Sharad Kumar Sharma, J
1. The present Revision has been preferred by the revisionist assailing the judgment and order dated 15.05.2006 of conviction as passed by the Judicial
Magistrate Almora in Criminal Case No. 56 of 2006, State Vs. Digar Singh, under Sections 324, 326, 504 and 506/2 I.P.C.
2. As a consequence of the order of conviction by the learned Trial Court dated 15.05.2006, the revisionist before this Court aggrieved of the judgment
dated 15.05.2006, rendered by the Trial Court, had preferred a Criminal Appeal No. 9 of 2006, Digar Singh Vs. State of Uttarakhand, whereby, the
learned Sessions Judge rejected the appeal of the appellant and has confirmed the judgment of conviction of the Trial Court dated 15.05.2006.
3. As a result of order of conviction, the revisionist is sentenced for offences under Sections 325 and 504 I.P.C., the revisionist has been directed to
undergo the sentence of one year of rigorous imprisonment along with a fine of Rs.1500/-, for commission of an offence under Section 325 I.P.C. and
he has been directed to undergo one month additional imprisonment in the event of failure to deposit the fine as imposed by the Trial Court. Further,
for the offence committed under Section 504 I.P.C., the revisionist has been sentenced by the Appellate Court with two month additional
imprisonment.
4. Brief facts leading to the filing of the present revision is that an incident is said to have occurred on 5th August, 2002, whereby, the
complainant’s elder brother Bishan Singh had gone to get gunny bags for filling in potatoes, it is alleged in the complaint that then at about 3:30
p.m., present revisionist reached at the spot, in question, and inflicted wounds on the complainant’s elder brother. Immediately on arrival of the
elder brother, Diwan Singh of the victim Bishan Singh, the present revisionist is said to have assaulted him also. On hearing the hue and cry, Bishan
Singh, who was working in the potato go-down came out and saw that the revisionist had all of a sudden started assaulting the elder brother of the
complainant, due to which, he because unconscious and has fallen down on the floor. It is further reported that on account of excessive injuries, which
were suffered in person by the elder brother of the complainant, he was admitted in the hospital and was medically examined. On arrival in the
emergency department on 06.08.2002 at 1:15 a.m., he was medically examined and after the medical examination, a report has been submitted by the
Doctor, who has examined him, wherein, at the same day it is reported that the elder brother of the complainant had suffered the following injuries :-
“(1) On removal of clots, one lacerated wound 1 cm x 3 cm x 0.5 cm. on the scalp 2 inches posterior to left ear with underlying swelling 2 inches x
2 inches.
(2) Abraded contusion size 3 cm x 5 cm, 2.5 cm. posterior to left ear.
(3) lacerated wound 1 cm. x 0.5 cm. on the left side of nose.
(4) Lacerated wound 1 cm .x 05.5 cm. over upper lip just below the nose.
(5) Swelling, tenderness over noise bleeding through both the nostrils after removal of clot.
(6) Loss of 1st, 2nd, 3rd and 4th teeth on upper left side.
(7) Laceration size 2 cm. x 3 cm. on oral side of lower lips on lift side.
(8) Contusion 3 cm. x 8 cm. on the front of neck with underlying swellingâ€
5. After providing the medical treatment to the victim, brother Diwan Singh lodged a report before Pargana Adhikari on 07.08.2002 directed Patwari
Bhaisola to register the case under Sections 324, 326, 504, 506 IPC against the revisionist. The matter was investigated and registered as Case Crime
No. 2 of 2002 and on conclusion of investigation, a chargesheet being chargesheet No. 2 of 2002 dated 08.08.2002 was submitted before the
Magistrate.
6. According to the opinion expressed by the Doctor in his report, who has examined the victim, he has submitted that the injuries as described in 2, 3,
4 and 7, they are simple in nature, caused by the blunt edged object, but as far as injury No. 1, 5 and 8 are concerned, it was opined by the Doctor that
X-ray may be conducted on the injured person, then only any opinion can be given, and it was reported that the injury No. 6 has been inflicted by blunt
object. Invariably, in relation to all the injuries suffered, the opinion as expressed by the Doctor, who has examined the victim, as a matter of fact, it
goes to show that the injuries would be falling to be within the purview of the definition of injuries as defined under Section 320 I.P.C. As the nature of
injuries reported and inflicted, it would be covered by Section 320 I.P.C. which goes to show that the victim has suffered grievous hurt as detailed
under Section 320 of the I.P.C. as contemplated under Section 325 IPC. Section 320 of the IPC is quoted hereunder :-
“320. Grievous hurt.â€"The following kinds of hurt only are designated as “grievousâ€:â€
(First) â€" Emasculation.
(Secondly) â€"Permanent privation of the sight of either eye. (Thirdly) â€" Permanent privation of the hearing of either ear, (Fourthly) â€"Privation of
any member or joint.
