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2008 DIGILAW 1637 (RAJ)

Sita Ram Sapra v. Hazari Lal

2008-07-08

S.P.PATHAK

body2008
JUDGMENT 1. - This revision petition under Section 397 read with Section 401 Cr.P.C. has been filed against the judgment and order dated 2 May 2003 passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Baran in Criminal Appeal No. 60/2002 - Hazari Lal Bhargava v. State , by which conviction and sentence recorded under Sections 452 and 326 IPC against the respondent by the Learned Judicial Magistrate, 1st Class, Baran in Criminal Case No. 116/96 has been set aside by giving benefit of doubt and the accused-respondent has been convicted under section 324 IPC and instead of awarding sentence gave benefit of the provisions of Probation of Offenders Act. 2. Briefly stated, the relevant facts of the case are that a first information report (Ex.P-3) was lodged by complainant PW-7 Sita Ram Sapra in police station Baran alleging therein that on 11.9.1990 at about 5.00 p.m. in the evening while he was sitting in his house and was taking tea, he heard accused abusing and was being told by Ram Karan and Vinod Kumar not to abusive, at that time on opening the door of the home by the complainant, the accused came inside with a Dharia (a sharp edged weapon), inflicted blow by Dharia on the wrist of the right hand of the complainant, as a result of which complainant sustained injury on the wrist. It was also alleged that again a blow was inflicted by Dharia resulting in damage to the left hand thumb. On this report, an FIR No. 13/90 was registered under sections 324 and 452 IPC and after completion of investigation charge-sheet was filed in the trial court under Sections 452, 324 and 326 IPC. In all 17 witnesses were examined from the side of the prosecution and some documents were tendered in the evidence. In the statement recorded under Section 313 Cr.P.C. the accused denied the allegations levelled against him and stated that he has been falsely implicated in the case. No evidence in defence was produced. The learned trial court after hearing both sides, vide judgment dated 4.6.2002 convicted and sentenced the accused-respondent as under : 3. Under Section 452 IPC to suffer simple imprisonment for one year and a fine of Rs. 1,000/-, in default thereof to further undergo one month simple imprisonment. Under Section 324 IPC to suffer six months simple imprisonment and a fine of Rs. Under Section 452 IPC to suffer simple imprisonment for one year and a fine of Rs. 1,000/-, in default thereof to further undergo one month simple imprisonment. Under Section 324 IPC to suffer six months simple imprisonment and a fine of Rs. 500/-, in default thereof to further undergo one month simple imprisonment. Under section 326 IPC to suffer two years simple imprisonment and a fine of Rs. 2,000/-, in default thereof to further undergo three months simple imprisonment. An appeal No. 60/2002 was preferred by the accused-respondent against the judgment of conviction and order of sentence which came to be decided by the learned appellate court on 2nd May, 2003. The learned appellate court while acquitting the accused for the offences under sections 452 and 326 IPC, convicted him under section 324 IPC. The appellate court instead of sentencing the accused-respondent under section 324 IPC gave benefit of the provisions of section 4 of the Probation of Offenders Act and also ordered to pay compensation of Rs. 4,000/- to the injured in relation to the injury sustained by him and in making default to deposit the amount of compensation before the trial court upto 31.5.2003 to undergo sentence awarded by the learned trial court. 4. It is contended by the learned counsel for the petitioner that in this case the learned trial court had rightly convicted and sentenced the accused-respondent, therefore, no interference was required to be made by the learned appellate court. It is also contended that prosecution has been able to prove in this case the charges framed against the accused respondent without any manner of doubt, therefore, accused deserves no leniency in the matter. It is further contended that the accused-respondent is a lawyer, therefore, leniency was taken in the matter which was not required to be taken. 5. On the other hand, learned counsel for the accused-respondent has submitted that since from the evidence it was not borne out that the accused-respondent entered in the house of the complainant, therefore, the learned appellate court has rightly acquitted the accused-respondent from the offence under section 452 IPC. It is also contended that neither radiologist nor the radiographer was produced, therefore, the learned appellate court has rightly acquitted the accused for the offence under Section 326 IPC. It is also contended that neither radiologist nor the radiographer was produced, therefore, the learned appellate court has rightly acquitted the accused for the offence under Section 326 IPC. It is further contended that the accused-respondent is a lawyer and he has suffered sufficiently during the course of trial and up till now, therefore, in the above circumstances, it cannot be said that the learned appellate court committed illegality in giving benefit of provisions of the Probation of Offenders Act while not sentencing the accused under Section 324 IPC. 6. I have carefully considered the submissions made before me. 7. It appears from the evidence adduced in the case that the accused-respondent was responsible for the injuries sustained by the complainant on his wrist. The injury on the wrist has been stated grievous in nature by PW-16 Dr. R.S. Vyas but