High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 151 of 2010.

Reserved on 23.9.2016

Date of Decision: 28.10.2016.

______________________________[_____________________________

Lakshmi Singh ……...Petitioner.

Versus

State of H.P. ..……....Respondent.

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting

1

? Yes

For the petitioner: Ms. Anu Tuli, Advocate.

For the respondent: Mr. Rupinder Singh Thakur, Additional

Advocate General, with Mr. Rajat Chauhan,

Law Officer.

________________________________________________________

Sandeep Sharma, J.

The present criminal revision petition filed under Section 397

read with Section 401 of the Cr.PC, is directed against the judgment

dated 21.04.2010, passed by the learned Sessions Judge, Shimla, HP, in

Criminal Appeal No. 13-S/10 of 2008, affirming the judgment of

conviction and order dated 27.2.2008 and 3.3.2008 respectively,

passed by the learned Judicial Magistrate Ist Class, Theog, District

Shimla, HP, in Case No. 279-1 of 2006, whereby the accused-petitioner

has been sentenced to undergo rigorous imprisonment for a period of

two years for commission of offence punishable under Section 452 IPC

and to pay fine of Rs. 2000/- and in case of default, to further undergo

Whether reporters of the Local papers are allowed to see the judgment? Yes.

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simple imprisonment for three months. The petitioner-accused has been

further sentenced to undergo rigorous imprisonment for six months for

the commission of offence punishable under Section 323 of IPC and for

period of six months for the commission of offence punishable under

Section 506 of the Indian Penal Code.

2. Briefly stated facts as emerged from the record are that

the complainant (Krishan Singh Hetta) telephonically informed the

police of Police Station Theog that accused (Lakshmi Singh) gave

beatings to his mother Smt. Savitri Devi, PW-2. On the aforesaid

information PW-11, H.C. Vijay Kumar along with Constable Narinder

Kumar PW-4 visited the spot. On reaching the spot, the complainant

gave a written complaint, Ext.PW-1/A stating therein that on 2.7.2006,

he was present in his house and was cooking vegetables in the kitchen.

When at that time, his mother was removing the grass from the

courtyard, accused carrying ‘danda’ came from the path leading to

village Kanog just below his courtyard and started exchanging hot

words with his mother. The complainant further stated that the

accused asked about the whereabouts of the complainant and asked

her to call her son (complainant) to come outside and proclaimed to

kill him. The mother of the accused tried to pacify the accused and

requested him to go back to his house but accused forcibly trespassed

in the courtyard. He also picked up a stone in his hand from the path

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and at that time, the complainant was seeing the accused from the

window of the kitchen. The mother of the complainant tried to stop the

accused, but the accused hit the stone on left leg of his mother, as a

result of which, she came inside the kitchen. Thereafter, accused

forcibly came inside the kitchen and ran towards the complainant in

order to give him beatings. However, mother of the complainant

came in between accused and the complainant. The accused firstly

threatened that he would kill the mother of the complainant and gave

blow of danda on the left side of the head of the mother of the

complainant, as a result of which, blood started oozing out of her head.

The accused fled away from the spot. On the basis of aforesaid

complaint Ext.PW-1/A, police lodged FIR Ext.PW-6/A at police Station

Theog. I.O. prepared the spot map Ext.PW-9/A and also took into

possession danda, Ext.P-1, blood stained Jacket, Ext.P-2, vide seizure

memo, Ext.PW-2/A in the presence of witnesses. Police also got the

mother of the complainant medically examined. PW -3, Dr. Nalnish

Sharma medically examined PW2, Savitri Devi and issued MLC Ext.PW-

3/A. PW-3 also advised X-ray examination of her skull and X-ray Form is

Ext.PW3/B. Police also recorded the statements of witnesses under

Section 161 of the Cr.PC and after completion of investigation,

presented the Challan before the competent court of law.

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3. Learned Judicial Magistrate, Ist Class, Theog, District Shimla,

after satisfying itself that prima facie case exists against the accused

person put a notice of accusation, to which he pleaded not guilty and

claimed trial. Learned trial Court on the basis of evidence adduced on

record by the prosecution, found the accused guilty of having

committed offences under Sections 452, 323 and 506 of the IPC and

convicted and sentenced him as per description already given above.

