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2023 DIGILAW 361 (HP)

Udhami Ram v. State of Himachal Pradesh

2023-06-20

VIRENDER SINGH

body2023
JUDGMENT : (Virender Singh, J.) 1. The present revision petition has been filed by the petitioner against the judgment and order dated 10.9.2010/ 17.9.2010, passed by the Court of learned Sessions Judge, Chamba, District Chamba, H.P. (hereinafter referred to as the ‘Appellate Court’), in Criminal Appeal No.4 of 2010, titled as Udhami Ram versus State of Himachal Pradesh. 2. By way of the judgment dated 10.9.2019 and oder dated 17.9.2010, learned Appellate Court, has affirmed the judgment of conviction dated 29.03.2010 and order of sentence dated 31.3.2010, passed in Criminal Case No.29-II of 2003, by learned Judicial Magistrate First Class, Dalhousie, District Chamba, H.P. (hereinafter referred to as the ‘trial Court’). 3. Learned trial Court, vide judgment dated 29.3.2010, has convicted the petitioner for the offence punishable under Section 324 of the Indian Penal Code (hereinafter referred to as ‘the IPC’) and vide order dated 31.3.2010, the petitioner has been sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1000/ - and in default of payment of fine, the petitioner has been sentenced to undergo further simple imprisonment for seven days. 4. The said judgment of conviction and order of sentence has been upheld by the learned Appellate Court, vide judgment dated 10.9.2010. 5. Against the said order passed by the learned Appellate Court, the present revision petition has been filed, which has been admitted for final hearing on 11.11.2010. 6. Today, the case is fixed for arguments. 7. At this stage, learned counsel for the petitioner, under instructions, has stated, at the Bar, that the petitioner does not press the present petition against the judgment of conviction dated 29.03.2010, passed in Criminal Case No.29-II of 2003, titled as State of Himachal Pradesh versus Udhami Ram, by learned trial Court, which, in turn, has been upheld by learned Appellate Court, while dismissing the Criminal Appeal No.4 of 2010, vide judgment dated 10.9.2010 and prayed that the benefit of Probation of Offenders Act, 1958, may kindly be extended to the petitioner and he may kindly be released on probation. 8. In view of the said submissions, the present petition, by virtue of which, judgment of conviction has been assailed, is ordered to be dismissed. 9. 8. In view of the said submissions, the present petition, by virtue of which, judgment of conviction has been assailed, is ordered to be dismissed. 9. Now, so far as the prayer of the petitioner to release him on probation is concerned, the petitioner has been convicted for the commission of offence punishable under Section 324 IPC and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine, he has been ordered to undergo simple imprisonment for seven days. 10. A perusal of the record shows that, although, the learned trial Court has considered the question of releasing the petitioner on probation, but, for declining the said benefit, no reason has been assigned. 11. Record also does not demonstrate that the report of the Probation Officer, has been called for, before rejecting the prayer, made by the learned counsel appearing for the petitioner. 12. Learned Appellate Court has not even considered this fact, what to talk of giving the reasons for not extending the benefit of probation to the accused. The present is not a case, where the petitioner is found guilty of having committed an offence punishable with death sentence or imprisonment for life. 13. In order to grant the benefit of probation, it would be just and appropriate for this Court to reproduce Section 4 of the Probation of Offenders Act:- “Power of Court to release certain offenders on probation of good conduct. 13. In order to grant the benefit of probation, it would be just and appropriate for this Court to reproduce Section 4 of the Probation of Offenders Act:- “Power of Court to release certain offenders on probation of good conduct. 1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, 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 the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section(3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.” 14. This Court, on 12.5.2022, has called for the report of the Probation Officer, which is on the file. 15. The petitioner has been convicted for the first time, in the present case and he is having no criminal history. As per the report of the Probation Officer, no other scuffle or quarrel took place, after the incident, in question, in which, the accused has been booked for commission of the offence punishable under Section 324 IPC and subsequently, convicted. The Probation Officer has also recommended to extend the benefit of the probation under the Probation of Offenders Act. 16. Perusal of the record shows that the incident, in question, seems to be occurred, in a spur of moment, and does not seem to be premeditated. 17. Considering all these facts, especially the report of the Probation Officer and the fact that the petitioner is facing agony of trial since 19.12.2002, when, the case against him was instituted, in pursuance of the report submitted by the Police, under Section 173(2) Cr.PC., this Court is of the view that instead of sending the petitioner in judicial custody, to undergo substantive sentence, imposed upon him, by the learned trial Court, he is ordered to be released on probation, subject to furnishing personal bond in the sum of Rs.50,000/-with one surety in the like amount to the satisfaction of learned trial Court, to maintain good behaviour and peace for a period of two years from the date of furnishing the requisite bonds. 18. In addition to this, the petitioner is also directed to pay a sum of Rs.20,000/-, as compensation, to complainant Deep Kumar. 19. 18. In addition to this, the petitioner is also directed to pay a sum of Rs.20,000/-, as compensation, to complainant Deep Kumar. 19. Requisite bonds be furnished, as well as, the compensation be deposited, before the learned trial Court, within a period of one month from today. 20. It is further clarified that, if any of the conditions, is found to be violated, in that case, the revision petition filed by the petitioner, shall be deemed to have been dismissed and the petitioner will have to surrender before the learned trial Court to undergo the substantive sentence imposed upon him by the learned trial Court. 21. In view of the above, the revision petition is partly allowed and sentence is modified accordingly.