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2006 DIGILAW 2809 (RAJ)

Ganga Ram v. State of Rajasthan

2006-10-04

HARBANS LAL

body2006
JUDGMENT 1. - Since these two criminal revision petitions under section 397 r/w. section 401 Cr.P.C. are directed against the common judgment and order dated 17.3.2006 passed by the learned Additional Sessions Judge No. 2, Bharatpur in Criminal Appeal No. 38/2005, they have been heard together and are being disposed of by this common order. 2. These petitions are directed against the impugned-judgment and order dated 17.3.2006 passed by the learned Additional Sessions Judge No. 2, Bharatpur in Criminal Appeal No. 38/2005 vide which the appeal has been partly allowed and while upholding the conviction of the accused-petitioners as recorded by the trial court vide its impugned-order dated 6.12.2003 set-aside the sentence imposed upon them by the trial court and instead granted them benefit of probation under Section 4 of the Probation of Offenders Act, '' 958 (hereinafter referred as "Act of 1958") and further directed under Section 5 of the Act of 1958 to pay Rs. 3000/- each as compensation to the injured persons. 3. Briefly stated, the facts are that a written report came to be lodged by complainant Vijay Singh at P.S. Sumer on 27.12.1999 to the effect that at about 9.00 a.m. on that day he along with his sons Sunder and Prem were irrigating their fields from the tubewell. The complainant was spreading fertiliser. The accused-petitioners came together duly armed with deadly weapons and caused injuries to them by pharsa, ballam and lathi with the common object of murdering them. Accused-petitioner Ganga Ram caused injury on the head of Prem Singh with Pharsa. Accused-petitioner Babli gave pharsa blow on Sunder. Sons of Girraj gave lathi blows to his son and accused-petitioner Devi Singh gave a lathi blow to Vijay Singh on his right thumb. Accused-petitioner gave a ballam blow on his left hand. Others also gave beatings to them. Accused-petitioner Babli took Rs. 10,000/- from the pocket of his son Sunder which he had brought from Surota for depositing the installments of the tractor loan. On the basis of the said report, F.I.R. No. 616/1999 for offences under Sections 147, 323, 341 and 379 IPC was got registered. After investigation, charge-sheet was filed against the petitioners for offences under Sections 147, 148, 149, 323, 324 and 325 I.P.C. 4. The trial court after hearing learned counsel for the accused framed charges against the accused-petitioners to which they pleaded not guilty. 5. After investigation, charge-sheet was filed against the petitioners for offences under Sections 147, 148, 149, 323, 324 and 325 I.P.C. 4. The trial court after hearing learned counsel for the accused framed charges against the accused-petitioners to which they pleaded not guilty. 5. The prosecution examined as many as 11 witnesses in support of the prosecution case. Thereafter, accused were examined under Section 313 Cr.P.C. They reiterated their plea of guilt and examined Totaram DW-1, Pratap DW-2 and Dr. Vinid Kumar DW-3 in their defence. 6. After hearing final arguments and on the basis of the evidence on record, the trial court held all the accused persons guilty of the offences under Sections 148, 323, 324, 324/149, 325 and 325/149 I.P.C. and sentenced each of them for rigorous imprisonment for six months for offence under Section 148 IPC, one month R.l. for offence under Section 323 IPC, two years R.l. along with fine of Rs. 300/- each for offences under Sections 324 and 324/149 IPC and three years R.l. for offences under Sections 325 and 325/149 IPC along with fine of Rs. 500/-. In default of payment of fine imposed under Sections 324, 324/149, 325 and 325/149 IPC, to undergo each of the petitioners to further simple imprisonment for one month. It was further directed that in the events of payment of the fine injured Sunder Singh, Vijay Singh and Jawahar Singh shall be paid Rs. 1000/- each and injured Prem Singh shall be paid Rs. 500/- and all the substantive sentences imposed them were directed to be run concurrently. Aggrieved by the said judgment and order petitioners filed appeal before the learned District and Sessions Judge Bharatpur which was transferred to the learned court below who vide impugned-judgment upheld the conviction of the accused-petitioners recorded by the learned trial court but quashed the sentence of imprisonment and fine and instead extended the benefit of probation under Section 4(1) of the Act of 1958. They were ordered to be released on their furnishing a personal bond with one surety in the sum of Rs. 5000/- each for maintaining peace and good behaviour for a period of two years. They were further directed to appear before the court as and when called. Under Section 5 of the Act of 1958 each of the accused-petitioner was directed to deposit Rs. 3000/- for being paid as compensation to the injured persons. 