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2016 DIGILAW 854 (RAJ)

Omprakash v. State of Rajasthan

2016-06-09

GOVERDHAN BARDHAR

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JUDGMENT 1. - This criminal revision petition has been filed by the accused-petitioners under Section 397/401 Cr.P.C. against the judgment and order dated 19.11.1998 passed by the Additional Sessions Judge No.1, Sri Ganganagar (for short "the appellate court") in Criminal Appeal No.25/1997 whereby the learned appellate Court has allowed the appeal filed by the State and set aside the judgment and order dated 13.11.1996 passed by the Civil Judge (J.D.)-cum-Judicial Magistrate, First Class, Sadulshahar (for short "the trial court") in Criminal Case No.377/1995 whereby the learned trial court while convicting the accused-petitioners for offences under Sections 452, 323, 325 IPC, had given the benefit of probation. The learned appellate court has reversed the order of the trial court and convicted the accused-petitioners and sentenced them as stated below : Offence Sentence awarded by the trial court U/s 452 IPC To undergo one year's rigorous imprisonment and to pay a fine of Rs.2,500/- and in default of payment of fine to further undergo three months' simple imprisonment. Offence Sentence awarded by the trial court U/s 325 IPC To undergo one year's rigorous imprisonment and to pay a fine of Rs.2,500/- and in default of payment of fine to further undergo three months' simple imprisonment. U/s 323 IPC To pay a fine of Rs.500/- and in default of payment of fine to undergo fifteen days' simple imprisonment. 2. Briefly stated the facts of the case are that on 09.11.1995 the complainant Lalchand lodged an FIR at Police Station Sadulshahar alleging therein that in the evening at about 9 O'clock, when he was sleeping in his house, Shankerlal and Omprakash entered in the house armed with Lathi and Gandasi and inflicted injuries to him and his wife. On the basis of the said complaint, the Police registered the FIR against the accused-petitioners for offences under Sections 452, 323, 324 IPC and commenced investigation. 3. After necessary investigation, the Police filed challan against the accused-petitioners for offences under Sections 452, 325, 324, 323 IPC. The trial court after hearing learned counsel for the parties and on the basis of the materials on record framed charges against the accused-petitioners for offences under Sections 452, 323, 325 IPC. They pleaded not guilty and claimed to be tried. The prosecution examined as many as 9 witnesses. Thereafter the statements of the accused-petitioners were under Section 313 Cr.P.C. In defence, one witness was examined. 4. They pleaded not guilty and claimed to be tried. The prosecution examined as many as 9 witnesses. Thereafter the statements of the accused-petitioners were under Section 313 Cr.P.C. In defence, one witness was examined. 4. At the conclusion of the trial, the learned trial Court vide its judgment and order dated 13.11.1996 while convicting the accused-petitioners for offences under Sections 453, 323, 325 IPC, had given the benefit of probation under the Probation of Offenders Act for a period of one year from 13.11.1996 looking to the fact that this was their first offence. Being aggrieved by order of probation, the respondent-State preferred an appeal before the Additional Sessions Judge No.1, Sri Ganganagar, who by his judgment dated 19.11.1998 reversed the order of the trial court and sentenced the accused-petitioners for the offences stated above. Hence, this revision petition. 5. Mr. M.K. Garg, appearing for the appellant-petitioners has submitted that the learned appellate court has committed a gross illegality in reversing the order of giving probation and in passing a sentence against the accused-petitioners for the reason that the accused-petitioners are the first offender and that was their first offence. This very provision of giving probation to the first offender is mandatory in nature but the learned appellate court has not considered this legal fact and sentenced the petitioners even after the completion of period of probation. It is further submitted that the accused-petitioners were first offender and for which they have suffered more than three years appearance in the court on each date of hearing as also they furnished the bonds before the trial court for maintaining the condition of probation for a period of one year from 13.11.1996 but this aspect was not considered by the appellate court and convicted and sentenced the accused-petitioners merely on the basis of conjectures and surmises and without assigning any reason ordered the accused-petitioners to undergo the sentence. It is submitted that the appellate court has committed a gross illegality in not considering the mandatory provisions of Probation of Offenders Act whereas the provisions of the said Act are specifically enacted for trial being of society and to give a change to the first offender to improve himself in the society and to live as a social man without any black spot of conviction. 6. 6. On the other hand, the learned Public Prosecutor has argued that the accused-petitioners were rightly convicted and sentenced by the appellate court as they were entered in the house of the complainant armed with lathi and gandasi and inflicted injuries to him and to his wife. It is submitted that the offence committed by the accused-petitioners is a serious one. It is submitted that the judgment passed by the learned appellate court is just and proper and warrants no interference at the hands of this Court. 7. I have considered the arguments advanced by learned counsel for the parties and also gone through the impugned judgment passed by the learned appellate court as well as record of the case. 8. It is the case of the prosecution that accused-petitioners entered in the house of the complainant armed with lathi and gandasi and inflicted injuries to him and his wife. It is the admitted fact that this was the first offence of the accused-petitioners and being the first offender they are entitled to get the benefit of provisions of Probation of Offender Act so that they can get a chance to improve themselves in the society and live as a social man. The learned appellate court while reversing the order of probation did not consider the fact that the accused-petitioners were the first offender. The learned appellate court further failed to consider the mandatory provisions of Probation of Offenders Act and thereby committed gross error of law. 9. In my considered opinion, the learned trial court has rightly given the benefit of probation to the accused-petitioners. But the learned appellate court has reversed the well considered order of probation and convicted and sentenced the accused-petitioners merely on the basis of conjectures and surmises and further without assigning any reason ordered the accused-respondents to undergo the sentence. The judgment passed by the learend appellate court, in the facts and circumstances, is not just and proper and liable to be set aside. 10. Accordingly, the revision petition is allowed. While upholding the judgment and order dated 13.11.1996 passed by the Civil Judge (J.D.)-cum-Judicial Magistrate, First Class, Sadulshahar in Criminal Case No.377/1995, the impugned judgment and order dated 19.11.1998 passed by the Additional Sessions Judge No.1, Sri Ganganagar in Criminal Appeal No.25/1997 is quashed & set aside. *******