AKHTAR & ANOTHER Vs. STATE OF HARYANA

JUDGEMENT

(1.) On 8.9.2005, police received an information on admission of injured Hukam Singh at CHC, Ferozepur Jhirka. The Police Officer reached the place and after obtaining the opinion of the doctor, recorded the statement of injured person. Hukam Singh alleged that about 11/2-2 years ago, he had purchased land measuring three acres from Kamruddin son of Rahim Khan, over which he has constructed a house near their fields. Akhtar having a string in his hand and Jamshed @ Khunta having a lathi came there. Kamruddin had stopped the complainant from cultivating the field for many days, but he did not desist and stating so, he said that he be taught a lesson. Jamshed caught hold of complainant's hands and Akhtar put a string on his body and tied him and confined in a Chaubara of their house. Akhtar inflicted lathi blow on the left pindli. Jamshed sat on him and Akhtar inflicted another lathi blow beneath the knee of his right foot. The complainant started crying when his uncle reached from his field hearing the noise and rescued him. Assailants left the place while taking an amount of Rs. 500/- and one wrist watch mark HMT Kohinoor. The complainant was untied and taken to CHC, Ferozepur Jhirka. FIR under Sections 323, 342, 506 and 34 IPC was accordingly registered. During investigation, offence under Section 379 IPC was added. The accused were arrested and tried. All the accused have been found guilty and sentenced to suffer RI for two years under Section 379 IPC and one year under Sections 342 and 323 respectively. The petitioners filed an appeal against this order, but the Appellate Court upheld the order passed by the trial Court.

(2.) The petitioners have now filed this revision petition. Counsel for the petitioners has not pressed this revision on merits, but pleads for leniency. Counsel contends that one of the accused, who was convicted in this case, was extended the benefit of probation considering his age to be 85 years, whereas the trial Court did not extend the same concession to the present two petitioners without much justification.

(3.) I have perused the impugned order passed by the Judicial Magistrate. He though has considered the prayer of the petitioners for release on probation, but was of the opinion that this is not a fit case for release on probation of other convicts, except one who was 85 years old. The Appellate Court did not consider this aspect at all and has simply maintained the sentenced as imposed while : upholding the findings returned by the trial Court. In my view, the provisions of Sections 360 and 361 Cr.P.C. would mandate a Court to consider release of a person on probation and where the prayer is declined without recording much reasons, same would be violative of the provisions of Sections 360 and 361 Cr.P.C. In this regard, the counsel for the petitioners has placed before me Chandreshwar Sharma Versus State of Bihar, 2000 2 JT 36, where similar view is expressed. Here also, the appellant before the Hon'ble Supreme Court was convicted for offences under Sections 379 and 411 IPC and was sentenced to one year RI. The Appellate Court had affirmed the conviction but none of the forums had considered the question of applicability of Section 360 of the Code. The Hon'ble Supreme Court has held that while refusing to grant the benefit of Section 360, the Court has to record specific reasons in the judgment. Neither the trial Court nor the Appellate Court have recorded any reason for which the Courts did not consider it fit to release the petitioners on probation, they being first offenders. The provisions of Section 360 Cr.P.C. are as under:-