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2012 DIGILAW 1505 (PNJ)

Raj Singh v. State of Haryana

2012-10-16

MEHINDER SINGH SULLAR

body2012
JUDGMENT Mr. Mehinder Singh Sullar, J.: (Oral) - As identical questions of law & facts are involved, therefore, I propose to decide all the indicated criminal revision petitions, arising out of the same impugned judgments of conviction & order of sentence, in order to avoid the repetition. 2. Tersely, the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant revision petitions and emanating from the record, are that, on 19.5.1999 at about 2.15 PM, as soon as, a police party headed by HC Munshi Ram (PW6) was present at Rao Dev Pal Chowk on Mohindergarh Road, Rewari, in the meantime, he received a secret information that petitioner-convict Vikram and his father Sarjit, residents of village Ladhuwas, had brought pouches of licit liquor from Rajasthan and if a raid is conducted, then, they could be nabbed. Believing the information credible, the police party constituted a raiding party and joined Excise Inspector Ram Lal (PW5), who had met it by chance. The raiding party conducted the search of the house and found petitioner-convicts unloading the liquor from the vehicle. Petitioner-convict Vikram was stated to have fled away from the place of occurrence after seeing the police party, whereas petitioner-convicts Sarjit and Raj Singh were apprehended at the spot. It was claimed that in the wake of checking, four bags were recovered from the vehicle and seven bags containing 200 pouches each, of licit liquor were recovered from the house of Vikram. One pouch was separated and sealed as a sample from each bag. The sample and remaining liquor were separately sealed and taken into possession by the police, vide recovery memos. 3. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that 2200 pouches of licit liquor were recovered from the possession of the petitioner-convicts without any permit or licence. In the background of these allegations and in pursuance of the indicated recovery, a criminal case was registered against the petitioner-convicts, by means of FIR No.96 dated 19.5.1999 on accusation of having committed an offence punishable under section 61 (1)(a) of the Punjab Excise Act, 1914 (hereinafter to be referred as “the Act”) by the police of Police Station Sadar Rewari in the manner depicted here-in-above. 4. After the completion of the investigation, the police submitted the final police report (challan). 4. After the completion of the investigation, the police submitted the final police report (challan). Consequently, the petitioner-convicts were accordingly charged for the commission of pointed offence and the case was slated for prosecution evidence by the trial Magistrate. 5. Sequelly, the prosecution examined PW1 HC Ram Dhan, PW2 Inspector Ram Kumar, PW3 HC Inder Singh, PW4 C. Subhash Chand, PW5 Excise Inspector Ram Lal and PW6 HC Munshi Ram in oral evidence, besides tendering certain documents in documentary evidence. 6. After the close of the prosecution evidence, the statements of the petitioner-convicts were recorded. The entire incriminating material appearing in the evidence, was put to enable them to explain any circumstance appearing against them in the evidence, as contemplated under Section 313 Cr.P.C. However, they have stoutly denied all the evidence of the prosecution in its entirety and pleaded false implication in this case. Similarly, in order to prove their plea of defence, they have examined DW1 Daulat Ram, DW2 Jai Narain and DW3 Babu Lal, who have maintained that the petitioner-convicts had good character and they were never involved in the sale & purchase of liquor. This is entire evidence on record. 7. Having completed all the codal formalities and taking into consideration the entire oral as well as documentary evidence brought on record by the parties, the trial Magistrate convicted & sentenced petitioner-convict Sarjit to undergo simple imprisonment for a period of three years, to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo SI for a period of two months, whereas petitioner-convicts Vikram & Raj Singh were convicted & sentenced to undergo rigorous imprisonment for a period of three years, to pay a fine of Rs.2000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of two months each under section 61(1)(a) of the Act, by way of impugned judgment of conviction & order of sentence dated 19.9.2001. 8. Aggrieved thereby, although the appeal filed by the petitioner-convicts was dismissed, but, their sentence was reduced to undergo simple imprisonment for a period of two years instead of three years by the appellate Court, by virtue of impugned judgment dated 9.1.2007. 9. The petitioner-convicts still did not feel satisfied and preferred the present revision petitions, to challenge the impugned judgments of conviction and orders of sentence, invoking the provisions of section 401 Cr.PC. 9. The petitioner-convicts still did not feel satisfied and preferred the present revision petitions, to challenge the impugned judgments of conviction and orders of sentence, invoking the provisions of section 401 Cr.PC. That is how I am seized of the matter. 10. After hearing the learned counsel for the parties, going through the evidence on record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petitions, as regards the conviction of petitioner-convicts is concerned. 