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Judgment
Mahesh Grover, J.—This common judgment will dispose of the above mentioned two revision petitions and one appeal which have been preferred against judgment dated 3.12.1991 of the Additional Sessions Judge, Karnal (hereinafter referred to as the appellate Court'').
Petitioners-Raghunath, Chaman Lal, Ashok Kumar, Narinder Kumar, Jagdish Kumar and one Mohinder Kumar had faced prosecution pursuant to F.I.R. No. 378 dated 20.11.1985 registered against them under Sections 148, 326, 325, 324, 323 and 149 of the I.P.C. at Police Station, Sadar Karnal on the basis of the statement of complainant-Pindi Dass (petitioner in Crl. Revision No. 782 of 1991).
On the basis of the material on record, Chief Judicial Magistrate, Karnal (described hereinafter as `the trial Court'') vide his judgment dated 18.9.1989 acquitted Mohinder Kumar, but convicted Raghunath and others under Sections 148, 326/149, 325/149 and 323/149 of the I.P.C. and sentenced them as under:
for offence under Sections 326/149 of the I.P.C. to undergo rigorous imprisonment for five years and to pay fine of Rs. 5000/-each. In default of payment of fine, they were directed to suffer further rigorous imprisonment for one year;
for offence under Sections 325/149 of the I.P.C. to undergo rigorous imprisonment for two years with fine of Rs. 500/each and in default of payment of fine, to undergo rigorous imprisonment for further period of six months;
for offence u/s 148 of the I.P.C., to undergo rigorous imprisonment for six months; and
for offence under Sections 323/149 of the I.P.C. to undergo rigorous imprisonment for three months.
However, all the sentences were ordered to run concurrently and the period already undergone was directed to be set off. Feeling aggrieved, petitioners -Raghunath and others filed an appeal against their conviction and sentence awarded by the trial Court. The appellate Court, by the impugned judgment, maintained their conviction as recorded by the trial Court, but reduced the sentence of imprisonment awarded to them under Sections 326/149 of the I.P.C. from five years to three years and maintained all other sentences and fine.
Thereafter, petitioners-Raghunath and others filed Crl. Revision Petition No. 757 of 1991 for setting aside their conviction & sentence, whereas complainant-Pindi Dass filed Crl. Revision No. 782 of 1991 for enhancement of sentence awarded to Raghunath and Ors. and for grant of compensation to him and to the other injured, i.e., his son. The State of Haryana filed Crl. Appeal No. 100-SB of 1992 for enhancement of sentence of Raghunath etc. for the offence u/s 326 of the I.P.C. When these cases were taken up by this Court for disposal on an earlier occasion, it was observed in judgment dated 8.5.2006 as under: The incident in the present case took place in the year 1985. Petitioners have been convicted and sentenced under Sections 326 read with Section 149 IPC, 325 read with Section 149 IPC, 148 and 323 read with Section 149 IPC by the trial Court and on appeal before the Additional Sessions Judge, Karnal while upholding the sentences under the remaining Sections, sentence imposed upon the petitioners had been reduced to three years rigorous imprisonment u/s 326/149 IPC. As argued on behalf of the petitioners, more than 20 years have elapsed since the date the incident took place and in these circumstances sending them back to prison would not serve the ends of justice. The parties by now would have forgotten about the incident and may even have patched up their differences. Taking all these aspects into consideration, especially when the petitioners have been sentenced only to three years of rigorous imprisonment, I consider it appropriate to deal with them u/s 360 Cr.P.C. and reduce the sentence to the extent already undergone while enhancing the fine imposed on them to Rs. 15000/-each out of which 50% shall be payable to the injured and it is further directed that the petitioners be released on probation on their entering into a bond in the sum of Rs. 25,000/ with one surety of the like amount each for a period of two years with the following undertakings:
That they would keep peace and be of good behavior failing which they would appear before the Court for undergoing the remaining period of their sentence as and when called upon to do so during the aforesaid period;
That they do lead an honest and industrious life; and
That they would deposit a sum of Rs. 15000/-as fine within two months from today, out of which, if deposited, 50% shall be payable to the injured.
In the event of failure to deposit Rs. 15000/-each as fine within the stipulated period, the revision petition shall be deemed to have been dismissed without any further reference to the Bench. Except for the above modification, Criminal Revision No. 757 of 1991 fails and is dismissed.
In view of the above, Criminal Appeal No. 100-SB of 1992 filed by the State of Haryana and Criminal Revision No. 782 of 1991 filed by the petitioner-Pindi Dass for enhancement of the sentence fail and are dismissed accordingly.
The matter then traveled to the Supreme Court and their Lordships vide judgment dated 14.2.2008 accepted the appeals and set aside judgment dated 8.5.2006 and remitted the matter for consideration afresh by noticing that the provisions of Section 360 of the Cr.P.C. are not applicable to the facts of the instant case as Section 326 of the I.P.C. carries the punishment of life imprisonment. It was also clarified in the judgment of the Apex Court that the provisions of the Probation of Offenders Act,1958 (for short, `the Act'') have the application and Section 360 of the Cr.P.C. has no applicability.
