CRIMINAL APPEAL 1654 of 2001 on 3 November 2001

In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1654 of 2001 (O&M)Date of Decision:December 07, 2009

Balwan Singh and another

---Petitioners

versus

State of Punjab

---Respondent

***

GURDEV SINGH, J.

Balwan Singh and Nirmal Singh-petitioners-accused havepreferred this revision against the judgment dated 3.11.2001 passed byShri J.S.Bhatia, Additional Sessions Judge, Sangrur, who dismissed theappeal which was directed against the judgment dated 28.1.2000 passed bySh. Harbans Singh, Judicial Magistrate Ist Class, Sunam, vide which heconvicted and sentenced the petitioners for the offences under Sections323, 325/34 of the Indian Penal Code and sentenced them as under:- “ 1.Balwan Singh convict is sentenced u/s 325 IPC to undergorigorous imprisonment for the period of two years, with fine of Rs. 1,000/-. In default of payment of fine, he shall furtherundergo rigorous imprisonment for four months .

2. Nirmal Singh convict is sentenced u/s 325/34 IPC to undergoone year rigorous imprisonment with fine of Rs. 500/-. Indefault of payment with fine, he shall further undergo rigorousimprisonment for two months.one year rigorous imprisonment with fine of Rs. 500/-. Indefault of payment with fine, he shall further undergo rigorousimprisonment for two months.

3. Nirmal Singh convict is also sentenced u/s 323 IPC to undergorigorous imprisonment for nine months, whereas, convictBalwan Singh is sentenced to undergo rigorous imprisonmentfor six months u/s 323/34 IPC.”rigorous imprisonment for nine months, whereas, convictBalwan Singh is sentenced to undergo rigorous imprisonmentfor six months u/s 323/34 IPC.”

In brief, the facts are that on the eve of Diwali of the year 1997,Ram Niwas complainant , PW-3, after purchasing crackers from the shop ofRaju was going back to his house, while firing those crackers, whenwithout any reason, he was challenged by the petitioners. That dispute wassettled by the respectables of the village, but the petitioners had beennourishing a grudge against the complainant. On 21.3.1998, at about 3.30p.m., the complainant was going to his fields with his niece – Bittu in hisarms. When he reached near the house of the petitioners, they were presentat that place and was abused by Balwan Singh. He continued to proceedtowards his fields. Balwan Singh exhorted the other petitioner-NirmalSingh to teach a lesson to him for bursting the crackers near their house.Nirmal Singh brought kassia from his house and gave a blow with the sameon the back side of the left shoulder of the complainant, as a result of whichhe fell down along with his niece. Then Nirmal Singh gave a blow withkassia on the head of his niece. Balwan Singh picked a stone lying at thatplace and gave a blow with the help thereof on the face of the complainant,

as a result of which his upper tooth came out and he received an injury onhis lip. As a result of receipt of those injuries, he became unconscious. Heand the other injured were admitted in the hospital by Sadhu Ram wherethey were medically examined by Dr. B.B.Lala, PW-7, who found oneinjury on the person of Bittu and three injuries on the person of thecomplainant. One of the injury on the person of the complainant wasdeclared as grievous. On the receipt of information regarding thisoccurrence, ASI Anoop Singh, PW-5, went to the hospital and afterobtaining the opinion of the doctor about the fitness of the complainant,recorded his statement Ex. PD. After making his endorsement Ex. PD/1upon the same, sent that to the police, on the basis of which FIR Ex. PD/2under Sections 323, 325/34 IPC was recorded against the petitioners. Theparna of the complainant and the T-shirt of Bittu, stained with blood, wereproduced before the ASI, who converted those into a parcel and sealed thesame with his seal ‘AS’. The sealed parcel was taken into possession vidememo Ex. PW4/A. Sadhu Ram produced the tooth of the complainantbefore the ASI, which was converted into a separate parcel and was sealedwith the same seal and that sealed parcel was taken into possession vidememo Ex. PW 4/B. The ASI went to the place of occurrence and afterinspecting the same prepared rough site plan Ex. PW 5/A with correctmarginal notes. After coming back to the police Station, ASI deposited thecase property with the MHC. After completion of the investigation, challanwas presented before learned Judicial Magistrate Ist Class, Sunam, for thetrial of the petitioners for the aforesaid offences. From the documents sentalong with the police report, learned Judicial Magistrate Ist Class foundsufficient grounds for presuming that they committed offences under Sections 324, 325/34 IPC. They were charged accordingly, to which theyplead not guilty and claimed trial.