4. The present petitioner-accused being aggrieved with the

judgment of conviction passed by the learned trial Court, filed appeal

under Section 374 (3)(a) of Cr.PC before the Court of learned Sessions

Judge, Shimla, HP, who vide judgment dated 21.4.2010, dismissed the

appeal. Hence, this criminal revision petition before this Court.

5. Ms. Anu Tuli, Advocate, representing the petitioner

vehemently argued that the impugned judgments of conviction and

sentence recorded by the Courts below are illegal, unjust and contrary

to law and facts as applicable to the facts and as such, same deserve

to be quashed and set-aside. Ms. Tuli, further contended that bare

perusal of the judgment passed by the Courts below clearly suggests

that learned courts below while convicting and sente ncing the

petitioner accused have not dealt with evidence led on record by the

prosecution in its right perspective, rather judgments are based upon

the conjectures and surmises and as such, same are liable to be

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quashed and set-aside. Counsel representing the petitioner strenuously

argued that there are material contradictions with regard to time of

occurrence in the complaint admittedly made by the PW1 that the

complainant while making written complaint to the police Ext.PW1/A

disclosed 6:45 AM on 2.7.2006 being time of occurrence as has been

recorded in FIR. Whereas, while deposing as PW1 before the learned

trial Court, the complainant disclosed the time of occurrence as

10.45AM. Similarly, Ms. Tuli, also invited attention of this Court to the

statement of PW2, who stated that time of occurrence, was 11 AM. Mr.

Tuli further contended that PW9 Vijay Kumar HC in his cross

examination admitted that as per the challan, the occurrence took

place at 6:45AM. Ms. Tuli forcefully contended that since there were

material contradictions qua the time of occurrence, courts below

ought to have exercised great caution while relying upon the

statements of the these PWs but both the courts below failed to take

into consideration the material evidence of the case as a result of

which great injustice has been caused to the petitioner. Further stated

that Courts below failed to appreciate that there is delay of more than

six hours in informing the matter to the police if the time of occurrence

is taken to be 6:45. She further stated that accused has been falsely

implicated by the police after due deliberations with the complainant

who is admittedly an advocate. She also stated that there is ample

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evidence on record to demonstrate that there was c ivil litigation

between petitioner-accused and the complainant and as such, their

version could not be relied upon solely while convicting/sentencing the

petitioner, in the absence of some independent witnesses. She also

stated that it has specifically come in the statement of I.O. i.e. PW-9

that there are number of houses in the vicinity but for the reasons best

known to the prosecution, no independent witness from the vicinity was

cited as PW to prove their case, which omission clearly indicates that

story put forth on behalf of the prosecution was untrustworthy and

could not be relied upon in the absence of independent witnesses.

While concluding her arguments, Ms. Tuli forcefully contended that

both the courts below heavily placed reliance upon the testimonies of

PWs No. 1, 2 and 7, perusal of which suggests that they are full of

material contradictions with regard to time and manner of occurrence

and as such, both the courts below have fallen in grave error while

recording the conviction of the accused that too o n the basis of

appreciation of aforesaid witnesses, who were admittedly interested

witnesses? She further contended that since th ere was no

independent witness who had seen the alleged incident of beating by

the accused, courts below were expected to exercise due care and

caution while dealing with the statements given by PWs 1, 2 and 7, who

are closely related to each other. She stated that prosecution was not

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able to connect present petitioner accused with the offence so

alleged against him. Ms. Tuli, also invited attention of this Court to the

statements of PW3 and PW4 who admittedly in their cross-examination

stated that stone shown to them did not bear FIR number and did not

contain any blood stains. She also stated that statement of Doctor PW3

itself suggests that injuries stated in the MLC could be caused by fall

and as such, courts below had no occasion to record conviction of the

petitioner -accused on the basis of medical evidence adduced on

record by the prosecution. Lastly Ms. Tuli argued that bare perusal of

the evidence on record as well as judgment passed by the courts

below suggests that prosecution was not able to prove the case

against the petitioner beyond reasonable doubt and petitioner ought

to have been acquitted by the courts below especially in view of the

material contradictions in the statements of PWs 1, 2 and 7. She also

stated that if it is presumed that petitioner has been rightly held guilty of

having committed offences, in that eventuality also, punishment

awarded by the courts below is on higher side and excessive. She

stated that as per medical evidence adduced on record PW2 on ly

suffered simple injuries and by no stretch of imagination, accused

could be awarded punishment.

