JUDGMENT : Instant appeal filed under S.374(3) CrPC, lays challenge to judgment of conviction and order of sentence dated 4.11.2008 passed by learned Additional Sessions Judge, Shimla, in Sessions Trial No. S-4/7 of 2004, whereby learned court below, while holding appellant-accused (hereinafter, ‘accused’) guilty of having committed offence punishable under S. 333 IPC, convicted and sentenced him to undergo simple imprisonment for one year and pay fine of Rs. 10,000 and in default of payment of fine, to further undergo simple imprisonment for one year. 2. Precisely, the facts of the case, as emerge from the record, are that complainant Hukam Chand, PW-1 got his statement recorded under S.154 CrPC at Police Station West Shimla, alleging therein that he had been rendering duties as a Home Guard for the last nine years. He further averred that he being a Home Guard was on duty in the intervening night of 30th and 31.7.2007 at New Market Committee Barrier Boileauganj. He alleged that while he was performing duties at the said Barrier, a truck bearing registration No.HP-23-3572 arrived at the barrier but when he signaled it to stop by blowing whistle, it was not stopped and as such, he again blew whistle. He alleged that the Truck was stopped 10 metres ahead of the barrier and when he asked him why he did not stop the truck at signal, accused alighted from truck and came in front of the window of the Marketing Committee. Complainant disclosed to the police that at that time, Yashpal and Tek Chand were on duty in the Committee office and when he asked the accused that why truck was not stopped, he said to complainant that he had no power to have vehicle stopped as he was simply a Home Guard. He alleged that soon the accused started giving beatings to him, as a consequence of which he suffered injuries on his face and thumb of left hand etc. He also alleged that his uniform shirt was also torn. After completion of investigation police presented challan in the competent court of law, who after having found prima facie case against the accused charged him for commission of offence punishable under S.333 IPC, to which the accused pleaded not guilty and claimed trial. 3. He also alleged that his uniform shirt was also torn. After completion of investigation police presented challan in the competent court of law, who after having found prima facie case against the accused charged him for commission of offence punishable under S.333 IPC, to which the accused pleaded not guilty and claimed trial. 3. Prosecution with a view to prove its case, examined 10 witnesses, whereas, accused in his statement recorded under S.313 CrPC denied the case of prosecution in toto and claimed himself to be innocent. However, he did not lead any evidence in his defence, despite opportunity. 4. Learned trial Court on the basis of evidence adduced on record by respective parties, held the accused guilty of having committed offence punishable under S.333 IPC and convicted and sentenced him as per description given above. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgment of conviction and order of sentence recorded by learned Court below. 5. Mr. L.N. Mehta, learned counsel for the accused, vehemently argued that perusal of judgment of conviction and order of sentence recorded by learned court below would go to show that the same is not based on proper appreciation of the evidence adduced on record by the parties and as such, same is not sustainable in the eyes of law. 6. Having scanned the entire evidence collected on record vis-à-vis the reasoning assigned by learned court below, while holding accused guilty of having committed offence punishable under S. 333 IPC, this court is convinced and satisfied that the prosecution has proved beyond reasonable doubt that on the date of alleged incident, accused not only misbehaved with the complainant, who at the relevant time was discharging public duties but also gave beatings to him, due to which the complainant suffered simple and grievous injuries on his person. 7. Though learned counsel for the accused made an attempt to persuade this court to agree with his contention that the prosecution was unable to prove on record that the complainant was discharging public functions at the time of incident, but careful perusal of evidence led on record reveals that the prosecution, by leading cogent and convincing evidence, successfully proved that on the date of alleged incident, complainant was on duty at Market Committee Barrier Boileauganj. 8. 8. One Shiv Lal Verma, Senior Assistant from the office of Commandant, Home Guards, 3rd Battalion, Shimla while appearing a PW-5, stated that he had brought with him the original appointment and posting orders and copies of same are exhibited as exts. PW-5/A and PW-5/B. This witness was not cross-examined. 9. Factum with regard to complainant being appointed at New Market Committee Barrier Shimla further stands proved by statement of Yashpal, PW-2, who at the relevant time was sitting in the office of Market Committee as an employee. No suggestion worth the name, ever came to be put to this witness that at the time of incident, complainant was not discharging public functions. 10. Similarly this court finds that all the material prosecution witnesses PW-1 Hukam Chand, PW-2 Yashpal and PW-3 Dinesh categorically deposed that on the date of alleged incident, Hukam Chand gave signal to the truck bearing registration No. HP-23-3572 being driven by PW-3 Dinesh Kumar to stop but he failed to stop the vehicle. PW-1 Hukam Chand again blew the whistle and when he enquired about reason for not stopping the truck, accused questioned his authority to stop the vehicle and thereafter gave beatings to the complainant. Version of PW-1, which is virtually replica of statement made under S.154 CrPC, as taken note herein above, stands duly corroborated with the statement of PW-2 Yashpal, who also produced original attendance register ext. PW-2/B. 11. Though, during cross-examination, it was found that on some entries in Register, fluid was applied and then duty hours were written on the fluid, however evidence available on record reveals that though this register was available on 31.7.2007 at Barrier but the Investigating Officer, for the reasons best known to him, did not take the same into possession and applied for its