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2014 DIGILAW 1573 (RAJ)

Hari Baksh v. Prithvi Singh

2014-09-23

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT 1. - Present revision petition under Section 397 read with Section 401 Cr.P.C. has been filed by the complainant-petitioner to assail the judgment dated 14th March, 2001 rendered by the lower appellate Court whereby the Court of Additional Sessions Judge, No.2, Sikar acquitted accused-respondent No.1 Prithvi Singh of offence under Section 326 read with Section 34 IPC and held him guilty of offences under Section 323 and 447 IPC and released him on probation at the same time, having maintained conviction of Bhanwar Singh under Section 326 IPC, released him on probation too. 2. Counsel for the petitioner has submitted that a grave error was committed by the Additional Sessions Judge, No.2, Sikar while maintaining conviction of accused-respondent No.2 Bhawani Singh under Section 326 IPC to release him on probation, as same is not permissible. 3. Briefly stated accused respondent No.1 Prithvi Singh and accused-respondent No.2 Bhawani Singh were tried by the Court of Additional Chief Judicial magistrate, Sikar on the complaint lodged by the petitioner-complainant. Hari Baksh complainant alleged that on 16th November, 1988 at about 2.45 P.M. accused-respondents Prithvi Singh and Bhawani Singh along with Ummed Singh and Amar Singh attacked him. Bhawani Singh by teeth bite chopped off ear of complainant Hari Baksh. 4. Trial Court vide its judgment and order dated 20th August, 1997 held accused-respondents Bhawani Singh guilty of offences under Section 447, 326 and 323 IPC read with Section 34 IPC and convicted Prithvi Singh for the offences under Section 447, 323 and 326 IPC read with Section 34 IPC. Trial Court after convicting the accused-respondents for above offences awarded them sentence under the various counts. The maximum sentence awarded for offence under Section 326 IPC was two years. 5. Aggrieved against the same, accused-respondents Prithvi Singh and Bhawani Singh had filed an appeal. The lower appellate Court acquitted the accused-respondent Prithvi Singh of offence under Section 326 IPC read with Section 34 IPC and held him guilty of offences under Section 323 and 447 IPC. Having modified the judgment of the trial Court to above extent, lower appellate Court released both accused-respondents Prithvi Singh and Bhawani Singh on probation. 6. Shri Sanjay Mehla, counsel appearing for the complainant-petitioner has submitted that offence under Section 326 IPC prescribe life imprisonment and, therefore, accused-respondent No.2 Bhawani Singh could not have been released on probation. 7. Having modified the judgment of the trial Court to above extent, lower appellate Court released both accused-respondents Prithvi Singh and Bhawani Singh on probation. 6. Shri Sanjay Mehla, counsel appearing for the complainant-petitioner has submitted that offence under Section 326 IPC prescribe life imprisonment and, therefore, accused-respondent No.2 Bhawani Singh could not have been released on probation. 7. Shri Biri Singh Sinsinwar, Senior Counsel assisted by Shri Amit Singh Shekhawat, has contended that a grievous injury caused due to teeth bite will fall under Section 325 IPC and hence, accused-respondent No.2 Bhawani Singh could not be released on probation. 8. A perusal of the lower appellate Court judgment reveal that said Court had acquitted accused-respondent No.1 Prithivi Singh of offence under Section 326 read with Section 34 IPC and while maintaining conviction of accused-respondent No.2 Bhawani Singh under Section 326 IPC, had released him on probation. The course adopted by the lower appellate Court is not tenable in the eyes of law as for offence where maximum imprisonment prescribed is life imprisonment, accused cannot be released on probation. 9. Consequently, without expressing anything on the merits of the case or whether offences under Section 325 or 326 is made out or not, lest, it may not prejudice the lower appellate Court, the judgment dated 14th March, 2001 rendered by Additional Sessions Judge, No.2, Sikar is set aside. The matter is remitted back to the lower appellate Court to decide appeal afresh after noticing the contention of the rival parties regarding sustainability of the conviction, offence and the sentence awarded by the trial Court.Revision Allowed. *******