11. Ex facie, the argument of learned counsel that since the evidence brought on record by the prosecution falls short as is required to prove a criminal case, so, the petitioner-convicts are entitled to acquittal, is not only devoid of merit but misplaced as well. 12. As is evident from the record, that the prosecution, in order to substantiate the charge framed against the petitioner-convicts, examined PW1 HC Ram Dhan, PW2 Inspector Ram Kumar, PW3 HC Inder Singh, PW4 C.Subhash Chand, PW5 Excise Inspector Ram Lal and PW6 HC Munshi Ram in oral evidence. The prosecution has also placed reliance on formal FIR (Ex.PW3/A), recovery memo (Ex.PW5/A), ruqqa (Ex.PW6/A), which formed the basis of FIR, site plan (Ex.PW6/B) of place of recovery and report (Ex.PZ) of Chemical Examiner in documentary evidence. 13. As is apparent on the record that PW5 EI Ram Lal and PW6 HC Munshi Ram were the most important recovery witnesses of the prosecution. They have, inter-alia, maintained, on oath, that in the wake of search, the indicated licit liquor was recovered from the vehicle as well as from the house of petitioner-convict Vikram on 19.5.1999 in the manner depicted here-in-above. Instead of reproducing the entire statements in toto and in order to avoid repetition, suffice it to say that they have duly corroborated the recovery of liquor and prosecution version on all vital counts. PW3 HC Inder Singh kept the case property in the store (Mal Khana) for safe custody. PW4 C.Subhash Chand deposited the sample with the Chemical Examiner, Narnaul. The chemical examination certificate, vide report (Ex.PZ) shows that the sample remained intact. Their testimony cannot possibly be discarded merely on the ground that they are police officials, as urged on behalf of petitioner-convicts. The learned counsel for petitioner-convicts did not point out any legal infirmity or major contradictions and inherent improbabilities in the statements of PWs. The chemical examination certificate, vide report (Ex.PZ) shows that the sample remained intact. Their testimony cannot possibly be discarded merely on the ground that they are police officials, as urged on behalf of petitioner-convicts. The learned counsel for petitioner-convicts did not point out any legal infirmity or major contradictions and inherent improbabilities in the statements of PWs. They were cross-examined at length, but no material, muchless cogent, could be elicited in their crossexamination to dislodge the prosecution version, which is otherwise proved by reliable, trustworthy, oral as well as documentary evidence, as discussed here-in-above. The mere fact that DW1 Daulat Ram, DW2 Jai Narain & DW3 Babu Lal have stated about the character and that petitioner-convicts were never involved in the sale and purchase of liquor, ipso facto, is not a valid ground to discard the prosecution evidence in this relevant direction. Moreover, all the other points, now sought to be urged on behalf of petitioner-convicts, have already been duly considered in the right perspective and negatived by the Courts below. Therefore, if the entire indicated evidence on record as depicted here-in-above, is put together, then, to me, the conclusion is inescapable that the prosecution has been able to prove the pointed charge against the petitioner-convicts in this relevant connection. 14. Faced with the grave situation, the learned counsel has fairly acknowledged that in view of the cogent evidence on record, he will not be in a position to contest the conviction of the petitioner-convicts any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version. In this manner, as no other legal infirmity has been pointed out by him, therefore, the impugned judgments of conviction are hereby maintained as such. 15. Be that as it may, the learned counsel has then contended with some amount of vehemence that the petitioner-convicts are first offenders, the Courts below did not record any cogent reasons to negate their plea to release them on probation and they are entitled to the benefit of probation in this respect. The learned State counsel has fairly acknowledged the factual matrix of the case. 16. Above being the position on record, now the short & significant question, though important, that arises for determination is, as to whether the petitioner-convicts are entitled to the benefit of probation or not ? 17. The learned State counsel has fairly acknowledged the factual matrix of the case. 16. Above being the position on record, now the short & significant question, though important, that arises for determination is, as to whether the petitioner-convicts are entitled to the benefit of probation or not ? 17. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the affirmative. 18. At the very outset, what cannot possibly be disputed here is that the object underlying the provisions of sections 4 and 6 of the Probation of Offenders Act, 1958 (for brevity “the Probation Act”) and sections 360 & 361 Cr.PC, broadly speaking, is that first offenders be not sent to jail for the commission of less serious offences, on account of grave risk to their attitude to life to which they are likely to be exposed as a result of their association with the hardened and habitual criminal inmates of the jail. