwise, the occurrence relates to the year 1994 and they have already suffered the agony of trial and the sword remained hanging on them for the last 15 years. It would not justify to send them back to jail after such a long time, especially when, nothing is pointed out to show that their conduct was, in any way, improper or they were involved in any other crime during this period while they were on bail. The only ground given for not releasing them on bail by the trial Court was that they have committed the offence of causing hurt to the complainant and deterrent punishment should be given to them which should be an eye Criminal Revision No. 827 of 2002 -6- opener to the society. Thus, in view of the above, ends of justice would be adequately met, if instead of sentencing them, they are ordered to be released on probation of good conduct on furnishing of bond of sum of Rs.20,000/- each along with one surety in the like amount for keeping peace and good behaviour for a period of one year to the satisfaction of the trial Court. However, the sentence of fine, already imposed of Rs.500/- under Section 323/34 IPC shall stand increased to Rs.5,000/- and Rs.1000/- under Section 324/34 IPC, shall stand now increased to Rs.10,000/-, to be paid by each of the accused. The amount already granted by the trial Court and confirmed by the Appellate Court, will be converted as cost of the proceedings under Section 5(1)(b) of the Probation of Offenders' Act and the remaining enhanced amount shall be paid to the injured-Mahavir Singh. (NIRMALJIT KAUR) JUDGE 20-05-2009 gurpreet Whether to be referred to the Reporter : Yes / No