Crl. Revision No. 262 of 2002 {1} In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 262 of 2002 Date of Decision:December 10, 2009 Sukhdarshan Singh and another ---Petitioners versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr. S.K.Bawa, Advocate, for the petitioners Mr.Abhishek Chautala, Asstt. Advocate General, Punjab Mr. A.K.Saini, Advocate, for Mr. G.S.Sandhu, Advocate, for the complainant. *** GURDEV SINGH, J. Petitioners-accused Sukhdarshan Singh and Jaswinder Singh @ Raju along with Bimla Devi, were tried by Judicial Magistrate Ist Class, Barnala, and were convicted for the offences under Sections 323 and 324 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for a period of one year and for a period of two years respectively. They filed an appeal against that conviction and sentence but was dismissed qua the petitioners but was allowed qua Bimla Devi, who Crl. Revision No. 262 of 2002 {2} was ordered to be released on probation by learned Additional Sessions Judge, Barnala. Thereafter, the petitioners have preferred the present revision petition against that judgment. Facts, in brief, are that on 22.3.1999, at about 5-00 p.m., Dhian Chand, complainant- injured, PW-2, was present in front of his house and at that time his nephew-Amarjit Singh, PW-3 was coming on a bi- cycle. When he reached near the house of Bimla Devi, she asked him not to pass in front of their house and would be stopped from passing through the same. The complainant tried to pacify Bimla Devi and convince her that it was a common passage but she started abusing him. At that time, Sukhdarshan Singh and Jaswinder Singh, petitioners-accused, who were washing their car, in the street, started abusing the complainant and his nephew. Thereafter, Sukhdarshan Singh brought a “Takua” from his house whereas, Jaswinder and Bimla Devi picked up iron rod and stick, respectively. Jaswinder Singh raised a lalkara exhorting his co-accused for finishing the matter once for all. Then Sukhdarshan Singh gave a blow with Takua on the head of Amarjit Singh, as a result of which he fell down. The second blow was given by that accused on the head of that injured itself. Sheela Devi, PW-4, and Baldev Singh also came to the spot and tried to get the injured released from the clutches of the accused. Thereupon, Bimla Devi gave a blow with the help of her stick on the person of Sheela Devi. She and Jaswinder Singh gave blows with their respective weapons on the person of Amarjit Singh, Dhian Chand and Sheela Devi. When Ram Lal, elder brother of the complainant reached at the spot, all the accused escaped from that place with their respective weapons. The injured were removed to Civil Hospital, Dhanaula, and were admitted at that place. Crl. Revision No. 262 of 2002 {3} They were examined by Dr. Gian Chand, PW-1, who found one injury each on the person of Amarjit Singh and Sheela Devi and six injuries on the person of Dhian Chand, which were detailed by him in the Medico Legal Reports, Ex, PB, PC and PD respectively. The matter was reported to the police regarding this occurrence. FIR Ex. PA/2 was recorded on the basis of the statement, Ex. PA of the complainant. The investigation was conducted by ASI Sanjeev Goel, PW-5, who went to the place of occurrence and prepared the rough site plan Ex. PF. Injuries on the persons of the injured were subjected to radiological examination, but no fracture was detected. After the completion of the investigation, the police report under Section 173(2) Cr.P.C. was submitted before the JMIC, who charged the accused for the offences under Sections 323, 324/34 IPC. They pleaded not guilty and claimed trial. To bring home the guilt of the accused, prosecution examined Dr. Gian Chand, PW-1, Dhian Chand,PW-2, Amarjit Singh, PW-3, Sheela Devi, PW-4, ASI Sanjeev Goel, PW-5. After the evidence was closed by the prosecution, the accused were examined by learned JMIC and their statements were recorded 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 innocence and false implication. They came out with the plea that a civil case was pending in the Court at Barnala and on that account, they have been falsely implicated. They were called upon to enter on their defence. They examined Amarjit Singh DW-1 and Harchand Singh, DW-2, in their defence. Crl. Revision No. 262 of 2002 {4} After hearing Additional Public Prosecutor for the State and learned defence counsel for the accused and going through the record of the case, learned JMIC convicted and sentenced the petitioners as aforesaid. The petitioners preferred an appeal against the conviction and sentence but the same was dismissed by learned Additional Sessions Judge. Notice of the revision petition was given to the State. I have heard learned counsel for the petitioners and Assistant Advocate General, Punjab, for the State and have carefully gone through the records of the case. Conviction and