6. It is also contended on behalf of the petitioner that both

the Courts miserably failed to appreciate that present petitioner was

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entitled to the benefit of Section-4 of the Probation of Offenders Act,

1958 since he was first offender and there was no case pending against

him in any court of law. In the aforesaid background, Ms . Tuli,

Advocate appearing for the petitioner prayed that this petition may be

allowed and judgments passed by the Courts below be quashed and

set-aside.

7. Per contra, Mr. Rajat Chauhan, Law Officer, representing

the State supported the impugned judgment passed by the courts

below. Mr. Chauhan vehemently argued that bare perusal of the

impugned judgments suggests that same are based upon the correct

appreciation of the evidence available on record and prosecution has

been able to prove its case beyond reasonable doubt. He further

contended that in the given facts and circumstances of the case, no

interference, whatsoever, of this Court, is warranted, where it stands

proved on record that accused gave beatings to the mother of the

complainant. He also reminded this Court that this Court has very

limited powers while exercising its revisionary powers under Section 397

of the Cr.PC to re-appreciate the evidence when it stands duly proved

on record that the courts below have dealt with each and every

aspect of the matter very meticulously. In this regard, reliance is

placed upon the judgment passed by Hon’ble Apex Court in case

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State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999)2

Supreme Court Cases 452, wherein it has been held as under:-

“In its revisional jurisdiction, the High Court can call for and

examine the record of a ny proceedings for the purpose of

satisfying itself as to the correctness, legality or propriety of any

finding, sentence or order. In other words, the jurisdiction is one of

supervisory jurisdiction exercised by the High Court for correcting

miscarriage of justice. But the said revisional power cannot be

equated with the power of an appellate court nor can it be treated

even as a second appellate jurisdiction. Ordinarily, therefore, it

would not be appropriate for the High Court to re-appreciate the

evidence and come to its own conclusion on the same when the

evidence has already been appreciated by the Magistrate as well

as Sessions Judge in appeal, unless any glaring feature is brought

to the notice of the High Court which would otherwise tantamount

to gross miscarriage of justice.”

8. I have heard learned counsel for the parties as well

carefully gone through the record

9. True, it is that this Court has very limited powers under

Section 397 Cr.PC while exercising its revisionary jurisdiction but in the

instant case, where accused has been convicted and sentenced, it

would be apt and in the interest of justice to critically examine the

statements of the prosecution witnesses solely with a view to ascertain

that the judgments passed by learned courts below are not perverse

and same are based on correct appreciation of the evidence on

record.

10. As far as scope of power of this Court while exercising

revisionary jurisdiction under Section 397 is concerned, the Hon’ble

Apex Court in Krishnan and another Versus Krishnaveni and another,

(1997) 4 Supreme Court Case 241; has held that in case Court notices

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that there is a failure of justice or misuse of judicial mechanism or

procedure, sentence or order is not correct, it is salutary duty of the

High Court to prevent the abuse of the process or miscarriage of

justice or to correct irregularities/incorrectness committed by inferior

criminal court in its judicial process or illegality of sentence or order. The

relevant para of the judgment is reproduced as under:-

8. The object of Section 483 and the purpose behind conferring

the revisional power under Section 397 read with Section 401,

upon the High Court is to invest continuous supervisory jurisdiction

so as to prevent miscarriage of justice or to correct irregularity of

the procedure or to mete out justice. In addition, the inherent

power of the High Court is preserved by Section 482. The power of

the High Court, therefore, is very wide. However, the High Court

must exercise such power sparingly and cautiously when the

Sessions Judge has simultaneously exercised revisional power

under Section 397(1). However, when the High Court notices that

there has been failure of justice or misuse of judicial mechanism

or procedure, sentence or order is not correct, it is but the salutary

duty of the High Court to prevent the abuse of the process or

miscarriage of justice or to correct irregularities/ incorrectness

committed by inferior criminal court in its judicial process or

illegality of sentence or order.”

11. Perusal of the evidence led on record by the prosecution

clearly indicates that on 2.7.2006, petitioner-accused gave Danda

blow on the head of the mother of the complainant. Prosecution with

a view to prove its case, beyond reasonable doubt, examined as many

as nine witnesses. PW1 K.S. Hetta, stated before the learned trial Court

that he is an advocate by profession and is resident of village Sariana.

