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2019 DIGILAW 1945 (PNJ)

Rajinder Kumar v. State of Punjab

2019-07-04

HARNARESH SINGH GILL

body2019
JUDGMENT : HARNARESH SINGH GILL, J. 1. The present criminal revision has arisen out of the judgment dated 07.03.2015 passed by Additional Sessions Judge, Amritsar, vide which criminal appeal filed by State of Punjab, challenging the judgment dated 11.08.2014 passed by Judicial Magistrate Ist Class, Amritsar in case FIR No. 93 dated 12.07.2009, under Section 27 of the Arms Act and Section 336 of the Indian Penal Code (for short 'IPC') registered at Police Station A Division, Amritsar City, was allowed. 2. Brief facts of the present case are that on 12.07.2009 at about 7:00 p.m. complainant-ASI-Amrik Singh along with other police officials were on checking duty at Gate No.1 of the Bus stand where they received message on mobile phone that at city Centre near Akali Phool Singh Transport Area, one youth had fired 3 shots in air from a pistol in a rash and negligent manner so as to endanger human life and personal safety of others. Complainant, ASI-Amrik Singh, along with others reached the place of occurrence where they caught hold the accused-petitioner with the pistol in his hand. Upon asking, the petitioner had disclosed his name as Rajinder Kumar and the 9 mm pistol, which he was holding in his right hand was unloaded. From the magazine, 7 live cartridges and 3 empty cartridges were got recovered and they were taken into police possession. After completion of investigation and necessary formalities, challan was presented against the petitioner-accused. 3. Charges were framed under Sections 336 of IPC read with Section 27 of the Arms Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution had examined as many as six witnesses. 5. The trial Court vide judgment dated 11.08.2014 acquitted the petitioner of the charges framed against him due to lack of incriminating evidence and by extending him the benefit of doubt. 6. Aggrieved of the said judgment, State of Punjab preferred an appeal before the Additional Sessions Judge, Amritsar, which was allowed. 5. The trial Court vide judgment dated 11.08.2014 acquitted the petitioner of the charges framed against him due to lack of incriminating evidence and by extending him the benefit of doubt. 6. Aggrieved of the said judgment, State of Punjab preferred an appeal before the Additional Sessions Judge, Amritsar, which was allowed. Vide the impugned judgment dated 07.03.2015, the petitioner was convicted under Sections 336 of IPC and 27 of the Arms Act and sentenced as to undergo rigorous imprisonment for two months and to pay fine of Rs.200/- under Section 336 of IPC and in default of payment of fine, to further undergo simple imprisonment for two days and rigorous imprisonment for three years and to pay a fine of Rs.3000/- under Section 27 of the Arms Act and, in default of payment of fine, to undergo simple imprisonment for one month. 7. Learned counsel for the petitioner has argued that the story propagated by the prosecution is not believable due to lack of incriminating evidence as the prosecution has failed to prove the guilt of the petitioner beyond the shadow of reasonable doubt and it has not been appreciated by the appellate Court that the link evidence is missing in the present case due to non-examination of M.H.C., with whom the case property was deposited for sending the same to the Forensic Chemical Laboratory for analysis. It has been further argued that H.C.-Gurpreet Singh, who appeared as PW-1 deposed in his cross-examination that the possession of the pistol plus live cartridges and magazine was not proved on the file and no offence under Section 336 of IPC is made out because there is no report of ballistics expert to the effect that 9 mm pistol was in proper working condition. Thus, the entire prosecution story is suspicious and highly doubtful as Head Constable-Jagtar Singh has not corroborated the version of the Investigating Officer, regarding the other recovery witnesses. The recovery witness, HCGurpreet Singh has not been examined in the present case to corroborate the version of the Investigating Officer with the other recovery witnesses. PW3- ASI, Mohinder Singh stated that his statement was recorded on 20.10.2009 i.e. Ex.DA and there is overwriting at point 'A' and at point 'B'. Other than this, digit 15' is written after overwriting in a different ink. 8. PW3- ASI, Mohinder Singh stated that his statement was recorded on 20.10.2009 i.e. Ex.DA and there is overwriting at point 'A' and at point 'B'. Other than this, digit 15' is written after overwriting in a different ink. 8. Moreover there is no sufficient evidence on record to connect the petitioner with the alleged occurrence of firing 3 shots in air from 9 mm pistol without any provocation. There is no eye-witness to the incident and that nobody has got injured and there is no medical record to authenticate that the petitioner was under the influence of intoxication. In the present case non-examination of witnesses from public place also goes against the prosecution. The investigation has been done in a shady manner. 9. Per contra, learned State counsel has argued that prosecution had examined six witnesses and one pistol 9 mm EW4 689 with 30 live cartridges and magazine, one brush, one box were handed over to the petitioner for handing over to Inspector Sukhdev Singh, Incharge P.A.P, who was deputed at Punjab National Bank, Town Hall. The petitioner was also directed to hand over the receipt. It has been further argued that the documents viz. sketch of pistol PW2/A, recovery memo of parcel Ex.PW2/B, Arrest-cum-intimation memo Ex.P2/C, personal search memo Ex.P2/D stood proved on the file. Thus, while considering and appreciating the same, the appellate Court has rightly convicted the petitioner. 