Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 102 (PNJ)

Banwari v. State of Haryana

2004-01-29

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Banwari and Amar Singh sons of Mukh Ram, Rohtas son of Banwari, Bhoop Singh son of Siri Ram were convicted by the learned Judicial Magistrate IInd Class, Sirsa and sentenced as under :- Banwari and Amar Singh U/S 325 read with Section 34 Indian Penal Code To undergo S.I. for ten months and to pay fine of Rs. 500/- each, in default of payment of fine to undergo further SI for one month. Rohtash and Bhoop Singh U/S 325 read with Section 34 Indian Penal Code. To undergo S.I for three months and to pay a fine of Rs. 200/- each, in default of payment of fine to undergo further SI for one month. 2. They preferred an appeal against the judgment of the learned trial Court and the same also stands dismissed vide impugned judgment dated 12.12.2003 passed by the learned Additional Sessions Judge, Sirsa. Hence, this revision. 3. At the time of admission, the present petition was dismissed on merits. Faced with this situation, the learned counsel for the petitioners then made submissions on the quantum of sentence, whereupon, notice of motion was issued to the State of Haryana. 4. I have heard Mr. Sanjiv Gupta, learned counsel for the petitioners and Mr. Bijender Dhankar, learned Assistant Advocate General, Haryana. With their assistance, I have also gone through the entire record of the case. 5. Mr. Gupta contends that the present occurrence relates to the year 1995 and all the petitioners have already suffered a rigour of protracted trial of so many years. Then contends that although Tansukh injured has received seven injuries in this case but only one injury has attracted Section 325 Indian Penal Code and the other injuries are simple in nature. Further contends that after the occurrence, no untoward incident has ever occurred between the parties during the interregnum. It is then submitted that petitioners No. 3 and 4 (Rohtas and Bhoop Singh), who have been sentenced to three months simple imprisonment, have undergone substantial period of their substantive sentence as they along with Banwari and Amar Singh, their co-convict, were taken into custody after their appeal was dismissed on 12.12.2003. Relying heavily on the aforesaid submissions, the learned counsel prays for releasing the petitioners on probation. 6. Relying heavily on the aforesaid submissions, the learned counsel prays for releasing the petitioners on probation. 6. Learned counsel for the petitioners submits that for the purpose of granting the benefit of probation, both the Courts below have not dealt this point deeply and in a casual manner have denied the said relief observing that the petitioners deserve to be dealt with hard handed. This approach according to the learned counsel is uncalled for in the facts and circumstances of the present case. In support of his submissions, Mr. Gupta relies upon the latest judgment of the Honble Apex Court rendered in Om Parkash and others v. State of Haryana, 2003 Supreme Court Cases (Crl.) 799. 7. Returning the submissions made by Mr. Gupta, learned State Counsel submits that the petitioners do not deserve any leniency so far as quantum of sentence is concerned as all had assaulted injured Tansukh. 8. After hearing the rival contentions of both the sides, I find some force in the submissions made by the learned counsel for the petitioners. Their Lordships of the Apex Court in Om Parkashs case (supra) while dealing with the provisions of Sections 360/361 Criminal Procedure Code have observed as under :- "The provisions of Section 360 Criminal Procedure Code are beneficial to the accused only when the accused is a first offender in case the accused is more than 21 years of age. Section 361 of the Code of Criminal Procedure indicates that if the Court decided not to exercise its jurisdiction under Section 360, then it must record its reasons as to why the benefit of Section 360 Criminal Procedure Code is being denied. In view of the peremptory nature of the language of provisions of Section 361, the Magistrate as well as the Court in appeal and revision having not indicated as to why the provisions of Section 360 Criminal Procedure Code have not been applied, there has been a gross miscarriage of justice and the legislative mandate engrafted in the aforesaid two sections of the Code have not been complied with. 9. 9. Taking into consideration all the facts and circumstances of the case, especially when two of the petitioners, namely, Rohtash and Bhoop Singh, have already undergone substantial period of their imprisonment and the other two petitioners, namely, Banwari and Amar Singh have already been awarded only simple imprisonment, for ten months, they deserve the concession of being released on probation. It is ordered accordingly. I direct that all the petitioners shall execute a bond with one surety each to the extent of Rs. 10,000/- for a period of one year within which period they shall continue to be on probation for good behaviour and keeping peace. They shall prove to be of good conduct and maintain peace during the period of probation. It is, however, made clear that the bonds to be furnished by the petitioners shall be of without supervision. 10. The bonds shall be executed before the trial Court within a period of one month from the date of receipt of a certified copy of this judgment. 11. However, the fine imposed by the trial Court upon petitioners No. 1 and 2 (Banwari and Amar Singh) is increased to Rs. 5000/- each and the said amount which now comes to Rs. 10,000/- shall be converted into compensation under Section 5(1)(a) of the Act. The said amount shall be deposited by petitioners No. 1 and 2 before the learned trial Court at the time of furnishing bonds and the same would in turn be given to injured Tansukh without any delay. So far as fine imposed of Rs. 200/- each on petitioners No. 3 and 4 is concerned, the same shall be converted as cost of the proceedings under Section 5(1)(b) of the Act. 12. With the modification in sentence as indicated above, the present revision petition stands dismissed. 13. Office is directed to inform both the courts below of this judgment at once, for compliance. Revision dismissed.