Dharambir and Another vs State of Haryana

Gurdev Singh, J.—The Petitioners/accused, Dharambir and Om Parkash, were charged for the offence punishable u/s 411 IPC. They were tried and convicted by JMIC, Bhiwani, vide judgment dated 14.5.2002 and were sentenced to undergo rigorous imprisonment for a period of one year and to a fine of Rs. 1,000/- each and in default thereof to further undergo rigorous imprisonment for a period of one month. They preferred an appeal against that conviction and sentence, which was dismissed by the Additional District Judge (Adhoc), Bhwaini, vide judgment dated 17.12.2005. Now the present revision has been filed challenging that conviction and sentence.

The facts, in brief, are that Hans Raj, complainant (P.W. 1), was owner of the motor car, make Maruti, bearing No. MNA-5. On 9.11.1996, at about 10 p.m. he parked his motor car in front of his house from where the same was stolen by someone. About that theft, he gave written application Ex. PA to the officer in-charge police station Bawani Khera and on the basis thereof FIR Ex. P.W. 4/B was recorded. The investigation was conducted by Ramesh Kumar, Inspector, SHO (P.W. 4), who went to the place of theft and after inspecting the same, prepared rough site plan Ex. P.W. 4/C with correct marginal notes. On 11.11.1996, the complainant with the SHO and other police officer was going from Rohtak towards Jind in connection with tracing of the car, when both the accused were found coming in that car. The car was stopped and was duly identified by the complainant. Both the accused were arrested and the car was taken into possession, vide recovery memo Ex. PB. After completion of the investigation, challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offence punishable u/s 411 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, the prosecution examined Hans Raj (P.W. 1), Dharambir, Constable (P.W. 2), Ram Kumar, ASI (P.W.3) and Ramesh Kumar, Inspector (P.W. 4). After the close of the prosecution evidence, the accused were examined by the trial Court and their statements were recorded u/s 313 of the Code. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence.

I have heard learned Counsel for both the sides.

It has been submitted by the learned Counsel for the accused that he is only assailing the sentence so imposed upon the accused. He has made a prayer for the release of the accused on probation on the grounds that they are not previous convicts, have already undergone sentence of imprisonment for a period of more than one month, are poor agriculturists, having large families to support and have stood protracted trial for a number of years. However, the learned State Counsel has opposed that prayer by contending that for such an offence, the accused are not entitled to the benefit of probation.

At no stage the prosecution came out with the plea that the accused are previous convicts. The custody certificates were produced on record by the learned State Counsel himself. As per those certificates, Dharambir-accused has already undergone sentence of imprisonment for a period of two months and six days and the other accused has undergone the sentence for a period of one month and one day. It is also alleged that they were arrested on 11.11.1996 and have been standing their protracted trial since long. Their statements were recorded by the trial Court regarding mitigating circumstances for deciding the question whether they were entitled to the benefit of probation and at that time it was stated by Dharambir-accused that he has got aged mother and three children to look after, who are totally dependent upon him. Om Parkash-accused stated that he is a poor person and both his parents and other members of the family are dependent upon him.

Keeping in view the facts that the accused are not previous convicts, they stood protracted trial for all these years, the nature of the offence, their position in the life and their responsibility of taking care of their families, I think it proper and expedient to release them on probation instead of sentencing them at once to any punishment.

Accordingly, this revision is partly allowed. The sentence so imposed upon the accused is set aside and they are ordered to be released on probation u/s 360 of Code of Criminal Procedure on their executing personal bonds in the sum of Rs. 10,000/- each with one surety each in the like amount in each case for a period of two years to appear and receive the sentence as and when called upon to do so during that period and to keep peace and be of good behaviour in the meanwhile. They are directed to pay Rs. 5,000/-, each, as costs of the proceedings. The fine, if already deposited, shall be adjusted towards those costs. The bonds are to be furnished and costs are to be paid/deposited before the trial Court within three months of passing of this order, failing which this revision shall be deemed to have been dismissed.

Records of the trial Court be returned forthwith.