sentence of the petitioners, so recorded, has been assailed by learned defence counsel on the ground that the learned trial court and the learned Additional Sessions Judge committed an illegality while recording the conviction on the basis of the discrepant statements of alleged eye witnesses, which are at variance with the medical evidence. He also tried to contend that no motive has been put forward by the prosecution and in the absence of any motive to cause injuries, there was no question of any such injuries having been caused to the injured. He prayed for the acquittal of the petitioners and in the alternative, for grant of benefit of probation. On the other hand, it has been submitted by Assistant Advocate General, Punjab, that there is no material contradiction in the statements of the eye witnesses and merely on the ground that the ocular evidence is at some variance with the medical evidence, it cannot be concluded that the conviction of the petitioners could not have been recorded. It is the ocular evidence, which is to be given preference as compared to the medical evidence and there is nothing on the record to disbelieve that ocular Crl. Revision No. 262 of 2002 {5} evidence. The evidence, so produced by the prosecution, was duly scrutinized by the learned trial court as well as by the learned Additional Sessions Judge. The discrepancies so pointed out on behalf of the petitioners/accused were duly considered and both those courts came to the conclusion that those were not of such nature so as to disbelieve the testimony of the eye witnesses. No infirmity or illegality is being found in the reasoning of those courts. There cannot be re-appreciation of the evidence in the revision petition. No doubt, the medical evidence was found at some variance with the ocular evidence, but that cannot be made the sole ground for concluding that the finding of fact so recorded is incorrect or illegal. The medical evidence is in the form of an opinion and if the same is at variance with the ocular evidence, it is not be to concluded that no reliance is to be placed on the version put forward by the prosecution. It is only when the ocular evidence is totally contradicted by the medical evidence that, it can be said that court is not to base conviction of the accused on such like evidence. The finding of conviction so recorded by the lower courts, does not suffer from any illegality nor it can be said that the propriety required that such a finding should not have been recorded. No ground is made out for setting aside the conviction of the petitioners. Bimla Devi was allowed the benefit of probation whereas the same was not allowed to these petitioners-accused by the learned JMIC and the learned Additional Sessions Judge. No reasons were recorded for refusing the benefit of probation to the petitioners by the learned JMIC. Similarly, no reasons were recorded by the learned Additional Sessions Crl. Revision No. 262 of 2002 {6} Judge for refusing that benefit to the petitioners. According to Section 361 of Cr.P.C., they were required to record the reasons for refusing that benefit as the petitioners could have been dealt with under Section 360 of the Code. Jaswinder Singh-petitioner stated his age to be 24 years at the time of framing of charges against him and recording of his statement under Section 313 Cr.P.C. The charge was framed after one year of the occurrence, thus, he was only 23 years old at the time of the occurrence. Only simple hurt has been attributed to him. It was submitted by both these petitioners before the learned JMIC that they were poor persons and had never been convicted on any previous occasion. Keeping in view these facts, I think it expedient to release Jaswinder Singh-accused on probation, instead of sentencing him at once to any punishment. Accordingly, he is ordered to be released on probation, on his executing a bond in the sum of Rs. 5000/- with a surety in the like amount for the period of two years to the satisfaction of trial court for appearing and receiving the sentence as and when called upon to do so during that period and to keep peace and be of good behaviour in the meanwhile. No doubt, only simple injuries have been attributed to Sukhdarshan Singh, but those were caused with an instrument of cutting and on the head of the injured, which is very vital part of the body. Keeping in view the seat of those injuries and the weapon of offence used, I do not think it expedient to release him on probation and the sentence, so recorded, by the learned Judicial Magistrate Ist Class and upheld by learned Additional Sessions Judge is being maintained. This revision petition is disposed of accordingly. Crl. Revision No. 262 of 2002 {7} If, petitioner, Sukhdarshan Singh, is on bail, he be taken into custody immediately for undergoing the remaining part of his sentence. (GURDEV SINGH) JUDGE December 10, 2009 PARAMJIT