Karaj Singh vs State of Punjab

P.K. Jain, J.

This petition has been filed under section 401 of the Code of Criminal Procedure (for short the Code) against the order dated 16.2.1996 passed by the Additional Sessions Judge, Amritsar whereby the conviction and sentence of the petitioner for the offences under sections 324/325 of the Indian Penal Code, recorded by Judicial Magistrate, Tarn Taran vide his judgment/order dated 15.1.1994, have been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 300/ and in default of payment of fine to undergo further rigorous imprisonment for three months for the offence under section 325 of the Indian Penal Code and to undergo rigorous imprisonment for one year for the offence under section 324 of the Indian Penal Code. Both the substantive sentences have been ordered to run concurrently.

The case of the prosecution lies in a narrow compass. Samund Singh, the complainant, alongwith his family members has been residing in the farm house situated in his fields. Farm house of Surta Singh is also situated nearby and his land also adjoins the kacha passage which leads to the farm house of the complainant. There is a kikker tree standing on the boundary of the passage. About 14/15 days prior to the occurrence, a dispute arose between Surta singh and Samund Singh on the issue as to whether the former was entitled to use the passage and to cut the said kikker tree. However, the dispute was settled through the intervention of the panchayat and a compromise was effected whereby Surta Singh was not to use the passage and as well not to cut the kikker tree.

On. 4.1.1991 at about 3.00 P.M. Surta Singh armed with a dang and his son Karaj Singh (the petitioner herein) armed with a gandasi came to the said passage and asked the complainant to come out. When the complainant came out Surta Singh raised a lalkara that they would teach him a lesson for restraining them from using the said passage. While saying so, Surta Singh gave a dang blow on the left wrist of the complainant and the petitioner gave a gandasi blow to the complainant on his left leg and another gandasi blow from its reverse side on his right leg. When the complainant fell down on the ground, Surta Singh gave two dang blows on the shoulders of the complainant. On hearing the hue and cry raised by the complainant, his brother and wife Smt. Veera came to the spot whereupon both the accused ran away from the spot. Angrez Singh son of the complainant removed him to the hospital at Amritsar in a tractor trolley where he was examined by Doctor Gurmanjit Rai (PW.1) who prepared Ex.PB/1 the pictorial diagram and Ex.PB/2 the report of the said Doctor after the receipt of the Xray examination.

Efforts were being made by the members of the panchayat to get effected a compromise between the complainant and the accused persons but in vain. Consequently on 10.1.1991 the complainant, Samund Singh made his statement Ex.PA to the police whereunder endorsement Ex.PB/1 was made and the same was sent for the registration of a case on the basis of which First Information Report of this case was recorded. After completing the investigation a charge sheet for the offences under sections 326/323/34 I.P.C. was filed against the petitioner as well as his father Surta Singh.

A charge under section 326/323/34 I.P.C. was framed against both the petitioner and his father Surta Singh to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined four witnesses. Doctor Gurmanjit Rai (PW1) had medically examined the complainant Samund Singh on the day of the occurrence at about 7.10 P.M. and had prepared his medicologal report Ex.PB/1. After the receipt of the Xray examination record, he had given his report Ex.PB/2. Samund Singh (PW2) is the complainant and Smt. Veero (PW3) is his wife and the eye witness. Sub Inspector Hukam Singh (PW4) is the Investigating Officer.

In their statements recorded under section 313 of the Code, the accused denied the allegations of the prosecution and pleaded false implication. They examined Inspector Gurdev Singh as DW.1.

On appraisal of the evidence produced during the trial, the Judicial Magistrate, Tarn Taran convicted Surta Singh under section 323 I.P.C and ordered him to be released on probation of good conduct. The petitioner was also convicted and sentenced as stated above. The appeal filed by the petitioner against his conviction and sentence did not find favour with the Additional Sessions Judge and the same was dismissed by the impugned order. The petitioner has approached this court under section 401 of the Code.