(Fifthly) â€" Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) â€" Permanent disfiguration of the head or face. (Seventhly) â€"Fracture or dislocation of a bone or tooth. (Eighthly) â€"Any hurt which
endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.â€
7. The exception which has been carved out in the Code is when injury is caused and falls to be under Section 335 of IPC on account of sudden
provocation and there has to be an element of no intention of causing injury nor has knowledge that it would result into causing a grievous hurt falling
under Section 320 IPC.
8. After concluding the trial and considering the statement recorded of PW1 Diwan Singh, PW2 Uttam Singh and in particular, statement of PW5
Bishan Singh, they have supported the incident of 5th August, 2002, wherein, it was shown that the revisionist has assaulted the elder brother of the
complainant, according to the statement of PW5 Bishan Singh, which is quoted hereunder :-
“…bru s esa eqyfte gkftj vnkyr vius gkFk esa MUMk ysd sj vk;k vkSj dgus yxk fd r sjh ekW pks/k n srk gwWA mlu s dgk fd rwu s esjh dPpk n
sonkj dk isM dkVu s o gRFkk cUnh rksMu s dh fjiksZV D;ksa dhA eS au s eqyfte dks le>krs gqos dgk fd eS aJ .F.M. dk v?;{k gwW] blh ukr s eSus
fjiksZV dh gSA eS a eqyfte dks le>ku s dh uh;r ls lMd fdukj s x;k rks eqyfte u s eq>ij ykBh ls okj dj fn;kA eq>s flj] ukd ij pksV vk;hA esa pkj eq>s flj]
ukd ij pksV vk;hA esa pkj nkar V wV x;sA eS a csgksâ€k gks x;k vkSj tehu ij fxj nkar V wV x;sA x;kA eq>s 2&3 feuV ckn gksâ€k vk;kAâ€
9. This statement stands corroborated with the medical report of the Doctor PW6, which goes to show that injuries were grievous in nature and on
vital part of the body of the victim.
10. Injuries, which has been caused by the revisionist by the weapon, which was used in the incident, i.e. lathi, the assault was made on the head, nose
and behind the ears and, as a consequence of the injuries, four teeth of the victim was broken down would fall to be nature of injury covered under
Section 320 IPC.
11. This statement of PW5, which is quoted hereinabove, shows the infliction of wounds, which would be grievous hurt, in nature, the Doctor who was
included as witness as PW6 Dr. Tarun Kumar Pant before the Court below and he supported the gravity of injuries and medical report Ex.Ka-2 dated
06.08.2002 , which was a medical report submitted by him on 06.08.2002, but , he was not examined before the learned Trial Court, he was not
produced as a witness. However, learned Trial Court, after concluding the trial and recording the statement of the witnesses has come to the
conclusion that the offence under Sections 325 and 504 I.P.C. is made out as against the present revisionist and has sentenced him to undergo
rigorous imprisonment of one year for commission of offence under Section 325 I.P.C. with a penalty of Rs.1500/- and failure to deposit the penalty,
he was further directed to undergo the sentence of one month. Similarly, he was also convicted for the offence under Section 504 I.P.C. to undergo
R.I. for a period of two months.
12. Being aggrieved against the order of conviction dated 15th May, 2006, Criminal Appeal was preferred, being Criminal Appeal
No. 9 of 2006. The Appellate Court, too, while considering and appreciating the evidence as adduced by the prosecution as well as the defence before
the Court below, had concurred with the judgment of the Trial Court and has maintained the sentence as inflicted on the revisionist. Consequently, the
Appeal too was dismissed by the Sessions Judge by the judgment dated 30th November, 2010. As a consequence thereto, the sentence as awarded
against the present revisionist by the judgment 15th May, 2006, was maintained by the Appellate Court in its judgment dated 30.10.2010.
13. Considering the nature of injuries which has been referred above and has been reported by PW6 Dr. Tarun Kumar in his report dated 06.08.2002,
apparently, the said injuries will fall to be within the ambit of definition of grievous injuries as defined under Section 320 of the IPC, which happens to
be the basic element for convicting of the accused under Section 325 I.P.C. because the invocation of Section 325 IPC is only dependent upon the
aspect of the matter that there has to be a voluntary act with the knowledge of the probability to cause grievous hurt, meaning thereby, there has to be
complete correspondence between result, intention and knowledge, the assault has been done, which has resulted into causing of the grievous injuries.
14. Looking to the allegations as levelled in the F.I.R. and considering the evidence of the witnesses adduced by the parties before the Court below,
there cannot be any doubt that there was a voluntary act on the part of the revisionist, which has caused the injuries on the person of the victim. Some
of the injuries as narrated therein, since fall to be within the ambit of definition of injuries as defined under Section 320 I.P.C. which has already been
quoted above, it could be said that the offence under Section 325 IPC is made out tagainst the revisionist. But, looking to the gravemen of the injuries
and the circumstances under which, the incident has chanced on account of personal altercation, the description of the term of the sentence which is
contemplated under Section 325 I.P.C. is absolutely held to be discretion on the Court to impose a sentence, which may extent upto maximum period
of seven years and also a fine, which has been left open absolutely at the discretion of the Courts.
