Punjab-Haryana High Court
Bhanwar Lal And Another vs State Of Haryana on 25 April, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRR No.1840 of 2005(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRR No.1840 of 2005(O&M)
Date of Decision:25.04.2013
Bhanwar Lal and another .....Petitioners
Versus
State of Haryana .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.Darshan Singh Bishnoi, Advocate,
for the petitioners.
Mr.Manish Deswal, Deputy Advocate General, Haryana,
for the respondent-State.
Mr.Anand Kumar Bishnoi, Advocate,
for the complainant.
****
MEHINDER SINGH SULLAR , J.(oral) The matrix of the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the instant criminal revision petition and emanating from the record as claimed by the prosecution is that, on 24.03.1996, the petitioners- convicts-Bhanwar Lal son of Deva Ram armed with 'Kassi' and Bishnu son of Maman Ram armed with 'Sabal' came to the spot and threatened the injured-Rai Sahab that they would teach him a lesson for digging foundation in their land. Thereafter, Bishnu gave two 'Sabal' blows from its reverse side, which landed on the chest of injured-Rai Sahab(since deceased). The occurrence was witnessed by Saraswati wife of Nand Ram, complainant(for brevity "the complainant"), who raised the noise CRR No.1840 of 2005(O&M) 2 and thereafter, both the petitioners-convicts decamped from the place of occurrence with their respective weapons. In the background of these allegations and in the wake of complaint of the complainant, the present criminal case was registered against the petitioners-convicts, vide FIR No.77 dated 24.03.1996, on accusation of having committed the offences punishable under Sections 323, 325 and 34 IPC, by the police of Police Station Sadar Sirsa.
2. Having completed all the codal formalities and taking into consideration the oral as well as the documentary evidence brought on record by the prosecution, the petitioners-convicts were convicted and sentenced to undergo rigorous imprisonment for a period of one year, to pay a fine of Rs.500/- each for the commission of offences punishable under Sections 323 and 325 read with Section 34 IPC and in default of payment of fine to further undergo imprisonment for a period of one month each, by the trial Court, by means of impugned judgment of conviction and order of sentence dated 18.10.2001.
3. Aggrieved thereby, the appeal filed by them was dismissed as well by the Appellate Court, by virtue of impugned judgment dated 12.09.2005.
4. The petitioners-convicts still did not feel satisfied and preferred the present criminal revision petition, to challenge the impugned judgments of conviction and order of sentence of the Courts below, invoking the provisions of Section 401 Cr.P.C. That is how, I am seized of the matter.
5. At the very outset, learned counsel for the petitioners has CRR No.1840 of 2005(O&M) 3 fairly acknowledged that in view of the cogent oral, medical and documentary evidence brought on record by the prosecution, he will not be in a position to contest the conviction of the petitioners-convicts any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version. As no other legal infirmity in the evidence on record has been pointed out by him, therefore, the impugned judgments of conviction and orders of sentence of fine are hereby maintained as such.
6. However, learned counsel for the petitioners-convicts has contended with some amount of vehemence that during the pendency of the revision petition, injured Rai Sahab had expired and his mother Saraswati(complainant) has amicably settled the disputes with the petitioners-convicts through the medium of her affidavit(Annexure "PX") and compromise-deed dated 16.05.2012(Annexure "PY"), which in substance is as under:-
"Today at Harijan Chaupal of village Burj Bhangu, respectables of the village assembled to sort out the dispute between the two parties who were also present. As per this compromise, the mother Smt.Sarswati of the Rai Sahab injured, since deceased, stated that she is making a compromise with Bharma son of Moman Ram as per the wishes of the her son. Now there is no dispute or enmity between the both parties. As per this compromise both the parties agreed to withdraw the pending cases and get them dismissed so that in future they may live without fear and enmity happily. Compromise be utilized in the need of time."
7. In this manner, he has prayed that the matter has been compromised between the parties, the petitioners-convicts are the first offenders and since, the Courts below did not record any cogent reasons to negate their plea to release them on probation, so, the petitioners- convicts are entitled to the benefit of probation. Learned State Counsel CRR No.1840 of 2005(O&M) 4 has acknowledged the factual matrix of the case.
8. Such, thus, being the position on record, now the short & significant question, though important, that arises for determination in this petition is, as to whether the petitioners-convicts are entitled to the benefit of probation or not?
9. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the affirmative.
