Shiv Kumar vs State of Punjab

P.K. Jain, J.

Shiv Kumar petitioner was tried and convicted by the Sub Divisional Judicial Magistrate, Anandpur Sahib, for an offence under Section 382, Indian Penal Code, and sentenced to undergo rigorous imprisonment for 1 1/2 years and to pay a fine of Rs. 1000/ and in default of payment of fine to further undergo rigorous imprisonment for 4 months, vide judgment dated September 1, 1993. In an appeal filed by the petitioner, his conviction was maintained but the sentence of imprisonment was reduced to rigorous imprisonment for one year and to pay a fine of Rs. 1000/, in default of payment of fine the petitioner to undergo rigorous imprisonment for two months, by the Additional Sessions Judge, Ropar, vide judgment dated July 11, 1995. Feeling aggrieved, the petitioner has approached this Court under Section 401 of the Code of Criminal Procedure.

The case of the prosecution, in brief, is that on 19.12.1991, Rachhpal Singh, a Military Sepoy on leave, along with his cousin Gurwinder Singh was going on scooter bearing No. PBR826, make Bajaj Chetak, owned by Harket Singh, from his village to Balachaur for bringing plough for his fields. When they reached near the Samadh of Peer Baba Karerian in the area of village Katta Sabour, at about 12.45 p.m. they found the petitioner on one side of the road. On a signal given by the petitioner raising his hand, they stopped the scooter. The petitioner immediately took out a dagger and at the point of the said dagger snatched the said scooter and went away towards Kanpur Khuhi. A report was lodged with S.I. Balwant Singh who along with his police party met them near the office of the Forest Department in village Jatpur. Statement of Rachhpal Singh was recorded, on the basis of which formal FIR was recorded. The police party along with the complainant and Gurwinder Singh made search for the petitioner and the scooter in two villages and then they along with Sukhwinder Singh Lambardar held nakabandi in village Bhanura. At about 5.15 p.m. the petitioner was noticed while coming from the side of village Kanpur Khuhi on that very scooter. He along with the scooter was identified by the complainant and Gurwinder Singh. From the search of the scooter, registration certificate in the name of Harket Singh (Exhibit P.1) and service book (Exhibit P2) were recovered. The scooter was taken into possession. The petitioner was arrested. On interrogation the petitioner made a disclosure statement, in pursuance of which he got recover a dagger Exhibit P.3. After completing the investigation a charge sheet was filed against the petitioner.

While accepting the testimony of the prosecution witnesses and disbelieving the defence plea, the Sub Divisional Judicial Magistrate convicted and sentenced the petitioner as stated above. His appeal against the conviction did not find favour with the Additional Sessions Judge, Ropar, However, the sentence was reduced, as stated above.

There is a consistent finding of both the Courts below that the complainant along with Gurwinder Singh was going on the said scooter and they stopped the same on a signal given by the petitioner; that the petitioner took away the said scooter by pointing out a dagger at them and ran away towards village Kanpur Khuhi but he was apprehended along with the said scooter the same day at about 5.15 p.m. The plea of the petitioner that the complainant Rachhpal Singh has not been examined who was a starwitness of the prosecution, has been rejected for the obvious reason that he being a military sepoy was not available and the other eyewitness Gurwinder Singh was examined at the trial besides Sukhwinder Singh, an independent public witness. The plea of the petitioner that the story of the prosecution was not probable in its nature, has also been turned down. The minor discrepancies pointed out by the petitioner in the testimony of various witnesses also did not find favour with both the Courts below on the ground that the same are minor and natural.

At the motion stage, after hearing the learned counsel for the petitioner and perusing the consistent finding of facts recorded by the two Courts below, notice was issued to the State only qua sentence upon the petitioner. It may be clarified that there is absolutely no irregularity or illegality in the appreciation of prosecution evidence by the two Courts below.

As regards the sentence, the learned counsel for the petitioner has argued that the petitioner is a young man of 30 years of age, having four children aged about 11/2 years, 4 years, 6 years and 7 years, besides his wife; that he has no landed property or any other source of income and is merely a streehawker; and that the petitioner is not a previous convict. On these grounds the learned counsel has impressed upon this Court that it is a fit case where the petitioner ought to have been released on probation instead of sending him to jail. While opposing this plea, learned State counsel has argued that the petitioner has committed a very serious offence particularly taking into consideration the days of militancy during which this offence was committed, the benefit of probation ought not have been given to him.

It is not disputed by the learned State counsel that the petitioner is not a previous convict and has no past criminal history. He has also not denied the averment that the petitioner is a hawker by profession and has got four little children besides his wife to maintain and there is no other source of income for his family. Keeping these facts in view and the nature of the offence committed by the petitioner, the plea of sentence is to be considererd.

The object of probation is threefold. Many offenders are not dangerous criminals but are weak characters who have surrendered to temptation or, through misfortune, have been brought within the operations of the police and the courts. Secondly, in assigning this type of offender to the care of probation officer, the court encourages his own sense of responsibility for his future and saves him from the stigma and possible contamination of prison. Thirdly, such a practice not only assists the offender, but also results in economy by relieving the prisons of a large number of first offenders, short term prisoners and other classes of quasicriminal offenders. The basic idea underlying a sentence to probation is very simple. Sentencing is in the large part concerned with avoiding future crimes by helping the defendant learn to live productively in the community which he has offended against. Probation proceeds on the theory that the best way to pursue this goal is to orient the criminal sanction towards the community setting in those cases where it is compatible with the other objectives of sentencing. Other things being equal the odds are that a given defendant will learn how to live successfully in the general community if he is dealt with in that community rather than shipped off to the artificial and a typical environment of an institution of confinement. These views find affirmation in a judgment of the apex Court rendered in Satto and others v. State of U.P., AIR 1979 Supreme Court 1519.

Keeping in view the law discussed above, the admitted facts and the nature of offence committed by the petitioner I am of the definite view that it is a fit case where the petitioner ought to be released on probation instead of shipping him off to the artificial and a typical environment of an institution of confinement.

Consequently, this revision succeeds in part. The conviction of the petitioner under section 382 of the Indian Penal Code recorded by both the Courts below is hereby affirmed. The sentence of imprisonment imposed upon the petitioner is hereby set aside and he is ordered to be released on probation for a period of one year on his entering into a bond in the sum of Rs. 1000/ with one surety in the like amount to the satisfaction of the trial Court to appear and receive sentence when called upon during the period of probation and in the meantime to keep the peace and be of good behaviour.

With this modification in the order of sentence, this revision is disposed of as above.