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2004 DIGILAW 845 (PNJ)

Krishan v. State of Haryana

2004-08-05

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - Krishan, the petitioner herein and his co-accused Het Ram were charged under Section 325/323/34 Indian Penal Code. Both of them were consequently convicted for the said charge. Vide impugned judgment dated 6.3.2002 passed by Learned Chief Judicial Magistrate, Fatehabad, Het Ram was released on probation whereas the present appellant is sentenced to undergo rigorous imprisonment for a period of 6 months under Section 323 Indian Penal Code, to undergo rigorous imprisonment for a period of 1 year and a fine of Rs. 250/- under Section 325 Indian Penal Code. In default of payment of fine, to further undergo rigorous imprisonment for 15 days. However, both the sentences were ordered to run concurrently. 2. Aggrieved by that impugned judgment of conviction and sentence, the present petitioner and his co-accused Het Ram preferred an appeal. Vide impugned judgment dated 10.7.2004 Additional Sessions Judge, Fatehabad, the conviction of both the accused has been reaffirmed. Hence, this revision is now by Krishan, petitioner only. 3. Learned counsel for the petitioner does not assail the judgment of both the Courts below and has instead confined his arguments on the point of sentence only. Notice of motion regarding the sentence only. 4. On the asking of the Court, State of Haryana accepts the notice. 5. I have heard the learned counsel for both the sides and have perused the judgments of both the Courts below. 6. Learned counsel for the petitioner contends that the occurrence relates to the year 1993 and the petitioner at the time of occurrence was of the age of 43 years. He has already faced the ordeal of long trial of 11 years. He, then contends that the complainant party and the petitioner are in near relations and after the present occurrence, no untoward incident has ever occurred between the two sides till date. Learned counsel further contends that except one injury which is on the index finger of Baljit, which is declared grievous, the other injuries received by the complainant side are simple in nature. He, then contends that as Het Ram has been ordered to be released on probation and the case of the present petitioner also calls for the same lenient approach with regard to quantum of sentence but the learned Court has rejected the prayer of the petitioner without any cogent reason. He, then contends that as Het Ram has been ordered to be released on probation and the case of the present petitioner also calls for the same lenient approach with regard to quantum of sentence but the learned Court has rejected the prayer of the petitioner without any cogent reason. He further contends that the learned Additional Sessions Judge has not at all considered the aspect of the probation qua the present petitioner. In support of his arguments, the learned counsel relies upon a latest judgment of Honble Apex Court rendered in Om Prakash and others v. State of Haryana, 2003 SCC(Crl.) 77. 7. The learned State counsel has, however, opposed the submissions made by Shri Lakhanpal on behalf of the petitioner and states that the petitioner does not deserve any leniency with regard to quantum of sentence as he had assaulted empty-handed person of the complainant side. 8. The Honble Apex Court in Om Prakashs case (supra) while dealing with the provisions of Sections 360/361 Criminal Procedure Code has 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. Keeping in consideration all the facts and circumstances of the instant case, including the age of the petitioner and the fact that his accused Het Ram has already granted the concession of probation, the present petitioner also deserves the same relief. It is ordered accordingly. I, consequently, direct that the petitioner shall now execute a bond with one surety each to the extent of Rs. It is ordered accordingly. I, consequently, direct that the petitioner shall now execute a bond with one surety each to the extent of Rs. 10 thousand for a period of one year before the trial Court and within this period he shall continue to be on probation for good behaviour. He 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 petitioner shall be without supervision. 10. The fine already imposed by the trial Court is now converted into cost of proceedings. Over and above, the petitioner shall be depositing a sum of Rs. 8,000/- as compensation under Section 5(1)(a) of the Probation of Offenders Act. The said amount shall be deposited before the trial Court at the time of furnishing of requisite bonds for probation. In the event of the deposit of said amount, the same shall be disbursed amongst Shanti Devi and Rajinder in equal share. 11. With the modification in the quantum of sentence as indicated above, the present revision petition stands dismissed. 12. Office is directed to inform both the Courts below of this judgment at once for compliance. Revision dismissed.