In the course of evidence, prosecution examined Dr. VijayGoyal, PW-1, Dr. Ashwani Bhatia, PW-2, Ramniwas, PW-3, Sadhu Ram,PW-4, ASI Anoop Singh, PW-5, HC Ranjit Singh, PW-6 and Dr. B.B.Lala,PW-7.

After the close of the prosecution evidence, petitioners wereexamined and their statements were recorded under Section 313 Cr.P.C.All the incriminating circumstances, appearing against them in theprosecution evidence were put to them in order to enable them to explainthe same. They denied those circumstances and pleaded their innocence andfalse implication. They were called upon to enter on their defence. Theyexamined Ram Niwas, DW-1, Major Singh-DW-2 and Rajbir Singh, DW-3in their defence.

After hearing the Assistant Public Prosecutor and learneddefence counsel for the accused and going through the records of the case,learned Judicial Magistrate Ist Class convicted and sentenced the accused asaforesaid. They filed an appeal against the conviction and sentence but thesame was dismissed by the learned Additional Sessions Judge, Sangrur,vide judgment dated 3.11.2001.

Notice of the revision was given to the State.

I have heard learned defence counsel for the petitioners andSenior Deputy Advocate General, Punjab for the State and have carefullygone through the records of the case.

At the time of arguments, learned defence counsel onlychallenged the order of sentence. He argued that the petitioners are not previous convicts and keeping in view their age and other circumstances ofthe case, they should be given the benefit of probation and in the alternative,he prayed that while maintaining the sentence of fine, the sentence ofimprisonment be reduced to already undergone by them.

On the other hand, it is submitted by Senior Deputy AdvocateGeneral, Punjab, that the trial court recorded the reasons for not granting thebenefit of probation to the petitioners and there is no ground for releasingthem on probation, when they had been convicted for causing grievous hurtto the complainant and Bittu. The sentence imposed, is already on the lowerside and any order for reduction thereof will go against the theory ofdeterrent punishment.

The petitioners were convicted for the offence under Sections323, 325/34 IPC. The former offence is punishable with imprisonmentwhich may extend to one year and the latter offence is punishable withimprisonment up to seven years. Therefore, the case of the petitioners wasto be dealt with under Section 360 Cr.P.C. which requires that any personconvicted for an offence punishable with imprisonment for seven years orless, keeping in view his age, character and other antecedents andcircumstances in which the offence was committed and if it is foundexpedient by the court, should be released on probation of good conductinstead of sentencing him at once to any punishment. Section 361 of theCode makes it necessary for the court to record special reasons for notdealing with the accused under that Section. Learned Judicial Magistrate IstClass recorded in his order of sentence, the reasons for denying the benefitof probation to the petitioners. He took into account only the injuries soinflicted by them. It is pertinent to note that only simple injuries were attributed to Nirmal Singh, who disclosed his age as 23 years. No previousconviction was proved against him. He stated before the trial court that heis a poor agriculturist and has got one small child. Keeping in view thenature of the injuries which were attributed to him and his position in life,the benefit of probation should have been granted to him. Accordingly,sentenced imposed upon him is set aside. He is ordered to be released onprobation on his executing a bond in the sum of Rs. 5000/- with a suretyin the like amount for a period of two years to the satisfaction of the trialcourt for keeping peace and be of good behavior in the meanwhile. Thefine imposed upon him shall be treated as costs of the prosecution.

The grievous hurt was caused by Balwan Singh-petitioner. Asa result of the blow given by him, not only one of the tooth of thecomplainant was uprooted but he received corresponding injuries on his lipsalso. No illegality is found in the order of the trial court in sentencing himfor having caused such an injury. There is no ground for interfering withthat part of the order and the sentence so imposed upon this petitioner isupheld.

The revision is disposed of accordingly.

(GURDEV SINGH) JUDGE