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2002 DIGILAW 958 (PNJ)

Kashmir Singh v. Sardul Singh

2002-09-20

R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. This is a criminal revision filed by Kashmir Singh complainant. 2. Some facts can be noticed in the following manner :- S/Shri Sardul Singh, Tara Singh, Randhir Singh and Chanan Singh were prosecuted in case FIR No. 120/89 under Section 324/323/34 IPC registered at Police Station, Jandiala. The learned Magistrate vide judgment and order dated 15.6.1995 came to the conclusion that the prosecution has been successful to bring home the guilt of all the accused beyond the shadow of a reasonable doubt. Consequently, they were convicted and sentenced for the offence under section 324/323/34 IPC though the charge was under section 326 IPC. While modifying the offence from Section 326 to 324 IPC, the learned Magistrate in para No. 18 of the judgment held as follows :- "Being fortified by abovesaid authority from our own Honble High Court, I am of the considered opinion that since the doctor has failed to order the X-ray of the said grievous injury in order to support his opinion as such much reliance cannot be placed on his opinion which is based upon visual observation alone. There is also no evidence as to how many days the complainant remained admitted in the hospital or that he suffered bodily pain as a result of which the complainant was unable to follow his ordinary pursuits. I am of the opinion that the simple injury cannot be called grievous injury simply because it happens to be on vital part of the body. Unless in the opinion of the doctor it actually endangered the life of the victim. Due to this reason, the injury No. 2 does not fall within the mischief of Section 320 IPC but nevertheless it is a simple injury which has been caused with the sharp edged weapons as such the offence certainly falls under section 324 I.P.C." 3. The State did not file any appeal before the High Court challenging the acquittal of the accused under section 326 IPC. However, the accused filed an appeal before the court of Addl. Sessions Judge, Amritsar, who dismissed the appeal but extended the benefit of the Probation of Offenders Act and in this regard it will be useful for me to reproduce the contents of paras 10 and 11 of the judgment of the learned Addl. Sessions Judge, Amritsar, as follows :- "10. It was urged by the ld. Sessions Judge, Amritsar, who dismissed the appeal but extended the benefit of the Probation of Offenders Act and in this regard it will be useful for me to reproduce the contents of paras 10 and 11 of the judgment of the learned Addl. Sessions Judge, Amritsar, as follows :- "10. It was urged by the ld. counsel for the appellants that the convicts are first offenders, occurrence took place on 1.7.1989 and they have suffered lot of agony pending investigation and trial. Parties are near relatives and co- villagers. Sentencing the appellants to a term of imprisonment would he harsh on them and would increase bitterness inter-se the parties. Considering the facts and circumstances of the case in their totality, I think the appellants should be given chance of reformation. Accordingly, while maintaining the finding of their conviction recorded by the learned Magistrate, I direct that they be released on probation for two years on executing personal bonds for Rs. 5,000/- with one surety each undertaking to keep peace, be of good behaviour and to appear and receive sentence during that period, if required. Each of them shall pay to the State a sum of Rs. 2,000/- as costs of proceedings, the amount of fine paid in the trial Court shall be adjusted against the costs of proceedings imposed on the appellants. 11. Under Section 12 of the Probation of Offenders Act, 1958, a person found guilty of an offence and dealt with under the provisions of Section 3 or 4 of the Act ibid, shall not suffer disqualification if any attaching to conviction of an offence under such law provided that nothing in the said section shall apply to a person, who after his release under the said section is subsequently sentenced for the original offence. In view of this, the conviction of the appellant Randhir Singh and his release on probation under this order shall not be a dis-qualification in the matter of his employment under the Government." 4. Complainant Kashmir Singh is not satisfied with the order passed by the learned Addl. Sessions Judge and he filed the present revision which came up for hearing before Honble Mr. Complainant Kashmir Singh is not satisfied with the order passed by the learned Addl. Sessions Judge and he filed the present revision which came up for hearing before Honble Mr. Justice M.L. Singhal on 8.10.1988 and his Lordship was pleased to pass the following order :- "For the reasons given in the application filed under S. 5 of the Limitation Act for condoning delay in the filing of this revision petition, delay in filing of this revision petition is condoned. Notice of revision to all the respondents for 18.11.98. Their presence shall be procured through bailable warrants. If bailable warrants are executed, they will be taken to the Court of Chief Judicial Magistrate, Amritsar, who will direct them to this Court. Registrar General of this Court will procure the explanation of Sh. D.K. Monga, formerly Addl. Sessions Judge, Amritsar, for the consideration of this Court as to why he allowed the benefit of the provisions of the Probation of Offenders Act, when the offence was obviously one punishable under S. 326 IPC though the Magistrate had wrongly held "injury" which was clear cut a grievous injury falling within the mischief of Section 326 IPC in view of AIR 1970 Supreme Court page 1969 and further injuries No. 1 and 2 were on the vital parts. Further he will also explain why