He further stated that on 2.7.2006 at about 10:45, he was cooking the

vegetables in his kitchen and below his courtyard, there is a path

leading from village Sariana to village Kanog. He further stated that

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accused came there having stick in his hand and asked his mother that

where is your son, who is an advocate? Call him out and I will kill him.

His mother asked the accused to go to his home but accused

trespassed into the courtyard of his kitchen. He picked up a stone and

tried to come inside the kitchen but his mother obstructed the

accused. When accused pelted a stone on Savitri Devi (mother of the

complainant) on her left leg, she came inside the kitchen and accused

also trespassed into the kitchen, then accused tried to give a blow on

the person of the complainant, but his mother came between them to

rescue the complainant. He further stated that accused said that he

will first kill her, then he will kill her son and then gave stick blow on the

head of his mother, then accused threw the stick in the kitchen and ran

away from the spot, as a result of which, blood started oozing out from

her head and her jacket smeared with blood. He stated that thereafter

he telephonically informed the police and filed the complaint Ext.PW-

1/A. He further stated that his mother handed over stick Ext.P1 and

jacket Ext.P2 to the police, which were taken into possession vide

Memo Mark-B. He also stated that his mother was medically examined.

He also admitted before the Court that stick is the same with which the

accused gave beating to the mother and she was wearing the same

jacket. He in his cross examination admitted that incident occurred at

about 10:15 AM and there are about 8 to 10 houses in the village

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Sariana. He also admitted the suggestion put to him that there was

litigation with the accused person, but he qualified that they are not

inimical and there was an allegation against his brother to kill the

nephew of the accused person. He also admitted that there is case

pending in the Court of SDM, Theog against the accused. PW1 stated

that he tried to inform the police at about 10:45 am, but telephone

lines were busy, therefore, he could not inform police at 10:45 am.

However, he specifically denied the suggestion put to him that he

falsely instituted case against the accused person due to enmity. He

also denied the suggestion that his mother was not given beatings by

the accused. He also denied that the mother of the complainant

sustained injuries by way of fall.

12. Similarly, PW2 Savitri Devi, while deposing before the Court

below corroborated the version put forth on behalf of PW1, wherein she

stated that on 2.7.2006, at about 10:45 am, she was picking up the

grass in her courtyard. She also stated that accused (present in court)

came in that path, holding a stick in his hand and threatened her to

call her son out and he wanted to kill him. She tried to pacify the

matter, but the accused picked up the stone and pelted the same on

her knee. Thereafter, she went inside her kitchen, but accused

followed her and trespassed in the kitchen. She further stated that

when accused made an attempt to beat her son, she came in

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between the accused and the complainant but accused stated that

he will kill her prior to her son and then accused gave a blow of stick on

her head., as a result of which, blood started oozing out and her jacket

was smeared with blood. She further stated that the matter was

informed to the police and police came on the spot. She handed over

the stick and jacket to the police which were taken into possession vide

memo Ext.PW-2/A. In her cross-examination she stated that stone was

small and it was pelted at a distance of 4-5 feet. The stone was not

taken into possession by the police. She stated that her son informed

the police at about 11:45 am telephonically. She stated that she was

beaten with stick from the close distance. She also admitted in her

cross-examination that she is having litigation with the accused and

there is no inimical relationship with the accused. Close scrutiny of

aforesaid PWs, who were admittedly eye witnesses to the alleged

incident suggests that on 2.7.2006, petitioner forcibly entered into the

premises of the complainant and gave danda blow on the head of the

PW2, as a result of which, she suffered injury on her head.

13. Careful perusal of entire version put forth on behalf of

these PWs clearly suggests that they supported the version of each

other and there are no contradictions, if any, with regard to time as

alleged by the petitioner accused. Both the PWs specifically stated

that on 2.7.2006, at about 10:45 am, present petitioner forcefully

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entered the premises of the complainant. Both the PWs unequivocally

