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2013 DIGILAW 255 (HP)

THAKUR DASS v. STATE OF HIMACHAL PRADESH

2013-04-06

SANJAY KAROL

body2013
JUDGMENT SANJAY KAROL, J. - 1. MATTER was taken up at 11 a.m. 2. ON 9.6.2003, accused-petitioners Thakur Dass and Budhi Singh were found to have committed crime. On the basis of complaint made by Shri Hem Raj (PW-1), FIR No.35/03, dated 10.6.2003 (Ex. PW-1/A), under Sections 341, 323 and 506 read with Section 34 of the Indian Penal Code, was recorded at Police Station Nirmand, District Kullu, Himachal Pradesh. Matter was investigated. Investigation revealed complicity of the accused to the alleged crime. Hence, challan was presented in the Court for trial. Both the petitioners were charged for having committed offences, punishable under Sections 341, 323, 325 & 506 read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed trial. 3. IN order to establish its case, prosecution examined as many as eight witnesses and statements of the accused, under Section 313 of the Code of Criminal Procedure were also recorded, in which they pleaded false implication. 4. APPRECIATING the material on record, Court of Sub Divisional Judicial Magistrate, Ani, District Kullu, vide judgment dated 23.4.2004, in Case No.52-2 of 2003, titled as State versus Thakur Dass and another, convicted both the petitioners for having committed offences under Sections 341, 323, 325 and 506 read with Section 34 of the Indian Penal Code. Trial Court sentenced the petitioners to undergo simple imprisonment for a period of one month in relation to each of the offences punishable under Sections 341, 323 & 506 read with Section 34 of the Indian Penal Code and pay fine of Rs.500/-, Rs.1,000/- & Rs.1,000/-, respectively. With respect to offence punishable under Section 325 of the Indian Penal Code, trial Court, it seems, by some typographical error, has recorded that only accused-petitioner Thakur Dass has been convicted under the said offence, whereas in the operative portion of the judgment, the Court has convicted both the accused- petitioners in relation to the said offence. Sentence with regard to this offence, as awarded by the trial Court is six months and fine of Rs.2,000/-. Accused-petitioners assailed the same by filing an appeal. But however, such findings of fact and judgment of conviction and sentence were upheld by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, in terms of judgment dated 15.9.2005, passed in Criminal Appeal No.4 of 2004, titled as Thakur Dass and another versus State of Himachal Pradesh. Accused-petitioners assailed the same by filing an appeal. But however, such findings of fact and judgment of conviction and sentence were upheld by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, in terms of judgment dated 15.9.2005, passed in Criminal Appeal No.4 of 2004, titled as Thakur Dass and another versus State of Himachal Pradesh. 5. HENCE, the petitioners have filed the instant petition, under Sections 397 and 401 of the Code of Criminal Procedure, assailing the judgment of conviction passed by the trial Court as upheld by the lower Appellate Court. 6. AFTER the matter was heard for some time, Mr. Chaman Negi, learned counsel for the petitioners, who are present in the Court today, while not challenging the order of conviction, in relation to the charged offences, as has been so held by the Courts below, prayed that keeping in view the age of the petitioners and the fact that they are poor rustic villagers, benefit of Probation of Offenders Act be accorded to them. Report of the Probation Officer is also on record. Their case stands recommended, in terms of the said report. Keeping in view the attending circumstances and nature of the offences, I am not inclined to grant benefit of the Probation of Offenders Act to the present petitioners. 7. PETITIONERS are present in the Court. They submit that considering the long time gap since the occurrence of the offence and the other attending circumstances, a lenient view may be taken while imposing penalty of sentence and fine. Petitioner Thakur Dass states that now he is an old man of 75 years and that his wife is also bed ridden and he has to take care of her. Petitioner Budhi Singh states that he is of 72 years of age and suffering from ailments. The petitioners also submit that it is their first offence and have never violated any law either prior to the occurrence of the incident in question or thereafter. 8. RECORD reveals that the offence took place in the month of June, 2003. On visible appearance also, the petitioners appear to be ailing and persons of frail structure and health. At this juncture, considering all attending facts and circumstances, no useful purpose would now be served by sending them behind bars at this point in time. 8. RECORD reveals that the offence took place in the month of June, 2003. On visible appearance also, the petitioners appear to be ailing and persons of frail structure and health. At this juncture, considering all attending facts and circumstances, no useful purpose would now be served by sending them behind bars at this point in time. Considering the long passage of time and in view of the overall attending circumstances, as stated herein above, I am of the considered view that a lenient view ought to be taken in the matter and interest of justice would be served if the sentence of imprisonment of one month to six months, as awarded by the Courts below, is reduced till the rising of Court. Ordered accordingly. However, sentence with regard to fine is enhanced to an additional sum of Rs.5,000/- each for all the offences. Petitioners have already deposited the amount of fine, as ordered by the Courts below. They undertake to deposit the balance amount of fine before the trial Court within a period of four weeks from today. It is clarified that if the enhanced amount of fine is not so deposited within the aforesaid period, the petitioners-accused shall serve the sentences originally ordered by the trial Court. Hence, judgment of conviction and sentence as passed by the trial Court and affirmed lower Appellate Court is modified accordingly. With the aforesaid observations, present Revision Petition stands disposed of. Copy of this judgment be given to each of the petitioners free of cost.