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. This would clearly make more harm than to reform them, and for that reason, it would perhaps also be to an extent prejudicial to the larger interests of the society as a whole. Perhaps that was the reason that the mandatory injunction against imposition of sentence of imprisonment has been embodied in Section 6 of the Probation Act. This mandate is inspired by the desire to keep the young delinquent/first offenders away from the possibility of association or close contact with hardened criminals and their evil influence. Therefore, these beneficial provisions have to be liberally construed. 19. As is amply clear that Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, whereas Section 361 Cr.P.C. posits that “where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation Act, but has not done so, it shall record in its judgment the special reasons for not having done so.” 20. Sequelly, Section 4 of the Probation Act postulates that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of the opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour. 21. The combined and meaningful reading of these provisions would reveal that non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the petitioner-convicts under such circumstances. Meaning thereby, the petitioner-convicts are entitled to the concession of probation. 22. Having regard to the antecedents and other relatable factors, to me, it would be expedient in the interest and justice would be subserved, if the benefit of probation is granted to the petitioner-convicts, inter alia on the following grounds: i) It is not a matter of dispute that recovery of licit liquor was effected from the possession of petitioner-convicts on 19.5.1999 and they have already faced the pangs and suffered the agony of protracted trial, appeal & revisions for the last about 13½ years. ii) Petitioner-convict Sarjit was aged 65 years (senior citizen), whereas Raj Singh, who was aged 26 years and Vikram, who was aged 30 years, were young persons at the relevant time. iii) They have already undergone sentence for a period of 1½ months each out of total sentence of imprisonment for two years. iv) Petitioner-convicts are first offenders and there is no history of their previous conviction. v) They had good character and respectable persons. vi) The antecedent and credentials of the petitioner-convicts are such that they have not been found involved in any other case. iv) Petitioner-convicts are first offenders and there is no history of their previous conviction. v) They had good character and respectable persons. vi) The antecedent and credentials of the petitioner-convicts are such that they have not been found involved in any other case. vii) They have been leading a life of honest peaceful citizen in the locality. viii) There is no legal impediment to release the petitioner-convicts on probation. ix) According to DW1 to DW3, the petitioner-convicts had good character and they were never involved in the sale & purchase of liquor. x) Even the modern trend of penology also leans towards the reformation of the offenders, so as to make them a useful citizen of the society. No useful purpose was going to be achieved by again sending the petitioner-convicts to jail. 23. Therefore, taking into consideration the period of agony of protracted trial, appeal, revisions, antecedents of petitioner-convicts, totality of other facts & circumstances emanating from the record, as discussed here-in-above, to my mind, no useful purpose would be served in again sending them to jail to serve out the remaining period of sentence and instead of sending them to prison, they be released on probation under the present set of circumstances. Consequently, it is directed that petitioner-convicts be released on probation on their furnishing personal bonds (within two months) in the sum of Rs.25,000/- each with one surety of the like amount to the satisfaction of the trial Court, subject to the conditions that they would keep the peace and be of good behaviour, for a period of two years from the date of passing of this order. However, they are further directed to deposit a sum of Rs.2000/- each as costs of proceedings, as contemplated under section 5(1)(b) of the Probation Act. Needless to mention that in case, they are found to be indulged in any illegal activities and fail to deposit the costs of proceedings, the sentence awarded to them by the appellate Court shall stand revived. The remaining sentence of fine imposed on the petitioner-convicts by the Courts below is hereby maintained. 24. In the light of aforesaid reasons, the instant revision petitions are hereby dismissed on merits and the impugned judgments of conviction & order of sentence of fine are maintained. However, the order of sentence is accordingly modified to the extent and in the manner depicted herein above. 25. 24. In the light of aforesaid reasons, the instant revision petitions are hereby dismissed on merits and the impugned judgments of conviction & order of sentence of fine are maintained. However, the order of sentence is accordingly modified to the extent and in the manner depicted herein above. 25. Needless to mention that natural consequences & compliance will follow accordingly.