Crl. Revision No. 2109 of 2008 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 2109 of 2008 Date of Decision:August 25, 2010 Gurdial Singh ---Petitioner versus State of Punjab and others ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Amit Singh, Advocate, for Mr. Vikas Bahl, Advocate, for the petitioner Mr. Anter Singh Brar, Sr. DAG, Punjab Mr. Sarju Puri, Advocate, for respondents No. 2, 3, 5 and 6 *** GURDEV SINGH, J. Heard. Petitioner, Gurdial Singh, who got lodged FIR No. 221 dated 12.10.2005 under Sections 323, 324, 149 and 148 of the Indian Penal Code in Police Station Balachaur, has preferred this revision petition against the judgment dated 2.6.2008 passed by Additional Sessions Judge, Nawanshahr, vide which he maintained the conviction of Makhan Singh and Jasvir Singh, as recorded by SDJM, Balachaur, after the trial of those Crl. Revision No. 2109 of 2008 -2- accused-respondents in the said FIR and while setting aside the sentence imposed upon them by the trial court, released them on the probation of good conduct and also directed them to pay Rs. 10,000/- each as compensation to this petitioner/complainant. It was on 12.10.2005, that the complainant-PW-1 was sitting near the water tank of his electric tube well and at that time Tarsem Singh, PW-2, was with him. They were talking to each other when at about 12.10. p.m., the respondents/accused accompanied by four other persons came there on a motor vehicle make Tata Sumo. At that time Jasvir Singh was having a sword in his hand. All these accused exhorted Jasvir Singh to attack him. Thereafter that accused gave a blow with a sword from the sharp side and when he tried to ward off that blow with the help of his left hand, received an injury on the palm of that hand. One of the accused gave a blow with his sota on his head. When alarm was raised by Tarsem Singh, all those accused escaped in the said vehicle with their weapons. He was removed to Civil Hospital, where he was medically examined by I.M.Kataria, PW-4, who found two injuries on his person and the same were detailed in the Medico Legal Report. On the receipt of the information, Joginder Singh, ASI, PW-5, came to the hospital and recorded his statement, Ex. P-8 and on the basis thereof FIR Ex. PW-5/B was recorded. The ASI went to the place of occurrence and after inspecting the same, prepared the rough site plan with correct marginal notes. In the course of investigation, the respondents/accused were arrested. After the completion thereof, the challan was put in before the SDJM, Balachaur, who found sufficient grounds for presuming that the accused committed the offences punishable under Sections 323, 324/149 and 148 IPC. They were charged accordingly, Crl. Revision No. 2109 of 2008 -3- to which they pleaded not guilty and claimed trial. To bring home the guilt of the accused, prosecution examined Gurdial Singh complainant, PW-1, Tarsem Singh, PW-2, Sansar kaur, PW- 3, Dr. I.M.Kataria, PW-4 and ASI Joginder Singh, PW-5. After the close of the prosecution evidence, the accused were examined and their statements were recorded under Section 313 Cr.P.C. All the 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 innocence and false implication. They were called upon to enter on their defence, but they did not produce any evidence in their defence. After hearing learned Asstt. Public Prosecutor for the State and learned defence counsel for the accused and going through the records, SDJM, Balachaur, convicted the accused for the aforesaid offences and sentenced them to undergo rigorous imprisonment for a period of one years and to pay a fine of Rs. 500/- each and in default thereof to undergo rigorous imprisonment for a period of 15 days under Section 148 IPC. He further sentenced Jasvir Singh, accused, to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/- and in default thereof to undergo rigorous imprisonment for a period of 15 days under Section 323 IPC and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one month under Section 324 IPC. Makhan Singh, accused, was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 500/- and in default thereof, to undergo rigorous imprisonment for a period of 15 days Crl. Revision No. 2109 of 2008 -4- under Section 323 read with Section 149 IPC and to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- and in default to undergo rigorous imprisonment for a period of one month under Section 324 read with Section 149 IPC. The sentences of imprisonment were ordered to run concurrently. The accused preferred an appeal against their conviction and sentence. The conviction was maintained whereas the sentence was set aside. They were ordered to be released on probation of good conduct by Additional Sessions Judge, Nawanshahr, vide his judgment dated 2.6.2008. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that keeping in view the nature of the injuries and the seat thereof and the circumstances in which the same were cused, the learned Appellate Court was not justified to release the accused on probation. The injuries were caused by the accused with a motive as Makhan Singh-accused was arrayed as an accused in a murder case in which the complainant was cited as a witness and he did not want that he should appear as such in the Court. With that motive the injuries were caused to the complainant. He prayed that the order passed by the learned Appellate Court be set aside and the sentence so imposed upon the accused by the trial court, be restored. On the other hand, it has been submitted by learned counsel for the respondents that there is no ground for interfering in the order of the learned Appellate Court, as sound reasons have been recorded while extending the benefit of probation to the accused. They were the first offenders and keeping in view the nature of the offences, the age and the other antecedents of the accused, they were ordered to be released on Crl. Revision No. 2109 of 2008 -5- probation. The complainant never came out with any motive when he got lodged the FIR. He specifically stated in his statement, Ex. PA, on the basis of which the FIR was recorded, that there was no motive on the part of the accused to cause injuries to him and that he did not know why the injuries were so caused. It was only during the trial that he came out with the statement that the injuries were caused to him as he was a witness in the murder case, in which Makhan Singh was accused. That was an improvement made by him in the Court and he was duly cross examined on that aspect of the case. No doubt, there is no specific confrontation on that aspect of the case, but it was suggested to him in so many words that no such statement was made by him before the police. When such is the case, that motive cannot be taken into consideration while deciding the present revision petition. The learned Appellate court could have released the accused on probation of good conduct after taking into consideration their age, character, antecedents and the circumstances in which the offences were committed. After proper application of the mind, the order of probation was passed. It cannot be said that the circumstances in which the injuries were caused to the complainant, were such that it was not expedient to release the accused on probation. As the accused were convicted for the offences, which were punishable with imprisonment for less than seven years, so the trial court was required to record the special reasons for not extending the benefit of probation as required under Section 361Cr.P.C. No such reasons were recorded. It is the reformatory theory which is taking the place of punitive Crl. Revision No. 2109 of 2008 -6- theory. In the first instance, the accused are to be given an opportunity to reform themselves. It is possible only if the benefit of probation is granted. Simple injuries were caused by the accused and keeping in view the fact that they were not previous convicts, at the time the order of sentence was passed, and that they were young boys of the age of 23/25 years, I do not find any illegality in the order passed by the Appellate Court. There is no merit in this revision petition and the same is hereby dismissed. (GURDEV SINGH) JUDGE August 25, 2010 PARAMJIT