he overstepped his jurisdiction while observing that the release of accused Randhir Singh on probation of good conduct will not be a disqualification in the matter of his employment under the Government. He ought to have left it for the consideration of his department. He ought to have thought that the injured Kashmir Singh was also a retired Inspector of Customs & Central Excise. Before granting the benefit of the provisions of the Probation of Offenders Act, he ought to have weighed the equities of the case instead of allowing any tilt." 5. The learned Addl. Sessions Judge gave explanation in letter No. 561 dated 11.11.1998 which runs as follows :- "1. On appreciation of evidence, learned trial Magistrate recorded a finding that injury No. 2 (of Kashmir Singh) did not fall within the mischief of Section 320 IPC but it was a simple injury caused with sharp edged weapon falling under Section 324 IPC. The other two injuries (Nos. 1 and 3) had been declared by the doctor as simple and caused by blunt weapon. The other two injuries (Nos. 1 and 3) had been declared by the doctor as simple and caused by blunt weapon. The learned Magistrate accordingly convicted the accused for offences under Section 323/324/34 IPC only acquitting them of the charge under Section 326 IPC. Appeal against that acquittal could only be filed in the Honble High Court as per provisions of Section 378 Cr.P.C. 2. In the appeal before me, the accused had challenged their conviction and sentence for offence under Section 323/324/34 IPC. The State or the complainant did not agitate against the finding of the trial court (to the effect that injury No. 2 was a simple injury falling under Section 324 IPC) and the acquittal of the accused for charge under Section 326 IPC. In view of this and the provisions of Section 386(b) Cr.P.C., I submit that it would not have been proper for me to alter the conviction of the appellant for the said injury from Section 324 IPC to Section 326 IPC as doing so would amount to interference with the acquittal recorded by the learned Magistrate for the charge under Section 326 IPC. 3. Further-more, injury No. 2 of Kashmir Singh was not X-rayed and it was declared grievous by the doctor on visual observation alone. In State of Punjab v. Manga Singh and another, 1992(2) RCR(Criminal) 144, no X-ray was done to prove the nature of injury. In the MLR it was mentioned that the underlying bone was cut along the direction of the wound. The injury was declared grievous without X-ray examination. A Division Bench of Honble Punjab & Haryana High Court held that the opinion (declaring the injury grievous) based on mere visual observation fell through and was rightly ignored by the learned trial court. 4. In my humble opinion it would not have been proper for me while dealing with the sentence part, to treat injury No. 2 (of Kashmir Singh) as attracting the graver offence under Section 326 IPC while also upholding the finding of conviction recorded by the learned Magistrate for the lesser offence under Section 324/34 IPC for the same injury. For reasons recorded, I found it a fit case for release of the convicts on probation. In the absence of relevant record, I cannot say whether or not it indicated that the injured was also a retired Inspector of Customs & Central Excise. 5. For reasons recorded, I found it a fit case for release of the convicts on probation. In the absence of relevant record, I cannot say whether or not it indicated that the injured was also a retired Inspector of Customs & Central Excise. 5. Under Section 12 of the Probation of Offenders Act, 1958, notwithstanding anything contained in any other law, a person found guilty of offence and dealt with under the provisions of Section 3 or Section 4 (as in present case) shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. In my humble view, observations to this effect recorded by me were in consonance with the said legal provisions. If those observations were not needed and are surplusage, I regret having recorded the same. 6. I will be able to offer further explanation, if required, after examining the relevant files of the trial court and the first appellate court. 7. If I have made some mistake in the case, I tender apology and assure to be more careful in future." 6. I have gone through the records of this case. The State has not challenged the order of learned Addl. Sessions Judge. The learned Addl. Sessions Judge has given cogent reasons why he converted the offence from 326 to 324 IPC. As admitted the injury No. 2 of Kashmir Singh was not X-rayed and it was declared grievous by the doctor on visual observation alone, which was against the judgment reported as 1992(2) RCR(Crl.) 144, therefore, I am of the opinion that the learned Addl. Sessions Judge was not wrong when he thought it proper to grant the benefit of probation under the Probation of Offenders Act. However, I am further of the view that the observations made by the learned Addl. Sessions Judge in his judgment dated 6.2.1998 to the following effect were uncalled for : "In view of this, the conviction of the appellant Randhir Singh and his release on probation under this order shall not be a dis- qualification in the matter of his employment under the Government." This observation shall be deemed to have been deleted and will be treated as non est. The matter is left open to the department whether it wants to proceed further against Randhir Singh or not. The judgment dated 6.2.1998 passed by learned Addl. The matter is left open to the department whether it wants to proceed further against Randhir Singh or not. The judgment dated 6.2.1998 passed by learned Addl. Sessions Judge, Amritsar is hereby maintained when he gave the benefit of the Probation of Offenders Act. Revision stands disposed in the light of above observations.