1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Criminal Appeal No. 400/1987 (Virender Pal Singh Versus The State of Rajasthan) S.B. Criminal Revision Petition No. 163/1987 (Banwari Lal @ Polya Versus Virender Pal Singh & Another) Date of Judgment :: 18th May, 2010 HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. Mahesh Gupta for Mr. V.L. Mathur, counsel for the appellant Mr. G.S. Rathore, PP for the State Mr. R.K. Mathur, counsel for the complainant-revisionist BY THE COURT: Challenge in this appeal is to the judgment dated 1st April, 1987 whereby the learned Additional Sessions Judge No.2, Alwar convicted the accused appellant Virendra Pal Singh for the offence under Section 324 of Indian Penal Code and released him under Section 4 of Probation of Offenders Act on probation of good conduct. 2. The accused appellant has preferred this appeal against his conviction for the offence under Section 324 of Indian Penal Code and the 2 complainant Banwari Lal @ Polya has filed a criminal revision imploring to convict him for the offence under Section 307 or 304/34 and 341 of IPC instead under Section 324 of Indian Penal Code and award adequate sentence therefor. Since both the aforesaid criminal appeal and criminal revision arise out of and pertain to the impugned judgment dated 1st April, 1987, they have been heard together and are being disposed of by this common judgment. 3. Necessary facts for the disposal of the aforesaid criminal appeal and criminal revision are, succinctly, stated thus: “That Shri Chiranji Lal, Assistant Sub Inspector, Police Station, Kotwali, Alwar recorded the parcha bayan (Ex.P-1) of injured Banwari Lal on 12th April, 1984 in the hospital, wherein Shri Banwari Lal stated that when he was coming from Akhada after doing physical exercise along-with Babu Lal Saini and reached near Gopal Talkies, he found himself to have been chased by Virendra Pal Singh, Hardev 3 Singh and Hanuman Sharma. It is alleged that the accused Virendra Pal Singh was armed with revolver. It is further alleged that the Virendra Pal Singh assaulted upon his head with the butt of revolver and other co-accused Hardev Singh pulled him down by his leg. When he fell down, the accused Virendra Pal Singh fired at him. He immediately rushed towards Gopal Talkies. No sooner did he reach the channel gate of Gopal Talkies, he saw Virednra Pal Singh, Hardev Singh and Hanuman Sharma chasing him and in the mean-time Virendra Pal Singh fired at him, but same went in air.” 4. The police lodged First Information Report (Ex.P-6) on the basis of parcha bayan of the injured and commenced investigation. 5. The investigating officer prepared site plan (Ex.-P/7), recorded the statements of the witnesses acquainted with the facts and circumstances of the case under Section 161 of CrPC, got the injured Banwari Lal medically examined, 4 seized blood stained Baniyaan of injured vide memo Ex.P-3 and after usual investigation, filed the charge sheet against the accused persons namely Virendra Pal Singh and Hardev Singh. 6. Both the accused persons namely Virendra Pal Singh and Hardev Singh were indicted for the offences under Section 307, 307/34 and 341 of Indian Penal Code, who pleaded not guilty and claimed to be tried. In order to further its version, the prosecution examined 7 witnesses. In their explanation under Section 313 of CrPC, both the accused persons pleaded innocence and claimed to have been falsely implicated. On completion of trial, the learned Additional Sessions Judge No.2, Alwar did not find both the accused persons guilty of the offences under Section 307 and 341 of Indian Penal Code and acquitted them of the alleged charges, but found the accused appellant Virendra Pal Singh guilty for the offence under Section 324 of Indian Penal Code and convicted him as indicated here-in-above. 7. Heard the learned counsel for the 5 parties and carefully perused the relevant material on record including the impugned judgment. 8. Learned counsel for the appellant took me through the statements of the injured himself PW-1 Banwari Lal, PW-4 Dr. P.S. Agarwal and PW-7 Chiranji Lal, the investigating officer of the case and canvassed that from the statements of these witnesses the offence under Section 324 of Indian Penal Code was not proved. There is only one eye witness of the case and he is PW-2 Babu Lal, but he has not corroborated the prosecution story. Apart this, the injuries as enumerated by PW-1 Banwari Lal and PW-2 Babu Lal, do not get corroborated from the injuries mentioned in injury report Ex. P-2. The learned trial court did not appreciate the statements of the prosecution witnesses in the right perspective and arbitrarily convicted the appellant for the offence under section 324 of Indian Penal Code, which is not sustainable in the eye of law, hence, he be acquitted of the said offence. 6 9. E Converso, learned PP appearing for the State as also the learned counsel for the complainant contended that there was ample evidence on record to prove the offence under Section 307 of IPC. It is proved that the appellant fired at him by Revolver with an intention to commit his murder but he narrowly escaped. Had the cartridge hit him at skull or any vital part of the body, he would have died. The use of fire arm is proved by the statements of prosecution witnesses and further gets corroboration from medical evidence. They further contended that even if it is found that only an offence under Section 324 of IPC is proved to have been committed, the accused appellant should have been punished with rigorous imprisonment; but the learned trial court took a very unreasonable view and released him on probation which is liable to be set-aside. 10. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that PW-1 Banwari Lal the 7 injured of the case has corroborated the statements given by him in his parcha bayan Ex. P-1. His statements get corroboration from the statements of PW-2 Babu Lal Saini, who saw the occurrence taking place. Both the injured and the eye witness Babu Lal Saini deposed before the Court that the accused appellant Virendra Pal Singh fired at him, which hit Banwari Lal's chest causing gun shot wound. PW-4 Dr. P.S. Agarwal is found to have medically examined the injured Banwari Lal, who deposed before the Court that Banwari Lal sustained three injuries: one lacerated wound 3 ½ Cm. X 1 Cm. deep on back side of scalp; another injury was gun shot wound of the size of 1 ¼ Cm. X 1 ¼ Cm. on right side of chest; and the third injury was also lacerated wound deep near injury no. 1 on scalp. All the injuries were simple in nature and none of the injuries individually or all the injuries collectively was not sufficient to cause death of the injured in ordinary course of nature. Albeit the injury no. 2 is a gun shot wound but it is simple in nature. No 8 pallet was found therein. Thus the offence under Section 307 of IPC is not found to be proved. So far as the conviction under Section 324 of IPC is concerned, injuries described by both Banwari Lal PW-1 and Babu Lal Saini PW-2, get corroboration from the injuries mentioned in the injury report Ex. P-2. I do not find any ground to abandon the statements of prosecution witnesses namely PW-1 Banwari Lal, PW-2 Babu Lal Saini, PW-4 Dr. P.S. Agarwal and PW-7 Chiranji Lal, the investigating officer of the case. Albeit, some minor inconsistencies and discrepancies have crept into their statements, but these inconsistencies and discrepancies are easily reconcilable and on the ground of minor discrepancies, the evidence of the prosecution witnesses cannot be jettisoned. The learned trial court has critically analyzed and properly appreciated the prosecution evidence in their right perspective. The impugned judgment of the trial court seems to be just and proper and the same does not suffer from any infirmity. The judgment is 9 also found to have been based on sound reasoning, with which I fully concur. 11. The next crucial question springing for consideration in the instant appeal and revision is as to whether the accused appellant has been rightly released on probation of good conduct or he needs to be sentenced to imprisonment in view of one gun shot injury sustained by injured Banwari Lal? 12. Having scanned the record, it is noticed that the occurrence of this case took place way back on 12th April, 1984. The accused appellant has been facing trial for the last 26 years. He has already suffered the trauma of criminal proceedings for over a period of 2½ decades. On the date of occurrence, the accused was found to be of 22 years of age. Keeping in view his age, character and other factors, the learned trial court deemed proper to release him on probation of good conduct under Section 4 of Probation of Offenders Act, 1958. The learned counsel for the complainant has prayed to sentence him with the 10 imprisonment, but it is very relevant to record that after April, 1987 when the accused was released on probation of good conduct, he has not been found to be involved in any criminal activity thereafter. His antecedents have remained unblemished. The appellant by now must have turned gray and attained the age of above 50 years. After 26 years of the occurrence, I do not deem just and proper to send the accused to jail, as in the facts and circumstances of the case, sending the accused appellant to jail to serve out the sentence after 26 years of occurrence will not sub-serve the ends of justice. 13. The High Court has undoubtedly jurisdiction to enhance the sentence, but the jurisdiction is required to be sparingly exercised. This Court has to see as to whether the discretion of releasing the accused appellant on probation of good conduct by the learned trial court has been properly exercised or not and whether it is in the fitness of things after 26 years of occurrence to award any sentence 11 of imprisonment to the accused. Even if we find that on 1st April, 1987 just after 3 years of the occurrence the accused ought not to have been released on probation of good conduct and instead ought to have been punished with imprisonment, but now after 26 years of occurrence, it does not seem to be just to set-aside the order of release of the accused appellant on probation of good conduct and award him the sentence of imprisonment. I do not find any reason after 26 years of the occurrence to interfere with the impugned order of the learned trial court, whereby the accused appellant has been released on probation of good conduct under Section 4 of Probation of Offenders Act, 1958. 14. Even where the discretion under Section 4 of Probation of Offenders' Act was improperly exercised by the learned trial court, the High Court should not interfere after the period of probation had expired. In the instant petition, the accused Virendra Pal Singh was released on probation of good conduct keeping in view his age, character and antecedents with 12 the direction that he shall enter into a bond in the sum of Rs. 2000/- together with a surety of like amount to the satisfaction of the learned trial court with the stipulation to maintain peace and be of good behaviour and shall appear and receive the sentence when called upon to do so during the period of two years. The period of probation of two years expired 21 years back. Hence, on this ground also the order with regard to release the accused appellant on probation of good conduct cannot be interfered with. 15. For the reasons stated above both the criminal appeal no. 400/1984 filed by the accused appellant Virendra Pal Singh as also criminal revision no. 163/1987 filed by complainant fail and they being bereft of any merit stand dismissed. (MAHESH BHAGWATI),J. DK/-