Shri V.K. Chaudhary, Advocate, learned counsel for the petitioner at the stage of motion hearing confined himself to the question of sentence only imposed upon the petitioner. Therefore, notice of motion was issued to the Advocate General Punjab qua sentence only.

I have heard the learned counsel for the parties and have perused the record.

The learned counsel for the petitioner has argued that while passing the order of the sentence, the Trial Magistrate did not comply with the mandatory provisions of Sections 360 and 361 of the Code nor these provisions were examined by the appellate court. It has been argued by the learned counsel that the petitioner is not a previous convict; that his coaccused (father) has already been released on probation and there was nothing to discriminate against the petitioner. It has been argued that in the facts and circumstances of the present case, the petitioner should be released on probation of good conduct.

On the other hand, Shri Ramanjit Singh, learned Assistant Advocate General appearing on behalf of the State of Punjab has argued that the petitioner has been convicted for offences under section 324/325 I.P.C. which are serious in nature and the coaccused who was 85 years of age was convicted under section 323 I.P.C. Thus, it has been argued that the petitioner does not deserve the benefit of probation.

I have given my careful thought to the respective arguments advanced at the Bar.

Section 360 of the Code provides for release on probation of good conduct or after admonition any person not under twentyone years of age who is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or any person under twentyone years of age or any woman who is convicted of an offence not punishable with death or imprisonment for life, if no previous offence is proved against the offender, and if it appears to the Court, having regard 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 or after admonition. Section 361 of the Code which is mandatory in nature enjoins upon the court to record specific reasons if a convict is not dealt with under section 360 of the Code. In Bhishnu Deo Shaw v. State of West Bengal, 1979 Criminal Law Journal 841, the apex court made the following observations :

"Section 361 thus creates a duty upon the Court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the Court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the Legislature that reformation and rehabilitation of offenders and nor mere deterrence, are now among the foremost objects of the administration of criminal justice in our country."

Therefore, whenever the facts and circumstances of the case call for extension of the benefit conferred by Section 360 of the Code, it is the duty of the court to extend the said benefit. In case this benefit is denied, it is the duty of the courts to consider why compliance with the beneficial provisions could be dispensed with even if the accused did not made any such request.

In the present case, both the courts below have failed to record reasons for not extending the benefit of Section 360 of the Code to the petitioner. The only reason given by the trial court is that the offence under section 325 I.P.C. is punishable with imprisonment of seven years and keeping in view the serious nature of the offence, the petitioner could not be released on probation of good conduct. This approach, if I may say so, is totally contrary to the scheme and object of Sections 360 and 361 of the Coder. Even first Appellate Court did not advert to this aspect of the case and has merely stated that the petitioner has caused serious injuries on the person of the complainant . As already pointed out by the apex court in Bishnu Deo Shaw''s case (supra), the special reasons contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed.

In the instant case, it is not disputed that the petitioner is not a previous convict and has no past criminal history. The most important feature of the case in hand is that delay was caused by the complainant in lodging First Information Report with the police regarding the incident in question merely for the reason that if the offender would repent and apologise, he would not lodge any complaint against them. This circumstance in itself goes to show that the complainant was fully prepared to compromise with the petitioner and his father even at the initial stage. Admittedly the father of the petitioner has already been released on probation of good conduct. It is not the case of the prosecution that it is not possible to reform and rehabilitate the petitioner. The present case is fully covered by the beneficial provisions of Section 360 of the Code and the benefit of the said provisions must be extended to him.

For the reasons mentioned above, the conviction of the petitioner under section 324/325 of the Indian Penal Code is hereby affirmed. The petition is allowed in part. The sentence imposed upon the petitioner is set aside and he is ordered to be released on probation on his entering into a bond in the sun of Rs. 5000/ with one surety in the like amount to the satisfaction of the trial court to appear and receive the sentence when called upon within a period of one year and in the meantime to keep the peace and be of good behaviour. With this modification in the order of sentence, this revision stands disposed of.