Punjab-Haryana High Court
Pawan Kumar And Another vs State Of Haryana on 18 December, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-310-SB-2003 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-310-SB-2003 (O&M)
Date of Decision: December 18, 2013
Pawan Kumar and another
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Arvind Singh, Advocate, and
Mr. Parveen Sharma, Advocate,
for the appellants.
Mr. Nitin Kaushal, AAG, Haryana,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Challenge in this appeal is to the judgment of conviction dated 27.1.2003 and the order of sentence dated 29.1.2003, passed by the learned Additional Sessions Judge, Sonepat, whereby the appellants were held guilty for commission of the offences punishable under Sections 323 and 324 read with Section 34, IPC, and ordered to undergo the following sentences:
Under Section Sentence (RI) Fine In Default (RI) 323 read with 34, IPC 6 months `1,000/- 1 month 324 read with 34, IPC 2 years `5,000/- 6 months Both the substantive sentences were ordered to run Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 2 concurrently.
2. At the very outset learned counsel for the appellants submits that he does not want to challenge the judgment of conviction of the appellants for the offences punishable under Sections 323 and 324 read with Section 34, IPC. He, however, contends that the occurrence had taken place in the year 2000;
the injured had deliberately trespassed into the fields belonging to the appellants and was removing the fodder; the appellants had concededly caused simple injuries and most of them were on non-vital parts of the person of the injured; the appellants are not previous convicts; and that during course of trial and appeal, both the appellants remained on bail and the said concession was not misused by them, therefore, they are entitled to the benefit of probation as enshrined in Section 360, Cr.P.C.
3. Learned counsel for the State vehemently opposed the prayer of the learned counsel for the appellants to release them on probation. However, he concedes that the appellants are neither previous convicts nor involved in any other case. He has placed on record the affidavits of the Superintendent, District Jail, Sonepat, showing the period of incarceration suffered by the appellants which are taken on record.
4. I have heard learned counsel for the parties and with their able assistance gone through the material available on Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 3 record.
5. Though learned counsel for the appellants has proposed not to argue the case on merits so far as the conviction of the appellants is concerned, yet, to satisfy the conscience of this Court, the whole matter has been re-scanned.
6. The brief facts of the case are that the prosecutrix (name concealed) had gone to the fields of the appellants on 5.6.2000, at 9:00 a.m. for collecting fodder from the crop standing there. The appellants armed with sticks, emerged there and started beating the prosecutrix. Smt. Shakuntla (PW4) and Smt. Suraj Kaur (not examined), who were also collecting fodder from the nearby fields, arrived at the spot and rescued the prosecutrix from the clutches of the appellants. The prosecutrix was carried to Community Health Centre, Kharkhoda, District Sonepat, where she was medico-legally examined by Dr. D.K. Bhardwaj (PW3). He found several simple injuries on her person. ASI Anil Kumar (PW5) went to Community Health Centre, Kharkhoda, after receipt of information from Dr. Bhardwaj (PW3). After obtaining the fitness certificate from the doctor, he (ASI) recorded the statement (Ex.PA) of the prosecutrix (PW1). The said statement was sent to the Police Station, Kharkhoda, on the basis of which, formal FIR (Ex. PA/2) for the offences punishable under Sections 323 and 324 read with Section 34, IPC, was Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 4 registered. On 19.6.2000, after about 4 days of registration of the case, the prosecutrix suffered a supplementary statement alleging that due to the multiple injuries she had forgotten to narrate the true facts to the police. In fact, the appellants had embraced her and made her to fall on the ground. Appellant No. 2, Parminder, untied the string of her salwar and placed himself on her person. She started crying and after hearing the same, her aunts arrived at the spot. On seeing them, the appellants started beating the prosecutrix. On the basis of the said supplementary statement, the offence punishable under Section 376 read with Section 511, IPC, was added. The appellants were arrested and after completion of the investigation, the charge- sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate.
7. Since the offence punishable under Section 376 read with Section 511, IPC, was exclusively triable by the Court of Session, therefore, the case was committed to the said Court. Finding a prima facie case for the offences punishable under Sections 323, 324 and Section 341 all read with Section 34, and Section 376 read with Section 511, IPC, the appellants were charge-sheeted, to which they pleaded not guilty and claimed trial.
8. In order to substantiate its allegations, the prosecution Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 5 examined the following witnesses:
PW1 Prosecutrix: She reiterated her two statements suffered before the police.