5000/- each for maintaining peace and good behaviour for a period of two years. They were further directed to appear before the court as and when called. Under Section 5 of the Act of 1958 each of the accused-petitioner was directed to deposit Rs. 3000/- for being paid as compensation to the injured persons. It was made clear that in the event of their not furnishing the bail bonds and depositing the amount of compensation they would undergo the sentence imposed by the learned trial court and in the event of depositing the amount of compensation Rs. 10,000/- shall be paid to Sunder, Rs. 5000/- to Vijay Singh, Rs. 2500/- to Jawahar Singh and Prem Singh each and remaining Rs. 1000/- shall be deposited as cost of the proceedings. 7. Being dissatisfied with the aforesaid order the accused-petitioners have filed D.B. Cr. Revision Petition No. 349/06 and complainant-petitioner has filed S.B. Cr. Revision Petition No. 419/06. 8. Learned counsel for the accused-petitioners has contended that the prosecution case is full of material infirmities, inconsistencies and contradictions which have not been properly considered by the learned court below. The prosecution witnesses having suppressed the genesis of the occurrence, are not reliable witnesses. Moreover, incriminating circumstances have not been put to the accused petitioners. There is also unexplained delay of 8 hours in lodging the first information report. The witnesses are interested being close relatives. So, on the basis of their evidence, no conviction can be legally sustained. 9. Learned counsel for the complainant and the learned Public Prosecutor have supported the judgments of the courts below so far as the conviction of the accused is concerned. But, they have argued on the basis of M.C.D. v. State of Delhi: 2005 Cr.LJ. 3077 that the learned Court of Sessions before granting the benefit of probation to the accused-petitioner has not sent for any report from the Probation Officer regarding the antecedents of the accused. According to them, before deciding to accord probation under Section 4(1) of the Act of 1958, it is mandatory on the part of the court to call for a report from the Probation Officer and if such a report is received it is mandatory to consider the same. According to them, before deciding to accord probation under Section 4(1) of the Act of 1958, it is mandatory on the part of the court to call for a report from the Probation Officer and if such a report is received it is mandatory to consider the same. If for one reason to the other such report is not forwarded the court has to decide the matter on the basis of other materials available to it but it does not mean that the court need not call for any report from the Probation Officer. The words "if any" would only cover a case where notwithstanding such requisition the Probation Officer for one reason or the other has not submitted a report, in the above said case also, the Magistrate who passed the order releasing the accused on probation without taking into consideration their character it was held that the requirement of Section 4(1) of the Act of 1958 is not fulfilled and, therefore, the case was remanded. 10. It is apparent from the resume of facts of the instant case and is also admitted that the learned court below has not sent for any report from the Probation Officer. It is not the case that the report was called for from the Probation Officer and it was not received. Therefore, in view of the law laid down by the Hon'ble Apex Court in the aforementioned authority relying upon the earlier decisions of the Apex Court in the cases of State v. Naguresh G. Shel Govenkar and another : AIR 1970 Goa 49 : 1970 Cr.L.J. 465, 1971(3) SCC 914 and 1979 Cr.L.J. (NOC) 20 (Mad) 'chat as the report from the Probation Officer has not been called for, the matter is required to be remanded back. The same is the case here. Therefore, the matter needs to be remitted back for passing fresh judgment and order in accordance with law after sending for the report of the Probation Officer. So, it may not be just, appropriate and reasonable to deal with the contentions raised on either side regarding the merits of the case. 11. In the result, both these revision petitions are allowed. The impugned-judgment dated 17.3.2006 passed by the learned Additional Sessions Judge No. 2, Bharatpur in Criminal Appeal No. 38/2005 is hereby quashed and set-aside. So, it may not be just, appropriate and reasonable to deal with the contentions raised on either side regarding the merits of the case. 11. In the result, both these revision petitions are allowed. The impugned-judgment dated 17.3.2006 passed by the learned Additional Sessions Judge No. 2, Bharatpur in Criminal Appeal No. 38/2005 is hereby quashed and set-aside. The case is remitted back to the Court of learned Additional Sessions Judge No. 2, Bharatpur with the direction to pass fresh judgment in the light of the observations made here-in-above and after complying with the guidelines laid down by the Hon'ble Apex Court in the decision referred to above.Both the Revision Petition allowed. *******