Crl. Revision No. 3289 of 2009(O&M -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 3289 of 2009(O&M) Date of Decision:February 03, 2010 Baljit Singh and others ---Petitioners versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.J.S.Bedi, Advocate, for the petitioners Mr.Raja Sharma, Assistant Advocate General, Haryana *** GURDEV SINGH, J. The petitioners-accused preferred this revision against the judgment dated 8.12.2009 passed by learned Sessions Judge, Jind, vide which he dismissed the appeal preferred by them against the judgment dated 11.9.2008 passed by Judicial Magistrate Ist Class, Jind, vide which they were convicted for the offences under Sections 323, 324 and 325/34 of the Indian Penal Code(hereinafter referred to as “IPC”) and were sentence to undergo rigorous imprisonment for a period of one year under Section 324/34 IPC and to under go rigorous imprisonment for a period of two years Crl. Revision No. 3289 of 2009(O&M -2- and to pay a fine of Rs. 500/- each and in default thereof to undergo imprisonment for a period of two months under Section 325/34 IPC. As per the prosecution version, cow belonging to Phulla Ram- complainant entered in the agricultural land of Mauji Ram on 26.8.2003. On that account abuses were exchanged between the wife of the complainant and daughter-in-law of Mauji Ram. On 27.8.2003 at about 10.30 a.m., the complainant was present in front of the hut near his tube well. Suddenly, Manoj Kumar, armed with gandasi whereas Mauji Ram, Baljit Singh and Dhola armed with lathis appeared on the scene. Mauji Ram raised a lalkara exhorting his co-accused to teach a lesson to the complainant as he caused entry of his cow in their fields. The complainant tried to enter the hut but was dragged outside by Mauji Ram. Then Baljit Singh gave a blow with lathi on his right hand, Manoj Kumar gave two gandasi blows on the head of the complainant whereas Dhola-accused gave blow with lathi on the left side of his ribs. The complainant was saved from the accused by Rajesh and Sunehri. He was medically examined in C.H.C., Alewa on the same date. The efforts were made to arrive at a settlement but no such settlement can be arrived at. On the next day, the complainant was shifted to General Hospital, Jind. The matter was reported to the police and FIR No. 95 dated 3.9.2003 was registered against the accused under Sections 324, 325/34IPC. After completion of the investigation, challan was presented against the accused. Judicial Magistrate Ist Class charged them for the offences under Sections 324 and 325 read with Section 34 IPC, to which they pleaded not guilty and claimed trial. To prove their guilt, the prosecution examined Phulla Ram, PW-1, Rajesh,PW-2,Dr. M.L.Kochar Crl. Revision No. 3289 of 2009(O&M -3- PW-3 and ASI Kishori Lal, PW-4 and and Dr. Rajesh Garg, PW-5. After the evidence was closed by the prosecution, the accused were called and their statements were recorded under Section 313 Cr.P.C. All the incriminating circumstances appeared 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 that injuries were inflicted on the person of Mauji Ram by Phulla and his son in connection with the tampering with electricity wires and they were falsely involved in this case. They were called upon to enter on their defence but they did not produce any evidence in their defence. After hearing the Assistant PP for the State and learned defence counsel for the accused, learned JMIC convicted and sentenced the accused vide judgment dated 12.9.2008. The accused preferred an appeal against that judgment, which was dismissed by learned Sessions Judge, vide the aforesaid judgment. Notice of the revision was given to the State and the same has been contested on its behalf by Sh.Raja Sharma, Assistant Advocate General, Haryana. I have heard learned counsel for both the sides. At the time of arguments, learned counsel for the petitioners only challenged the sentence imposed upon the petitioners and has submitted that they were the first offenders and brought to the notice of the Magistrate mitigating circumstances but were not released on probation. The reasons recorded by the Magistrate cannot be held to be as special reasons for not allowing the benefit of probation to them. He prayed that sentence imposed upon the petitioners be set aside and they be released on Crl. Revision No. 3289 of 2009(O&M -4- probation. On the other hand, it was contended by the learned State counsel that the Magistrate recorded sound reasons for disallowing the benefit of probation to the petitioners and there is no ground to differ with the reasoning recorded by him. The Magistrate did record the reasons for disallowing the benefit of probation to the petitioners. However, the fact remains that no previous conviction was proved against any of them by the prosecution. The Magistrate first recorded the sentence against them by keeping in view their age, antecedents and family circumstances. It was only thereafter that he recorded the reasons to the effect that the petitioners did not deserve leniency. Those reasons should have been recorded before passing the order of sentence. The age, antecedents and family circumstances so disclosed by the petitioners, were mitigating and not aggravating circumstances. They had stated that they have got aged parents and were only bread winners of their families. The courts are to resort to Reformatory Theory so as to give effect to the provisions of Section 360 Cr.P.C. and Probation of Offenders Act, 1958. Keeping in view the fact that the petitioners are not previous convicts and that they are the only bread-winners of their families, I think it proper and expedient to release them on probation in stead of sentencing them at once to any punishment. They are, therefore, ordered to be released on probation under Section 360 of the said Code on their executing personal bonds in the sum of Rs. 5000/- each with one surety in the like amount in each case, to the satisfaction of the Judicial Magistrate/ trial court, for a period of two years to appear and receive the sentence as and when called upon to do so during Crl. Revision No. 3289 of 2009(O&M -5- that period and keep peace and be of good behavior, in the meanwhile. Once the court resorts to the Reformative Theory, it is also to care for the victim. There was fracture of the bone of the injured and she must have obtained medical treatment. She must be under pain and sufferings. She is to be suitably compensated for the injuries so caused to her. The petitioners are directed to pay Rs. 75,000/- as compensation to the injured. They shall be liable to pay this compensation jointly and severally. The fine, if already deposited, shall be adjusted towards that compensation. The revision is disposed of accordingly. (GURDEV SINGH) JUDGE February 03, 2010 PARAMJIT