10. I have heard learned counsel for the parties and with their able assistance, have gone though the record of the case. 11. In the present case the point of determination is whether on 12.07.2009 at about 7 p.m. in the area of City Centre Road, Akali Phoola Singh near Burj Kanwar Transport, Amritsar, accused-petitioner fired shots in air from fully loaded magazine rashly and negligently so as to endanger human life and personal safety of others and pistol 9 mm with 7 live cartridges was recovered or not? 12. To my mind, after going through the findings recorded by the appellate Court based on the evidence on record, the prosecution has been able to prove the guilt of the petitioner. 13. Thus while upholding the conviction awarded by the appellate Court, in my opinion, it is a fit case which fulfills the ingredients of granting probation. Admittedly, the petitioner has been facing the agony of trial for the last 9 years. 13. Thus while upholding the conviction awarded by the appellate Court, in my opinion, it is a fit case which fulfills the ingredients of granting probation. Admittedly, the petitioner has been facing the agony of trial for the last 9 years. Besides, the petitioner is not a previous convict. Thus, no useful purpose will be served by sending the petitioner behind the bars once again to undergo the remaining sentence. It is a fit case, where the petitioner, who is otherwise not reflected to be a previous offender, can be released on probation. 14. In my view, Sections 360 and 361 of the Code of Criminal Procedure would mandate a Court to consider the release of an accused on probation. Section 360 Cr.P.C. reads as under:- 360. Order to release on probation of good conduct or after admonition. (1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, 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: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by subsection (2). (2) Where proceedings are submitted to a Magistrate of the first class as provided by sub- section (1), such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. (3) In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860 ), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition. (4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) When an order has been made under this section in respect of any offender, the High Court or Court of Session may, on appeal when there is a right of appeal to such Court, or when exercising its powers of revision, set aside such order, and in lieu thereof pass sentence on such offender according to law: Provided that the High Court or Court of Session shall not under this subsection inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (6) The provisions of sections 121, 124 and 373 shall, so far as may be, apply in the case of sureties offered in pursuance of the provisions of this section. (7) The Court, before directing the release of an offender under sub- section (1), shall be satisfied that an offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which the Court acts or in which the offender is likely to live during the period named for the observance of the conditions. (8) If the Court which convicted the offender, or a Court which could have dealt with the offender in respect of his original offence, is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (9) An offender, when apprehended on any such warrant, shall be brought forthwith before the Court issuing the warrant, and such Court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned on his appearing for sentence and such Court may, after hearing the case, pass sentence. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." 15. (10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders." 15. After going through the Section 360 Cr.P.C., it is clear that when any person not under 21 years of age is convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, or where any person under 21 years of age or any woman is convicted for an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender and if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that the offender should be released on probation of good conduct, 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. 16. Resultantly, while upholding the conviction of the petitioner as recorded by the appellate Court, his substantive sentence of imprisonment is set aside. Instead, he is ordered to be released on probation for a period of one year subject to his executing bonds to the satisfaction of the Chief Judicial Magistrate concerned, undertaking to keep peace and be of good behaviour for the said period and to appear and receive the sentence as and when called upon to do so in case of violation of any of the conditions of the bonds. However, the fine imposed upon the petitioner is enhanced to Rs.30,000/-. The petitioner is directed to deposit the said fine with the trial Court within two months from today. It is made clear that in case the enhanced fine is not deposited, as ordered above, or if the petitioner is found to have involved himself in criminal activities during the period of probation, then this revision shall be deemed to have been dismissed. 17. With the above mentioned modification, the revision petition stands disposed of.