Simitra Devi vs Girdhari Lal

Ujagar Singh, J.

It is unfortunate that the trial Court's record of this case was found to have been burnt along with the other records in the record office and the first appellate Court had to decide the case without the original record. The appellate Court's file contains the grounds of appeal wherein the counsel for the present respondent challenged the order of conviction and sentence on the following grounds :

(a) Baghicha Singh P.W. is a chance witness and he had admitted that he used to bring milk to Malaut Mandi for sale and on the alleged day of occurrence he paid Octroi duty as 25 paise at Burj Sidhwan Octroi Post. Shri Khushwant Rai, Octroi Superintendent, Municipal Committee, Malaut, has been produced as D.W. 1 who has stated that on 19.9.1982 Baghicha Singh s/o Mukhtiar Singh s/o Hazara Singh of village Sham Khera (P.W.2) had not paid any octroi for milk at Burj Sidhwan Octroi Post;

(b) In the F.I.R. said to have been lodged by Baghicha Singh, Lakhbir Singh, Kishan Chand, now deceased, were said to have been taken to the civil hospital by some unknown persons from the place of occurrence;

(c) Baghicha Singh had stated that he came to know about the name of Kishan Chand Patwari in the hospital when he went there after lodging the report and in such a situation the name is lodged by him. This shows that the F.I.R. was recorded after his visit to the hospital;

(d) Baghicha Singh had stated that at about 7.15 p.m. the A.S.I. had noted down the injuries of both the deceased at the spot and he signed those papers. This shows that both the injured, now deceased, were on the spot when the police reached there. He further stated that his statement was recorded on 5 or 6 blank papers and all the papers were signed by him. There are shops on both sides of the road and Rehriwalas park their Rehris there and it is the busiest road and no independent person was taken into confidence though admittedly the tractor hit one Rehri and the Rehriwala too was not examined;

(e) Om Parkash Patwari, the other eyewitness was examined by the police. Posting of this witness was at village Kakhanwali which is 27 km. away from Malaut and according to the Government instructions he is to remain present at his headquarter. Om Parkash also stated that Lakhbir Singh had died at the spot but according to the prosecution version he had died in the hospital at Malaut. Baghicha Singh and Om Parkash P.Ws. admitted that they did not know any of the relations of the accused and, therefore, could not know the accused also. Moreover the accused was arrested next day and not at the spot. No identification parade was held;

(f) The tractor in question belonged to one Ram Narain and the police did not care to examine Ram Narain in this respect nor the prosecution had tried to prove that the accused had any link with this tractor or its owner.

Apart from the above grounds, other grounds mentioned in the grounds of appeal are not relevant for the purpose.

I have looked into the copies of the statements of P.W.2 Baghicha Singh and Om Parkash P.W.3 who are alleged to be eyewitnesses and also copy of the statement of A.S.I. Sarwan Singh who recorded the statement of Baghicha Singh and investigated the case. The grounds are supported by the statements of these witnesses. In the F.I.R. Baghicha Singh had stated that he left the place after some persons had carried the injured, that is, Lakhbir Singh and Kishan Chand to the Hospital and according to the statement of Om Parkash P.W.3 he came to know the name of the person on Cycle as Lakhbir Singh who had died on the spot. In view of all these factors the learned Counsel for the respondent in the first appellate Court, being conscious of the defects in the prosecution would have argued for acquittal of the respondent but it looks that due to the absence of the original record, he felt inclined to pray for his release on probation. Counsel for the State also must have felt some difficulty and did not object to it. Ultimately the first appellate Court considered the age of the respondent to be under 21 years and felt the necessity of attracting the provisions of Section 360, Criminal Procedure Code or under the Probation of Offenders Act. This prayer was not opposed and the respondent was released on probation for a period of two years under Section 4(1) of the Probation of Offenders Act on furnishing bond in the amount of Rs. 2,000/ with one surety in the like amount and period, undertaking to appear in the Court and receive sentence as and when called upon to do so and in the meantime to keep peace and be of good behaviour. The order was pronounced on 24th September, 1984 and this bond was given on that day itself. Two years have expired on 24th September, 1986.

Although the revision petition is not competent by a private party, specially when the State has not moved against the order, yet, I thought it fit in the circumstances to hear the counsel for the petitioner. The learned Counsel for the petitioner urged that there is no evidence on the file to show that the respondent was below 21 years of age and that his age at the time of finding him guilty has to be seen and not the age at the time of committing the offence. He has cited Ramji Missar and another v. State of Bihar, AIR 1963 SC 1088 wherein it was laid down as under :

".....Where, therefore, the court find that the offender is not a person under the age of 21 on the date when the court found him guilty, Section 6(1) has no application to him."

As against this in Dhashan Kumar v. Secretary Municipal Corporation, Jabalpur and another, AIR 1973 SC 906, their Lordships ruled that when an accused is found to be below 21 years of age at the time of the commission of the offence, the High Court ought to make an order under Section 6 of the Probation of Offenders Act, 1958 or remand the case for doing so.

So far as the question of age is concerned, the same having been given in the statement of the accused under Section 313, Criminal Procedure Code, 1973 (No. 2 of 1974) is sufficient for purposes of considering whether the offender is under the age of 21 years or not. At the time of granting probation, the age given in the said statement by the respondent was not challenged from the order side and in view of the D.B. judgment of this Court in Mai Ditta Singh v. The State of Punjab, 1981 Chandigarh Law Reporter 147 and Delhi High Court judgment in Municipal Corporation of Delhi v. Raj Kumar, 1980(1) F.A.C. 353, the age given in such statement is to be accepted while considering the applicability of the Probation of Offenders Act in case of his conviction.

From the foregoing discussion, I do not find any ground to interfere in the discretion exercised by the appellate Court and that too in revision by a private person. This criminal revision is, therefore, dismissed.

Revision dismissed.