stated that since at that relevant time, telephone line was busy police

could only be informed at 11:45 AM. Though counsel representing the

petitioner-accused by referring to the Ext.PW-1/A made an attempt to

demonstrate that complainant had disclosed to the police that

incident occurred at 6:45AM but interestingly, no suggestion worth the

name was put to either of the aforesaid PWs by the defence that

initially, they had reported to the police that incident occurred at 6:45

am, in the morning. Apart from above, there is no attempt on the part

of the defence to confront aforesaid PWs with the timing got recorded

by the complainant in written complaint Ext.PW-1/A, where he

allegedly disclosed time at 6:45 am. Close scrutiny of cross examination

conducted on these material prosecution witnesses nowhere suggests

that defence was able to shatter their testimony, which otherwise

appears to be trustworthy. Both the PWs have been very very candid

specific and consistent while narrating the sequence of events

allegedly occurred at the time of the incident. Since both the PWs

categorically stated that incident occurred at 10:45 am and matter

was reported to police at 11:45, this Court sees no force in the

contention put forth on behalf of the counsel representing the

petitioner that there were material contradictions qua the timing given

by both the PWs, rather, this Court after perusing the entire

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examination-in-chief as well as cross-examination conducted on these

PWs, is compelled to conclude that the statements of both the PWs is

confidence inspiring and they fully corroborate the version put forth by

each other.

14. True, it is that both the PWs in their cross examination and

examination-in-chief admitted that litigation is pending in the court of

law inter-se parties but interestingly, nothing was placed on record by

the petitioner-accused in support of aforesaid claim. Similarly, defence

was not able to shatter testimonies of PWs, where they categorically

stated that the petitioner accused forcefully trespassed into the

premises of the complainant and gave beatings to PW2.

15. Apart from above, PW3, who medically examined PW2

and issued MLC Ext.PW-3/A stated that injuries stated in the MLC are

simple in nature and duration is less than six hours. As per record, PW2

was examined by PW3 at 2:30 pm, mean ing thereby, she was

examined within six hours of alleged occurrence i.e. 10.45 am Since Dr.

specifically stated that duration of injury is less than six hours and there is

possibility that injury can be caused with the stick and by falling, both

the courts below rightly came to conclusion that prosecution was able

to prove on record by leading cogent and convincing evidence duly

supported by medical evidence that Savitri Devi was given beatings by

the present petitioner accused. Moreover, PW3 in cross-examination

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admitted that it is possible that injury No.1 can be caused with the stick

and injury No.2 can be caused by falling on the stone, which itself

corroborates the version put forth on behalf of PW1 and 2 that

petitioner accused gave danda blow on the head of the mother of the

complainant.

16. PW7 Jeet Ram also stated that his house is on the back

side of the house of PWs 1 and 2. He stated that on 2.7.2006 at about

10:45 am, he heard the noise of crying upon which he went on the lintel

and witnessed that accused was asking PW2 about the whereabout s

of the complainant, who is an advocate. He has stated that he came

back and after some time when he again heard the noise of crying, he

proceeded to the place of the occurrence , whereas accused went

towards the ‘ghasni’. He stated that PW2 was weeping in the kitchen

and blood was oozing out of her head. Though, this witness was

declared hostile but in his cross examination by learned prosecutor, he

specifically admitted that when PW2 proceeded inside the kitchen,

accused was holding the danda in his hand and upon the hearing

cries of PW2, he again went inside the kitchen. He also admitted that it

was disclosed by PW2 that the accused h ad given beatings with

danda. He also stated that he had identified the Danda with which

the injury was caused and same was taken into possession by the

police. This witness was declared hostile but in his cross examination he

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also corroborated the version put forth on behalf of PW1 and PW2 that

when PW2 proceeded inside the kitchen, accused was holding danda

in his hand and he further admitted that when he went inside the

kitchen, it was disclosed by PW2 that accused had given her beating

with the danda. He also stated that he had identified the danda with

which the injury was caused by the accused upon the PW2 and same

was taken into possession by the police. Though, it was urged on

behalf of the petitioner that no reliance, if any, could be placed upon

the version put forth on behalf of PW7 because admittedly incident

had not occurred in his presence but close scrutiny of statement given

by PW7 establishes the presence of the petitioner-accused in the

kitchen of the complainant as well as mother of the complainant, to

whom he gave danda blow. It also emerged from his statement that

immediately after occurrence PW2 informed PW7 that injury has been

caused on her head by the petitioner accused. PW7 categorically

admitted in his cross examination that when PW2 entered inside the

kitchen, accused carrying danda in his hand also entered into the

kitchen. He also admitted that when he heard cries, he went in the

kitchen and it was disclosed to him that accused had given beating

with danda to her. Similarly, he also identified the danda, which was

being carried by the accused in his hand. Hence, this Court sees no

illegality and infirmity in the judgment passed by the courts below ,

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where they came to conclusion that PW7 also supported the case of

the prosecution.