PW2 Krishan: He is the husband of the prosecutrix and deposed regarding the facts which were narrated to him by his wife (PW1) PW3 Dr. D.K. Bhardwaj: He had medico legally examined the prosecutrix and deposed regarding the injuries detected on the person of the prosecutrix. PW4 Shakuntla: She was an eye-witness to the occurrence. She did depose that the appellants caused injuries to the prosecutrix and on her intervention, the appellants fled away from the spot. She failed to support the prosecution version with regard to the allegation of outraging the modesty of the prosecution, therefore, at the request of the learned Public Prosecutor, Shakuntla was declared hostile, but nothing material could be brought on record to support the allegation that the appellants had attempted to commit rape with the prosecutrix. PW5 ASI Anil Kumar: He investigated the matter and deposed in detail regarding the investigation conducted by him.
Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 6
9. After completion of the prosecution evidence the appellants were examined in terms of Section 313, Cr.P.C. In response to the last question, appellant No. 1, Pawan Kumar, stated as under:-
"... Devi was collecting fodder from their fields and when they stopped her she started abusing. She gave spade blow on the person of his mother. Thereafter he gave a slap blow to her. The case has been registered on the basis of party faction in the village and they had not committed any crime."
Similar was the stand of appellant No. 2, Parminder. No evidence in defence was led.
10. After hearing learned counsel for the parties, the learned Trial Court acquitted the accused for the offences punishable under Section 376 read with Section 511, IPC, but held them guilty for the offences punishable under Sections 323 and 324 read with Section 34, IPC, and sentenced them as has been discussed in the initial part of the judgment.
11. After going through the material available on record and the depositions of the prosecutrix as well as other witnesses, this Court is of the considered opinion that the learned Trial Court had rightly held the accused-appellants guilty for the offences punishable under Sections 323 and 324 read with Section 34, IPC, and, as such, learned counsel for the appellants has correctly Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 7 proposed not to challenge the conviction of the appellants. However, there appears to be merit in the submission of the learned counsel for the appellants when he prayed for their release on probation in view of the submissions recorded in the foregoing paras of the present judgment.
12. Concededly, the occurrence had taken place in the year 2000 and the appellants remained on bail during trial and even during course of pendency of the present appeal, but they did not misuse the said concession. The appellants are neither required nor involved in any other case. They are the first offenders. The prosecutrix had herself gone to the fields of the appellants and without any permission or authority started removing the fodder from their fields. As per the version of the appellants, the prosecutrix did not desist in spite of their asking to go from the fields rather the stand of the appellants was that the prosecutrix, who was armed with a sickle, attempted to cause injury to their mother and only then they intervened and caused injuries to her (prosecutrix).
13. A perusal of the medical record reveals that all the injuries were simple in nature. Only one injury was found to have been caused with a sharp weapon and that too was simple in nature. Moreover, all the injuries were on the non-vital parts of the body of the prosecutrix. Though the prosecutrix during the Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 8 course of the investigation and the trial attempted to exaggerate the offence by alleging that the appellants attempted to commit rape on her, but the said allegations were found to be baseless.
14. Keeping in view the totality of the facts and circumstances of the case, the execution of the remaining substantive sentences of the appellants is kept in abeyance and they are ordered to be released on probation for a period of two years from the date they furnish the bonds in the sum of `75,000/- each with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Sonepat. During the probation period, the appellants shall maintain peace and be of good behaviour. In case any of the appellants violates the terms and conditions of the bonds to be furnished by them, in that eventuality the violator would be called upon by the Court of competent jurisdiction to serve out the remaining part of his substantive sentence. Each of the appellant is further directed to pay `75,000/- (`75,000/- x 2 = `1,50,000/-) as compensation to the prosecutrix (PW1) in terms of Section 357, Cr.P.C. The amount of compensation as ordered by this Court, shall be deposited by the appellants within two months of passing of this judgment or at the time of furnishing of the bonds, as stipulated above, whichever is earlier. On realization of the amount of compensation, learned Chief Judicial Magistrate, Sonepat, shall Kapoor Prashant 2014.01.06 13:08 I attest to the accuracy of this order CRA-S-310-SB-2003 (O&M) 9 issue a notice to the prosecutrix (PW1) for collecting the same in accordance with the norms on the subject. In case either of the appellants fails to deposit the amount of compensation awarded by this Court, in that eventuality the sentence awarded by the learned Trial Court shall enure.
15. The amount of fine, already deposited by the appellants in terms of the order passed by the learned Trial Court, shall be treated as costs of proceedings.
16. With the above modifications, in the order of sentence, the present appeal is partly allowed.
(NARESH KUMAR SANGHI)
December 18, 2013 JUDGE
Pkapoor
Kapoor Prashant
2014.01.06 13:08
I attest to the accuracy
of this order