copy on 11.8.2007. This witness deposed that at 4.30 AM, the vehicle bearing registration No. HP-23-3572, arrived there but it was not stopped before barricade and as such, complainant Hukam Chand went on blowing whistle. He further deposed that the vehicle was stopped 10-15 metres ahead of the barricade, whereafter, the accused alighted from the vehicle. He deposed that the complainant asked that what was in vehicle and why same was not stopped before barricade. Accused stated that complainant was only a Home Guard and he was not required to disclose to him what was in the vehicle. He deposed that the complainant asked that what was in vehicle and why same was not stopped before barricade. Accused stated that complainant was only a Home Guard and he was not required to disclose to him what was in the vehicle. He deposed that the accused caught hold of the complainant by throat and gave him fist blows and knocked him down. Cross-examination conducted upon this witness nowhere suggests that the defence was able to shatter his testimony. Most importantly, Dinesh Kumar, PW-3, who at the relevant time was driving the truck bearing registration No.HP-23-3572 also admitted the factum with regard to quarrel inter se accused and the complainant Hukam Chand 12. PW-2 Yashpal, in his cross-examination, explained that what he meant by ‘quarrel’. He deposed that by the term quarrel he meant that manhandling took place up to two minutes only and therafer, it was only a verbal quarrel. Needless to say Dinesh Kumar, PW-3, was transporting the goods of accused at the relevant time and as such, he was the most independent witness and the best evidence available qua the incident. He nowhere refuted the case of the prosecution that scuffle took place inter se Hukam Chand, complainant and the accused. More over pattern of cross-examination conducted upon the prosecution witnesses itself suggests that the accused, after having alighted from vehicle went towards office of the Market Committee and questioned the very authority of the complainant Hukam Chand to ask reasons for not stopping the vehicle. 13. Though learned counsel for the accused, while referring to the statement of PW-2, argued that the version of this witness could not be given much weightage on account of his being an interested witness but he was unable to refute the fact that PW-2 is an employee of Marketing Committee whereas, complainant Hukam Chand was present on the spot being Home Guard, an employee of Home Guard Department. Moreover, no suggestion came to be put to this witness by the defence that he on account of his proximity with complainant is deposing in his favour. There is not even a single suggestion put to this witness that they are friends and related to each other, hence, learned court below rightly concluded that there is nothing on record to conclude that PW-2 is an interested witness. 14. There is not even a single suggestion put to this witness that they are friends and related to each other, hence, learned court below rightly concluded that there is nothing on record to conclude that PW-2 is an interested witness. 14. Similarly, PW-3 has no relationship if any with the complainant PW-1, rather he was transporting goods of accused at the relevant time but yet he gave true narration of facts with regard to altercation and scuffle inter se complainant and the accused on the date of alleged incident. 15. Prosecution has successfully proved on record injuries suffered by complainant in the alleged incident. PW-8, the Medical Officer, who medically examined the complainant found four injuries on the person of the complainant, out of which three were simple in nature and fourth one was grievous. 16. PW-6, Radiologist, to whom X-ray report of the complainant was sent, found 8th and 9th ribs of the complainant fractured, which injury was found to be grievous. 17. Consequently in view of detailed discussion made herein above above, this court finds no illegality or infirmity in the judgment of conviction and order of sentence recorded by learned court below, which appears to be based on proper appreciation of evidence adduced on record by the prosecution, as such, same are upheld, in result whereof the appeal is dismissed being devoid of merit. 18. Faced with aforesaid, learned counsel for the accused submits that having regard to the fact that the alleged incident happened in the year 2007 i.e. fourteen years back, coupled with the fact that now the accused has turned 65 years and during pendency of trial he has already undergone mental trauma on account of pendency of criminal cases against him, case of the petitioner may be considered for benefit of Probation of Offenders Act. 19. In support of the aforesaid arguments, learned counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Court in Yudhbir Singh Vs. State of Himachal Pradesh 1998 (1) S.L.J. 58, wherein it has been held as under : “9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. State of Himachal Pradesh 1998 (1) S.L.J. 58, wherein it has been held as under : “9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs.3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.” 20. In this regard, reliance is placed upon judgment of the Hon’ble Apex Court in Ramesh Kumar @ Babla Vs. State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under : “7. Accordingly the appeal is allowed in part by converting appellant’s conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life. 8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour.” 21. Reliance is also placed upon judgment passed by Hon’ble Apex Court Hari Kishan & Anr. Vs. Sukhbir Singh & Ors., 1988 AIR (SC) 2127, wherein it has been held as under : “8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:- “357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.” 22. In view of the aforesaid law as well as submissions having been made by learned counsel appearing on behalf of the accused and after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that the present petitioner-accused can be granted benefit of Section 4 of the Probation of Offenders Act, 1958, subject to payment of adequate compensation to the complainant. 23. Accordingly, Registry is directed to call for the report of the concerned Probation Officer on or before 7.1.2022. Registry to list this matter on 7.1.2022.