17. Similarly, this Court with a view to ascertain the

genuineness and correctness of the argument having been made by

the counsel appearing for the petitioner that in FIR, timing was got

recorded as 6:45 am, perused FIR, perusal whereof clearly suggests that

time of occurrence has been stated as 10:45 am, as have been stated

by both the PWs (PW1 and PW2).

18. At the cost repetition, it may be pointed out that in cross

examination both the PWs were not confronted by the defence with

regard to the timing. Since no suggestion qua the timing of 6:45 was

ever put to these PWs, both the courts below rightly relied upon the

statements of PW1 and PW2, where they unequivocally stated that the

time of occurrence was 10:45 am. Hence this Court has no hesitation

to conclude that prosecution was able to prove beyond re asonable

doubt that occurrence took place at about 10:45 am and there is no

illegality and infirmity in the judgment passed by the courts below.

Though, defence by putting suggestion in the cross-examination made

an attempt to demonstrate that there is litigation pending in the courts

between them and he was falsely implicated but interestingly, no

evidence was led on record to suggest that the injury suffered by PW2

was not inflicted by him, whereas prosecution by way of leading

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cogent and convincing evidence was able to prove on record that the

petitioner-accused caused injury on the head of the PW2. PW3 in his

cross-examination specifically stated that injury could be possible by

stick and similarly, presence of accused on the spot, has not been

disputed at all, rather same stands proved in view of the statement

given by PW7. Hence, this Court has no reason to interfere with the

well reasoned judgments passed by the courts below which otherwise

appear to be based upon the correct appreciation of the evidence

adduced on record by the prosecution.

19. Faced with this situation, counsel representing the

petitioner prayed that if it is presumed that injury, which is admittedly

simple in nature was caused by the petitioner-accused by inflicting

danda on the head of PW2, punishment awarded by the court being

excessive and on higher side needs to be modified. She further stated

that the petitioner being first offender also deserves to be given benefit

of Section-4 of the Probation of Offenders Act keeping in view his being

first offender. Ms. Tuli, also stated that mitigating circumstance in this

case is that approximately, more than ten years have passed after

happening of that incident and eight years have been passed after

passing of the judgment of conviction dated 27.2.2008. The accused

petitioner has already suffered much agony during the pendency of

the appeal in the court of learned Sessions Judge Shimla (H.P.), as well

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as in High Court of Himachal Pradesh. In support of the aforesaid

argument, learned counsel for the petitioner-accused also invited the

attention of this Court to the judgment passed by this Hon’ble Court in

Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 58, wherein

it has been held as under:

“9. The only mitigating circumstance that appears to be there is

that the time gap of about six years between the date of

occurrence as well as the date of decision of this revision

petitioner. During this entire period sword of present case

looming over the head of the petitioner was always there. That

being so, this court is of the view that instead of sending the

petitioner to jail as ordered by the courts below, he is given the

benefit of Section 4 of the Probation of Offenders A ct.

Accordingly, it is ordered that he shall furnish personal bond in the

sum of Rs. 5,000/- to the satisfaction of the trial Court within a

period of four weeks from today to keep peace and to be of

good behavior for a period of one year from the date of

execution of the bond before the court below as well as not to

commit any such offence. In addition to being given benefit of

Section 4 of the Probation of Offenders Act, petitioner is further

directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh

and Dilbagh Singh injured as compensation. Shri R.K. Gautam

submitted that this amount of compensation be deposited with

the trial Court on or before 31.8.1997, who will thereafter pay the

same to said persons.”

20. In this regard, reliance is also placed upon Hon’ble Apex

Court judgment Ramesh Kumar @ Babla versus State of Punjab 2016 AIR

(SC) 2858, wherein it has been held as under:

“7. Accordingly the appeal is allowed in part by converting

appellant’s conviction under Section 307 IPC to one under Section

324 IPC. On the question of sentence, it is pertinent to note that

the occurrence took place in 1997. In his statement under Section

313 of the code of Criminal Procedure the appellant gave his age

in 2002 as 36 years. He claimed that he and others went to the

place of occurrence on getting information that his brother

Sanjay Kumar was assaulted by Ramesh Kumar (Complainant).