10. What cannot possibly be disputed here is that the object underlying the provisions of sections 4 and 6 of the Probation of Offenders Act, 1958 (for brevity "the Probation Act") and sections 360 & 361 Cr.PC, broadly speaking, is that first offenders be not sent to jail for the commission of less serious offences, on account of grave risk to their attitude to life to which they are likely to be exposed as a result of their association with the hardened and habitual criminal inmates of the jail. Their stay in jail in such circumstances might well attract them towards a life of crime instead of reforming them. Therefore, these beneficial provisions have to be liberally construed.
11. As is amply clear that Section 360 Cr.P.C. deals with order to release the accused on probation of good conduct or after admonition, whereas Section 361 Cr.P.C. posits that "where in any case the Court could have dealt with an accused person under Section 360 or under the provisions of the Probation Act, but has not done so, it shall record in its judgment the special reasons for not having done so."
12. Sequelly, Section 4 of the Probation Act postulates that when any person is found guilty of having committed an offence not CRR No.1840 of 2005(O&M) 5 punishable with death or imprisonment for life and the Court by which the person is found guilty is of the 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 behaviour.
13. Hence, the combined and meaningful reading of these provisions would reveal that non obstante clause contained in Section 4 points to the conclusions that the provisions of this Section would have overriding effect, shall prevail if the conditions depicted therein are fulfilled and the benefit of probation should be granted to the petitioners- convicts under such circumstances. Meaning thereby, the petitioners- convicts are entitled to the concession of probation.
14. Having regard to the antecedents and other following relatable factors, to me, it would be expedient in the interest and justice would be sub-served, if the benefit of probation is granted to the petitioners-convicts, inter alia on the following grounds:-
i) What cannot possibly be disputed here is that the occurrence in this case is stated to be of 24.03.1996. Since then, the petitioners-
convicts have already faced the pangs and suffered the agony of protracted trial, appeal & revision for the last more than 17 years.
ii) They have already amicably settled the disputes with the CRR No.1840 of 2005(O&M) 6 complainant, as per affidavits(Annexure "PX") and compromise- deed(Annexure "PY").
iii) As per custody certificate, they have already undergone the period of their substantive sentence of imprisonment of more than two months out of maximum period of sentence of imprisonment of one year awarded by the trial Court.
iv) They are on bail, in compliance with the order of this Court.
v) They are the first offenders and there is no history of their previous involvement in any other criminal case.
vi) Even the trial Court has noticed that they are poor persons and having small children to look after.
vii) There is no other member to maintain and look after their families.
viii) There is no legal impediment to release them on probation.
ix) Even the modern trend of penology also leans towards the reformation of the offenders, so as to make them a useful citizen of the society. No useful purpose was going to be achieved by again sending the petitioners-convicts to jail.
15. Therefore, taking into consideration the period of agony of protracted trial, appeal, revision, antecedents of petitioners-convicts, nature of offences, totality of other facts & circumstances emanating from the record, as discussed here-in-above, to my mind, no useful purpose would be served in again sending them to jail to serve out the remaining period of sentence and instead of sending them to prison, they be released on probation under the present set of circumstances. Consequently, it is directed that petitioners-convicts be released on probation on their furnishing personal bonds (within two months) in the sum of Rs.25,000/- each with one surety of the like amount to the satisfaction of the trial Court, subject to the conditions that they would keep the peace and be of good behaviour, for a period of one year from the date of passing of this order. Needless to mention that in case, they are found to be indulged in CRR No.1840 of 2005(O&M) 7 any illegal activities during the relevant period, the sentence awarded to them by the Courts shall stand revived. The remaining sentence of fine imposed on the petitioners-convicts by the Courts below is hereby maintained.
16. In the light of aforesaid reasons, the instant revision petition is hereby dismissed on merits and the impugned judgments of conviction & order of sentence of fine are maintained. However, the order of sentence is accordingly modified to the extent and in the manner depicted herein above and natural consequences & compliance will follow accordingly.
April 25, 2013 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No
CRR No.1840 of 2005(O&M) 8
CRM No.3121 of 2013 in
CRR No.1840 of 2005
Bhanwar Lal and another Vs. State of Haryana
Present: Mr.Darshan Singh Bishnoi, Advocate,
for the petitioners.
****
Heard.
For the reasons mentioned therein, the application is allowed. The affidavits of the parties(Annexure "PX") and compromise- deed(Annexure "PY") are taken on record, subject to all just exceptions.
April 25, 2013 (MEHINDER SINGH SULLAR) seema JUDGE