Madhya Pradesh High Court
Mangal Singh vs The State Of Madhya Pradesh Thr on 24 October, 2016
1 Cri.Rev.No.633/15
Mangal Singh & others Vs. State of M.P.
24/10/16
Shri Yash Sharma, Advocate for the petitioners.
Shri Prakhar Dhengula, Panel Lawyer for the respondent/State.
1. The revisional powers of this court under Section 397/401 of Cr.P.C., are invoked where challenge is made against the order dated 15/7/2015, passed by the Second Additional Sessions Judge, Jora, District Morena, deciding two appeals, one filed by Hukum Singh bearing No.171/13 whereas other bearing No. 172/13 filed inter alia by the petitioners, were dismissed thereby affirming the judgment of conviction passed by the trial court on 3/10/2013 in Criminal Case No 239/09 sentencing the petitioners to 6 months' R.I., alongwith fine of Rs. 2,000/- for committing offence punishable under Section 327 of I.P.C.
2. The prosecution story, in short, is that on 11/3/2009 when the injured/victim Vishnu was going on his motorcycle with his mother from Bilgaaon Nivari Road to Bilwa at 5-45 p.m., on reaching Malkhanpura, they were stopped by four unidentified persons and the said four persons demanded money for consuming alcohol. On refusal by the victim, petitioner No.1 Mangal Singh inflicted tooth bite injury on the shoulder of Vishnu and petitioner No.3-petitioner Pehalwan slapped him above right cheek. The father and brother of the victim were in toe on their motorcycle and on their arrival at the scene of crime, petitioners are alleged to have fled. During the course of the incident, it is stated that gold chain of the mother of the victim, who was accompanying him, fell down. FIR was lodged by the victim and mother which was followed by investigation and filing of charge-sheet. The prosecution produced witnesses especially PW-1 i.e., Vishnu who testified that the tooth bite injury was inflicted on his right shoulder, which was contradictory to the prosecution story that teeth bite injury was sustained on left shoulder. However, PW-4 Smt. Geeta Devi, mother of the victim Vishnu, who was an eye-witness stated that the injury was sustained by the victim Vishnu on the left shoulder. The MLC which was proved by PW-3 Dr. Ravi 2 Cri.Rev.No.633/15 Mangal Singh & others Vs. State of M.P. Maheshwari found the injury to be sustained on the left shoulder. The said injury was also categorized as minor in nature.
3. The contradiction in regard to injury on right or the left shoulder is the principal ground raised by the learned counsel for the petitioners for assailing the impugned conviction.
4. True it is that the prosecution case was that the injury of teeth bite was sustained by the victim on the left shoulder while the testimony of PW-1 Vishnu, the victim discloses that the injury was on the right shoulder but this court cannot loose sight of the fact that the time gap between the date of incident i.e. 11/3/2009 and recording of the testimony of PW-1 on 15/5/2012 was more than 3 years because of which memory is liable to be fade and thus minor contradictions are quite natural. The fact remains that the injury was sustained by the victim on left shoulder which has duly been corroborated by PW-3 Dr. Ravi Maheshwari and therefore the above said minor contradiction in regard to the injury sustained on the left or right shoulder can very well be ignored.
5. There is no other ground raised by the petitioners for assailing the impugned conviction and sentence.
6. In view of above, this court is of the considered view that there is no illegality or perversity in the finding of guilt against the petitioners as the allegations of section 327 of I.P.C. appear to be have been proved beyond all reasonable doubt. The conviction under Section 327 of I.P.C. is therefore well merited and calls for no interference by this court and is upheld.
7. Now, coming to the point of sentence, the argument of the learned counsel for the petitioners is that the petitioners were not convicted earlier and have no criminal history. They are rustic villagers and therefore by keeping them in jail for short term of six month, no useful purpose will be served and by sending them to jail, there is possibility that they will come in contact with the hardened criminals and 3 Cri.Rev.No.633/15 Mangal Singh & others Vs. State of M.P. as such the petitioners ought to have been dealt with under the provisions of Probation of Offenders Act.
8. Perusal of the record of the case reveals that the petitioners have no previous criminal history. The maximum sentence which was awarded to them is of 6 months rigorous imprisonment. The incident has occurred on 11/3/2009, i.e., about 7 years back. The petitioners had been under continuous shadow of prosecution, since long. There is every possibility that if they are sent to jail for the offence which was committed by him 7 years ago, they will come in contact of hardened criminals in jail.
9. The Apex court in one of its recent decisions in the case of State through Central Bureau of Investigation, Anti Corruption Branch, Chandigarh Vs. Sanjiv Bhalla & another reported in (2015) 13 SCC 444 after considering its earlier views on the application of Probation of Offenders Act and Section 360 of Cr.P.C. has held as under:-
"24. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift- from punishment being a humanising mission to punishment being deterrent and retributive. This shift may be necessary in today's social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Criminal Procedure Code and the Probation of Offenders Act, what is imperative for the Judge is to strike a fine balance between releasing a convict after admonition or on probation or putting such a convict in jail. This can be decided only on a case by case basis but the principle of rehabilitation and the humanising mission must not be forgotten.
25. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Criminal Procedure Code). Yet, additional changes were brought about in the Criminal Procedure Code in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, 4 Cri.Rev.No.633/15 Mangal Singh & others Vs. State of M.P. including the right to file an appeal against the grant of inadequate compensation. How often have the courts used these provisions ?.
27. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the Criminal Procedure Code in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a trial Judge to utilise all these tools given by Parliament for ensuring a fair and just termination of a criminal case."
10. In view of the above having regard to the facts and circumstances of the case, absence of antecedents of the petitioners and the provisions of Criminal Procedure and Probation of Offender Act, 1958, it appears expedient that benefit of Section 4 of the Probation of Offender Act be extended to the petitioners herein and as such the judgment and order of the Trial Court is liable to be modified to that extent.
11. (a) The revision is, therefore, allowed in part. So far as offence under section 327 of I.P.C. is concerned, the finding of guilt recorded by the Trial Court is maintained but the sentence awarded to the petitioners is suspended and it is directed that the petitioners shall be released under the provisions of Section 4 of the Probation of Offender Act on probation of good conduct for a period of two years from today on their furnishing a personal bond in the amount of Rs 50,000/- (Rs. Fifty Thousand Only) in case of each of the petitioner with two sureties of like amount to the satisfaction of the Trial Court to the effect that they shall keep peace and be of good behaviour during the said period of two years and shall appear to receive sentence when called upon by the trial court. The bond shall be furnished by the petitioner before the 5 Cri.Rev.No.633/15 Mangal Singh & others Vs. State of M.P. trial court within a period of one month from today. In case the petitioners fail to comply with the above direction, the revision shall stand dismissed and sentence awarded to them shall be restored.
(b) However, the fine amount imposed by court below qua Section 327 shall be paid to the victim as compensation as per Section 5 of the Probation of Offenders Act, 1958.
(c) During the period of probation, the petitioners shall render their services as volunteers with the District Red Cross Society, District Morena and shall be available to work as volunteers under any of the scheme floated by the said organization. For this purpose, the petitioners shall communicate copy of this order to the Chairman of the District Red Cross Society, District Morena and shall furnish their current addresses, telephone numbers and other details to him, so that they can be requisitioned for working as volunteers. In turn, the Chairman of the District Red Cross Society, Morena, shall file compliance report to this Registry by every month.
12. A copy of this order be sent to the trial court concerned for necessary compliance.
13. A copy of this order be also sent to the Chairman of the District Red Cross Society, Morena for doing the needful.
(Sheel Nagu) Judge 24/10/16 (Bu)