then radiologist or radiographer has not been, produced in the court, therefore, the learned appellate court while finding that since by using sharp edged weapon injury was inflicted and in the absence of the statement of the radiologist, it cannot be said that the offence under section 326 IPC was proved. The learned appellate court in this regard has discussed the evidence of Dr. R.S. Vyas who was examined to prove the injury of the complainant. Dr. Vyas has stated that he is not a radiologist. His opinion was based upon his experience. In the cross-examination, Dr. Vyas has stated that he recorded his opinion on the basis of written orders of Deputy Controller but that order has neither been proved or produced. The learned appellate court on finding that Dr. Vyas PW-16 was not having degree in radiologist and it was not legally safe to convict the accused under Section 326 IPC, convicted the accused under Section 324 IPC. The learned trial court after discussing the various authorities cited reached to the conclusion that in the absence of statement of radiologist, conviction was not liable to be maintained under Section 326 IPC. The eye witnesses in the case PW-1 Vinod, PW2 Ram Swaroop and PW-6 Ram Karan have not supported the prosecution case and as regards offer evidence PW-3 Harish Chand. PW-4 Kishan Lal, PW-7 Samiullah Khan, PW-1 1 Sandeep. PW-15 Balvindra Singh also have not supported the prosecution case. The eye witnesses in the case PW-1 Vinod, PW2 Ram Swaroop and PW-6 Ram Karan have not supported the prosecution case and as regards offer evidence PW-3 Harish Chand. PW-4 Kishan Lal, PW-7 Samiullah Khan, PW-1 1 Sandeep. PW-15 Balvindra Singh also have not supported the prosecution case. In this case the evidence of PW-8 Sita Ram, complainant, PW-5 Mahendra, the son of the complainant and PW-16 Dr. Vyas is relevant. The learned appellate court finding that injury sustained by the complainant was inflicted by the accused, therefore, finding that conviction was not maintainable under Section 326 IPC, convicted the accused rightly under Section 324 IPC. 8. In the present matter, the point which requires consideration is as to whether the acquittal of the accused for the offences under Sections 326 and 452 IPC is proper or not and as to whether the court committed any illegality in convicting the accused-petitioner under Section 324 IPC as it has been found from the evidence of PW-7 Sita Ram and PW-5 Mahendra that the injury sustained by the complainant was inflicted by the accused-respondent by a sharp edged weapon, therefore, it is not necessary to discuss the evidence in detail. It has also been found that except the complainant and his son, the prosecution story has not been supported by other witnesses but there does not appear to be a reason why the complainant will involve the accused in a false case simply by making a statement under Section 313 Cr.P.C. that he was not responsible for the injury in the incident. The evidence of the complainant and his son is required to be considered in the light of the evidence of the eye witnesses. None of the eye witness has supported the prosecution case, therefore, the story that the accused entered in the house of the complainant and thereafter inflicted injury cannot be said to be proved. Thus, in my opinion, the acquittal of the accused from the offences is legal and proper. As regards the grievous injury, it is only the statement of PW-16 Dr. Vyas. No radiologist was examined in this case, therefore the learned appellate court reached to the conclusion that the offence under Section 324 IPC was made out. The findings arrived at by the learned appellate court are with the reasons and deserves no interference. 9. As regards the grievous injury, it is only the statement of PW-16 Dr. Vyas. No radiologist was examined in this case, therefore the learned appellate court reached to the conclusion that the offence under Section 324 IPC was made out. The findings arrived at by the learned appellate court are with the reasons and deserves no interference. 9. Now the question comes as to whether the benefit of the provisions of the Probation of Offenders Act has been given in the matter requires any interference by this court. The provisions, of the Probation of Offenders Act would indicate that the provisions are mandatory in nature and the courts are required to give benefit of probation to the accused in proper cases. The law is settled that in case the benefit of Probation of Offenders Act is not given to the accused in the cases in which it is required to be given, then proper reasons are to be given. In the instant case, as per the facts of the case, it appears that the respondent is an advocate and he has faced trial for quite long time. The learned appellate court considered the entire matter and after recording reasons for giving benefit of the provisions of the Probation of Offenders Act gave benefit to the accused-respondent. The discretion exercised by the learned appellate court cannot be said to be improper or illegal. No useful purpose would be served in sending the accused behind the bars to serve sentence. 10. After having considered the entire matter, I am of the opinion that the learned appellate court has rightly acquitted the accused-respondent from the offences under Sections 452 and 326 IPC and rightly convicted the accused under Section 324 IPC and instead of sentencing under Section 324 IPC, gave benefit of the provisions of the. Probation of Offenders Act. The revision petition being devoid of merit is liable to be dismissed.In the result this revision petition stands dismissed.Revision Dismissed. *******