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2016 DIGILAW 889 (RAJ)

Gaffar Khan v. State of Rajasthan

2016-06-17

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. The appellants herein have approached this Court by way of the instant appeal assailing the judgment dated 30.3.1995 passed by learned Addl. Session Judge, Phalodi in Session Case No. 11/1994 whereby the learned Addl. Sessions Judge, whilst acquitting the appellants herein from the charges under Sections 148 and 307 I.P.C., convicted them for the offences under Sections 323 and 147 I.P.C. and sentenced them as below:- 323 I.P.C. One year R.I. and a fine of Rs. 200/-, in default to further undergo one month S.I. 147 I.P.C. One month R.I. and a fine of Rs. 50/-, in default of payment of fine to further undergo 5 days S.I. All the sentences were ordered to run concurrently. 2. Learned Counsel for the appellant at the outset does not challenge the conviction of the appellants as recorded by the Trial Court but prays that as the offences under Sections 323 and 147 I.P.C. carry a maximum punishment of one year only, looking to the mandatory provisions of Sections 360 and 361 Cr.P.C. as well as the Probation of Offenders Act, the learned Trial Court erred in not extending the benefit of probation to the appellants herein. He, therefore, prays that while accepting the appeal in part the appellants may be directed to be released on probation. 3. Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the appellants' Counsel. He submits that the learned Trial Court acted with undue benevolence while acquitting the appellants from the charge under Section 307 I.P.C. He urged that the appellants herein assaulted and inflicted no less than 20 injuries to the injured Pawan Kumar all over his body. He thus submits that there is no justification for extending the benefit of probation to the appellants. 4. I have heard learned Counsel for the appellants and the learned Public Prosecutor. Perused the material available on record. 5. The injured Pawan Kumar was caused as many as 20 injuries by blunt weapons in the incident. Injury No. 1 was on his head whereas other injuries are on the non vital parts of the body. Upon conducting X-Ray examination, the head injury was found to be simple in nature. The Doctor who examined the injured did not opine that the injuries were life threatening. Injury No. 1 was on his head whereas other injuries are on the non vital parts of the body. Upon conducting X-Ray examination, the head injury was found to be simple in nature. The Doctor who examined the injured did not opine that the injuries were life threatening. In this view of the matter, this Court is of the opinion that the learned Trial Court was not totally wrong in acquitting the appellants herein from the charge under Section 307 I.P.C. However, the conviction of the appellants as recorded by the Trial Court for the offences under Sections 323 and 147 I.P.C. cannot be questioned looking to the convincing and unflinching evidence of the prosecution witnesses. The incident occurred in the year 1994. The appellants remained in custody for some time during the course of investigation. Thus, it would be unjust to send them back to custody after nearly 22 years of the incident. Thus, this Court is of the opinion that the appellants deserve to be released on probation with a condition of paying appropriation compensation to the injured. 6. Accordingly, the appeal deserves to be and is hereby allowed in part. While maintaining the conviction of the appellants as recorded vide impugned judgment dated 30.3.1995, it is hereby ordered that they shall be released on probation by giving them benefit of Section 4 of the Probation of Offenders Act upon furnishing probation bonds to the satisfaction of the Trial Court to keep peace and be of good behaviour for a period of two years and in addition thereto to deposit compensation to the tune of Rs. 25,000/- for being paid to the injured complainant Pawan Kumar. The probation bonds as well as the amount of compensation shall be deposited in the Trial Court within a period of four months from today failing which the sentences awarded to the appellants by the Trial Court shall stand restored and will be executed. The amount of compensation upon being deposited shall be disbursed to the injured Pawan Kumar forthwith. Record be sent back.