15. Considering the rival contentions and also considering the fact that the assailant as well as the victim, both happens to be close relatives and there
have been some personal score against each other and also that some of the injuries do fall to be within the definition of grievous injuries as provided
under Section 320 I.P.C, but various other existing factors pertaining to the delayed lodging of the F.I.R., non examination of Dr. Tarun Kumar, who
appeared as PW6 and non consideration of his statement, this Court is of the view that the quantum of sentence as imposed on the revisionist for
undergoing the R.I. for one year, deserves to be reduced to according to the opinion of this Court, appropriate sentence would be for a period of six
months. However, the fine as imposed by the learned Trial Court and as affirmed by the Appellate Court, is not being reduced.
16. Learned counsel for the revisionist, though had not pleaded a ground but has argued that since the offence alleged against the revisionist under
Section 325 and 504 I.P.C., being first offence committed by him, he would be entitled for the benefit of Section 4 of the Probation of Offenders Act,
1958. In support of his submission, the learned counsel for the revisionist has placed reliance on the judgment of this Court in Criminal Revision
No.246 of 2014, Devi Sharma and another Vs. State of Uttarakhand, wherein, while considering the impact of the provisions contained under Sections
3, 4, 5 and 6 of the Probation of Offenders Act and also impact of the judgment rendered by the Hon’ble Apex Court in the case of Commandant,
20th Battalion, ITBP Vs. Sanjay Binjola reported in 2001 SCC (Cri.) 897. The reasoning given in the aforesaid judgment, as rendered by the
Coordinate Bench of this Court on 28th October, 2014, had considered the extension of benefit under Section 4 of Probation of Offenders Act. Hence,
also the revisionist would be entitled for the benefit of Section 4 of the Probation of Offenders Act as settled by the aforesaid judgment.
17. The basic implications of the Act of 1958 came for consideration before the Hon’ble Apex Court in the case reported in 2001 SCC (Cri.) 897,
Commandant, 20th Battalion, ITBP Vs. Sanjay Binjola. Para 7 of the said judgment reads as under :-
“7. Probation of Offenders Act has been enacted in view of the increasing emphasis on the reformation and rehabilitation of the offenders as a
useful and self-reliant members of society without subjecting them to deleterious effect of jail life. The Act empowers the Court to release on
probation, in all suitable cases, an offender found guilty of having committed an offence not punishable with death or imprisonment for life or for the
description mentioned in Sections 3 and 4 of the said Act.â€
18. In this judgment, the Hon’ble Apex Court had considered the impact of Section 4 of the Act, which is quoted hereunder :
“4. Power of court to release certain offenders on probation of good conduc.
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 behaviour:
“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 opinion 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.â€
19. Section 4 of the Act would demonstrate that if a person is found guilty of having committed an offence not punishable with death or imprisonment
for life, in that event, considering the nature of the offence and the character of the offender, the Court instead of sentencing him at once to any
punishment may release such person on probation of good conduct, on his entering into a bond, with or without sureties, for a period not exceeding
three years. Before releasing the offender, on probation, the Court must satisfy itself that 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. The Court before passing the order of release on probation may also call report of the Probation Officer. The Court while
releasing on probation may also direct that accused shall remain under the supervision of Probation Officer for a period not less than one year.
20. As per Section 11 of the Act, powers as provided under Sections 3, 4 and 5 of the Act may be exercised by the Appellate or Revisional Court as
well.
21. In the present case, the accused and the victim are relatives. They have some dispute existing amongst themselves, which had existed for quite
some time. Thus it reflects that the assault cannot be said to be voluntary and planned to injure; and since injuries had not been held to be dangerous to
the life of the victim and keeping the intention of Probation of Offenders Act, 1958, the sentence imposed as above, this Court is of the view that while
exercising its power under Section 11 of the Act of 1958, deserves to be reduced.
22. So far as the sentence for commission of offence under Section 504 I.P.C. is concerned, the revisionist has been sentenced to undergo
imprisonment of two months, it is made clear that both the sentences would run concurrently. However, this period of six months as inflicted, to be
undergone by the revisionist, by this Court would obviously, be after the exclusion of the period, during which the revisionist has remained in judicial
confinement.
23. Subject to the above observations, the Criminal Revision is partly succeeds, upto the extent the judgment dated 15th May, 2006, would stand
modified. The revisionist is directed to surrender before the Magistrate concerned to undergo the remaining sentence as directed above for the
maximum period of six months excluding the period the revisionist has already remained in jail.
24. Let the copy of this judgment be forwarded to the Magistrate concerned for information and compliance.
