Crl. Rev. No. 850 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 850 of 2004 (O&M) Date of decision:- 10.1.2011 Bhim Singh ... Petitioner Versus State of Haryana ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Sandeep Kumar Yadav, Advocate, for Mr. Sharad Kumar Yadav, Advocate, for the petitioner. Gurdev Singh, J (oral) This revision petition has been preferred by Bhim Singh, petitioner/accused, against the judgment dated 20.3.2004 passed by Additional Sessions Judge, Rewari, vide which the appeal preferred by him against his conviction and sentence recorded by the Additional Chief Judicial Magistrate Rewari, was dismissed. This accused, along with his co-accused, was tried for the offences under Section 323, 325 read with Section 34 IPC for having voluntarily caused hurt and grievous hurt to Jai Narain, Surender and Vijay Pal regarding which occurrence FIR No. 119 dated 8.5.1993 was registered in Police Station Rewari, on the statement of Jai Narain – complainant, PW- 1. He came out with the version that on 2.5.1993 at about 6.30 PM, he was coming back to his house and when he reached near the house of Prabhu Dayal, suddenly Chet Ram came from his backside and gave a blow with his iron rod on his head as a result of which, he fell down. Then Bhim Singh- Crl. Rev. No. 850 of 2004 (O&M) -2- accused gave a blow with his iron rod on his hand. Raj – accused gave a blow with a pipe on his right shoulder and Daya gave a blow with his lathi on his left shoulder whereas Anita gave a blow with her lathi on the right side of his belley. His son Surender and nephew Vijay Pal came to the spot and made an effort to save him from the accused. Thereafter, all these accused started beating them. Anar Kaur, Samma and Meera came to the spot with lathis in their hands. Anar Kaur gave a blow with his lathi on his right knee and Meera gave a blow with her lathi on his left knee. Surender and Vijay Pal were also caused injuries by these accused. They were saved from the accused by Khem Ram and Karan Singh and were brought to the hospital where they were medically examined by the doctor. Injuries were found on their person which were the result of blunt weapons. Ruqqa was sent by the doctor about the admission of these injured in the hospital to the police station and on the receipt thereof Ganpat Ram, Head Constable, came to that place and recorded the statement of the complainant. After making endorsement upon the same, he sent that statement to the police station on the basis of which report was recorded in the DDR at Sr. No.7. Injuries on the person of the injured were subject to the radiological examination. Fracture of nasel bone of Surender Kumar and fracture of hand of right ulna of Jai Narain were found. After the receipt of the report of the radiologist, FIR was recorded on the basis of the report so recorded in the DDR. The investigating officer went to the spot and after inspecting the same prepared rough site plan with correct marginal reports. The records were collected by him from the hospital. In the course of investigation all the accused were arrested and after the completion thereof, the challan was put in against Crl. Rev. No. 850 of 2004 (O&M) -3- them before the Additional Chief Judicial Magistrate, who found sufficient grounds for presuming that they committed offences under Section 323, 325 read Section 34 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilf of the accused, prosecution examined Jainarain PW-1, Vijay Pal PW-2, Charan Singh PW-3 and Dr. R.K.Leekha PW-4. After the conclusion of the evidence of the prosecution, the accused were examined and their statements were recorded by the trial Court under Section 313 Cr.P.C. 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 false implication. They were called upon to enter on their defence. They examined, Dr. M.L.Kocher DW-1, Kailash Chand DW-2, Satbir Singh DW-3, Prabhu Singh DW-4 and Chet Ram DW- 5, in the defence evidence. After going through that evidence and hearing Assistant P.P for the State and learned defence counsel for the accused, the learned trial Court convicted the accused for the offences under Section 323, 325 read with Section 34 IPC. Anar Kaur, Anita, Meera and Sama were extended the benefit of probation of good conduct whereas Chet Ram, Daya Nand, Raj Pal and Bhim Singh were sentenced to undergo simple imprisonment for a period of 6 months under Section 323 read with Section 34 IPC and further sentenced to undergo simple imprisonment for a period of two years and to pay a fine of `6000/- each and in default thereof to undergo simple imprisonment for a period of two months for the offence under Section 325 Crl. Rev. No. 850 of 2004 (O&M) -4- read with Section 34 IPC. All these four convicts preferred the appeal, which was decided by Additional Sessions Judge, vide aforesaid judgment dated 20.3.2004. Raj Pal died during the pendency of the appeal. Chet Ram and Daya Nand were given benefit of probation of good conduct whereas the sentence so imposed upon the present petitioner – Bim Singh was modified to the following effect:- U/Section Sentence (S.I) Fine (`) Sentence in default of payment of fine (S.I) 323 IPC 6 months ----- ---- 325 IPC 1 Year 6,000/- 2 months I have heard learned counsel for both the sides. Learned counsel for the petitioner did not challenge the finding of conviction so recorded by the trial Court and affirmed by the appellate Court. He has submitted that when similarly situated accused had been granted the benefit of probation, the same benefit should have been extended to the present petitioner also. The offence under Section 325 IPC was not attributed only to the present petitioner, but was also to the other accused as they had also caused grievous hurt to the injured. He further submitted that the petitioner has stood protracted trial for a couple of years and is ready to suitably compensate the injured. He prayed that he be also released on probation. This prayer of learned counsel for the petitioner has been opposed by the learned State counsel, who has submitted that the petitioner was found guilty of causing grevious hurt and keeping in view the gravity of the offences and circumstances in which the same was committed, he is not entitled to the benefit of probation. Crl. Rev. No. 850 of 2004 (O&M) -5- Admittedly no previous conviction against the petitioner has either been alleged or proved by the prosecution. The offence under Section 325 is punishable with less then seven years of imprisonment. When similarly situated accused, who were also guilty of causing grevious hurt, were given the benefit of probation, the same should not have been refused to the present petitioner. He is standing his trial since the year 1993 and much water has flown since then. Keeping in view the nature of the offence and circumstances of the case and that the petitioner is the first offender. I think it proper and expedient to release him on probation instead of sentencing him at once to any punishment. Accordinlgy, the sentence so imposed upon him is set aside and he is ordered to be released on probation on his executing a bond in the sum of `10,000/- with a surety of the like amount for a period of two years to appear and receive the sentence as and when called upon to do so during that period and keep peace and be of good behaviour in the meanwhile. He is directed to pay a compensation of `25,000/- to Jai Narain for the grevious hurt so caused by him. The fine, if already deposit shall be adjusted towards that amount. The bonds are to be executed and the compensation/balance is to be deposited with the trial Court within a period of one month of the passing of this order. The revision petition is disposed of accordingly. The records be returned forthwith. January 10, 2011 (Gurdev Singh) tripti Judge