The matter has now been taken up for hearing afresh in view of the observations of the Supreme Court.
I have heard the learned Counsel for the parties. Section 4 of the Act reads as under:
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 behavior;
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 pinion 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.
An analysis of the above reproduced provisions of law shows that a Court is empowered to release an offender on probation of good conduct if, in its opinion, this is expedient to do so, provided that it will ensure that the offender or his or her surety, if any, has a fixed place of abode or regular occupation in the place over which it exercises jurisdiction or in which he or she is likely to live during the period for which he or she enters into the bond.
While disposing of these cases on 8.5.2006, this Court had given reasons for invoking the provisions of Section 360 of the Cr.P.C. One of the reasons was that more than twenty years have elapsed since the date of occurrence and that the parties by then would have forgotten the incident and even might have patched up. It was also observed that the sentence awarded to Raghunath and others was only three years rigorous imprisonment. Having regard to all these factors, the sentence awarded to them was reduced to that of already undergone and the fine was enhanced to Rs. 15000/-to be paid by each of them within two months. Simultaneously, it was directed that if the amount of fine was realized, then 50% thereof would be paid to the injured.
To my mind, the reasons for invoking the provisions of Section 360 of the Cr.P.C. would still hold good. However, since these provisions have no applicability to the instant case, petitioners-Raghunath and Ors. deserve to be released on probation in terms of the provisions of Section 4 of the Act for the very same reasons because they have faced the criminal prosecution for the last more than 23-1/2 years by now and no useful purpose would be served by sending them to jail at this stage. Moreover, no material has been pointed out by the learned Counsel for the State that they have ever indulged in any other criminal activity after the incident in question. However, in the given set of circumstances, especially noticing the injuries sustained by the injured persons, I am of the opinion that the compensation awarded to them should be enhanced. For the sake of reference, the injuries suffered by complainant-Pindi Dass and his son-Ramesh Dass are extracted below:
Injuries on the person of complainant-Pindi Dass.
There was reddish coloration wit swelling and deformity of the left wrist joint. X-ray was advised.
Reddish contusion 6 cm x 2 cm in the middle of the left fore-arm. X-ray was advised.
1-1/2 cm x cm skin deep incised wound 5 cm above the right wrist joint.
1-1/2 cm x 1 cm reddish abrasion in the middle of the right leg interiorly.
2-1/2 cm x 1 cm incised wound in the middle of the left leg, bleeding was present. There was deformity of the underline bone. X-ray was advised.
5 cm x 2 cm reddish contusion on the medial side of the left knee joint. X-ray was advised.
Lacerated wound 1-1/2 cm x 1 cm skin deep 12 cm below the left knee joint.
Injuries on the person of injured-Ramesh Dass.
4 cm x cm skin deep lacerated wound on the occipital area of skull. Bleeding was present. X-ray was advised.
There was swelling with red coloration over the left wrist joint. X-ray was advised.
8 cm x 4 cm reddish contusion on the back of the left elbow joint. X-ray was advised.
10 cm x 3 cm reddish contusion in the middle of the outer side of the left arm.
Swelling with reddish contusion in the lower half of right forearm. X-ray was advised.
Diffused swelling over the dorsum of the fingers of the right hand. X-ray was advised.
There was diffused swelling over the right foot and right ankle joint. X-ray was advised.
13 cm x cm reddish abrasion on the skin of left leg.
The parallel contusion on the outer side of the left thigh.
1 cm x cm abrasion on the nasal bone.
It is also in evidence on record that multiple fractures were found on the person of Pindi Dass after x-ray examination. Having regard to the aforesaid, the revision petitions and the appeal are disposed of with the following directions:
the conviction of petitioners-Raghunath and Ors. as recorded by the trial Court and as affirmed by the appellate Court shall remain intact;
that the sentence awarded to petitioners-Raghunath and Ors. by the appellate Court is maintained, but, instead of sending them to jail, they are directed to be released on probation u/s 4 of the Act on their entering into a bond in the sum of Rs. 25,000/-with one surety in the like amount for a period of one year with the following conditions:
(i) they will keep peace and be of good behavior during the aforesaid period of one year, failing which they will be required to appear before the trial Court for undergoing the remaining period of sentence as and when called upon to do so; and
(ii) they shall deposit a sum of Rs. 75,000/-before the trial Court within a period of two months from today.
that in the event of deposit of Rs. 75,000/-,which shall be in addition to the amount of fine as imposed by the Courts below, but shall not include the amount of fine as imposed by this Court vide order dated 8.5.2006, if already paid and out of which some amount was directed to be paid as compensation to Pindi Dass and Ramesh Dass, the same shall be paid in equal shares to the injured persons as compensation by the trial Court after due notice and verification. (It has been noticed by their Lordships in judgment dated 14.2.2008 that Pindi Dass has since died. Therefore, the amount of compensation payable to him shall be disbursed to his legal heir (s) in equal proportion).
that if petitioners-Raghunath and Ors. fail to deposit the amount of Rs. 75000/-within the stipulated period, their revision petition shall be deemed to have been dismissed without any reference to the Court and they will immediately be required to serve their remaining sentence.