He brought his brother to Police Station and lodged a report. As

noticed by trial court, parties are involved in civil as well as

criminal litigation from before. High Court has noted that

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High Court of H.P. - 21 -

appellant, as per custody certificate, is not involved in any other

case. In such circumstances, it is not deemed necessary to send

the appellant immediately to Jail custody after about 19 years of

the occurrence when he appears to be 50 years of age and fully

settled in life.

8. In view of aforesaid, in our view the ends of justice would be

met by granting benefit of Probation of Offenders Act to the

appellant. We order accordingly and direct that the appellant be

released on executing appropriate bond before the trial court to

appear and receive sentence of rigorous imprisonment for 1

(one) year when called upon to do so and in the meantime to

keep the peace and be of good behaviour.”

20. The reliance is also placed upon Hon’ble Apex Court

judgment Hari Kishan and State of Haryana versus Sukhbir Singh 1988

AIR (SC) 2127, wherein it has been held as under:

“8. The question next to be considered is whether the accused

are entitled to the benefit of probation of good conduct? We

gave our anxious consideration to the contentions urged by

counsel. We are of opinion that the High Court has not committed

any error in this regard also. Many offenders are not dangerous

criminals but are weak characters or who have surrendered to

temptation or provocation. In placing such type of offenders, on

probation, the Court encourages their own sense of responsibility

for their future and protect them from the stigma and possible

contamination of prison. In this case, the High Court has observed

that there was no previous history of enmity between the parties

and the occurrence was an outcome of a sudden flare up. These

are not showing to be incorrect. We have already said that the

accused had no intention to commit mur der of any person.

Therefore, the extension of benefit of the beneficial legislation

applicable to the first offenders cannot be said to be

inappropriate.

9. This takes us to, the third questions which we have formulated

earlier in this judgments. The High Court has directed each of the

respondents to pay Rs.2500/- as compensation to Joginder. The

High Court has not referred to any provision of law in support of

the order of compensation. But that can be traced to section 357

Criminal Procedure Code Sectio n 357, leaving aside the

unnecessary, provides:-

“357. Order to pay compensation:

(1) When a court imposes a sentence of fine or a sentence

(including a sentence of death) of which fine forms a part, the

Court may, when passing judgment, order the whole or any part

of the fine recovered to be applied-

(a) in defraying the expenses properly incurred in the

prosecution;

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High Court of H.P. - 22 -

(b) in the payment to any person of compensation for any loss or

injury caused by the offence, when compensation is in the

opinion of the Court, recoverable by such person in a civil Court;

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Xxxxxx

(3) When a Court imposes a sentence, of which fine does not form

a part, the Court may, when passing judgment, order the

accused person to pay, by way of compensation. Such amount

as may be specified in the order to the person who has suffered

any loss or injury by reason of the act for which the accused

person has been sentenced.

(4) An order under this section may also be made by an

Appellate Court or by the High Court or Court of Session when

exercising its power of revision.

(5) At the time of awarding compensation in any subsequent civil

suit relating to the same matter, the Court shall take into account

any sum paid or recovered as compensation under this Section.

11. The payment by way of compensation must, however, be

reasonable. What is reasonable, may depend upon the facts and

circumstances of each case. The quantum of compensation may

be determined by taking into account the nature of crime, the

justness of claim by the victim and the ability of accused to pay.

If there are more than one accused they may be asked to pay in

equal terms unless their capacity to pay varies considerably. The

payment also vary depending upon the acts of each accused.

Reasonable period for payment of compensation, if necessary by

installments, may also be given. The Court may enforce the order

by imposing sentence in default.”

21. In view of the aforesaid law as well as submissions having

been made by Ms. Tuli, learned counsel appearing on behalf of the

petitioner and after taking into consideration the facts and

circumstances of the present case, I am of the considered opinion that

the present petitioner-accused can be granted benefit of Section 4 of

the Probation of Offenders Act, 1958 subject to payment of adequate

compensation, which would be determined after the receipt of the

report of Probation Officer.

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22. Accordingly, Registry is directed to call for the report of the

Probation Officer, Shimla, District Shimla, H.P. within six weeks. Registry to

list this matter on 12

th

December, 2016.

28

th

October, 2016 (Sandeep Sharma),

manjit Judge.

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