- (1.) Petitioner, the complainant in FIR No. 56 dated 11.07.2001 recorded at Police Station City Fazilka, under Sections 451, 452, 440, 427, 325 and 323 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') is aggrieved by the order dated 19.09.2013 whereby learned Additional Sessions Judge, Fazilka (for short 'appellate court') while maintaining conviction of the private respondents under Sections 148, 451 452, 427, 325, 323, 440 read with Section 149, IPC, as awarded by the learned Sub Divisional Judicial Magistrate, Fazilka (for short 'trial court') vide order dated 06.02.2012, has extended to them benefit of probation under Section 4 (1) of the Probation of Offenders Act, 1958. I have heard learned counsel for the petitioner. Case of the prosecution as noticed by learned trial court is as under:- "Brief facts of the case of the prosecution, as disclosed in the police challan are that on 11.07.2001, one MLR bearing No: 59/YP/2001 pertaining to complainant Joga Singh, son of Tara Singh, resident of Nai Abadi, Fazilka was received in the Police Station City Fazilka through Ward Servant Civil Hospital, Fazilka, whereupon, HC Jugraj Singh accompanied by C. Balbir Singh reached Civil Hospital, Fazilka and sought written opinion of the concerned Doctor regarding fitness of injured (Joga Singh) to make statement who declared him unfit to make statement. That further investigation was handed over to ASI Darshan Singh who accompanied with HC Jugraj Singh along with some other police officials reached Civil Hospital Fazilka and the concerned Doctor declared the injured fit to make statement. Then, ASI Darshan Singh recorded the statement of Joga Singh, who stated that he is resident of Nai Abadi Sultanpura, Street No. 5, Fazilka and is mason by profession. He (i.e. Joga Singh) further stated that there is a dispute pertaining to his house with his neighbour Mangal Singh which he had purchased from the uncle of Mangal Singh in the year 1995 and since then he is residing therein. He further stated that on 10.07.2001 at about 9.30/10.00 p.m. the room light was on and he was talking to his nephew (sister's son) namely Baljit Singh and in the meantime Mangal Singh armed with iron rod accompanied with his neighbour Sajjan singh and brother-in-law of Sajjan Singh namely Pala Singh armed with spade, Wazir Singh alias Jiri armed with ganeky/ganty (sought of sikkle shapped instrument), Kashmir Singh son of unknown armed with iron rod, Veero Bai wife of Mangal Singh and Bharawan Bai mother of Mangal Singh empty handed entered his house after breaking down the door of his house and Mangal Singh and Kashmir Singh started giving him rod blows. He further stated that Mangal Singh gave him a rod blow on the left side of his head and on the upper side of his left eye. He (i.e. Joga Singh) further stated that Kashmir Singh gave him rod blow on his right cheek and right knee. All these persons dragged him outside the house and kept on giving internal injuries whereupon he fell down on the earth and before his eyes these persons dismantled "katcha" room. He further stated that Mangal Singh dismantled the common wall of his house and merged the area of his (i.e. complainant) house into his own house and his household articles i.e. iron box, fans etc. were thrown in the street. He further stated that the entire occurrence was witnessed by his nephew Baljit Singh and his neighbour Hukam Singh son of Inder Singh. He further stated that later on his nephew Sarwan Singh son of Mehtab Singh and Mangat Ram came at the spot and got him admitted in the Civil Hospital Fazilka in an injured condition. The statement was signed by the complainant which was endorsed by ASI Darshan Singh.
(2.) On the basis of this statement, the FIR in this case was registered against the accused. Investigating Officer conducted the spot investigation and prepared rough site plan of the place of occurrence and also recorded the statements of witnesses under Section 161, Cr.P.C., and after the completion of investigation challan against the accused was presented in the Court and copies of documents relied upon by the prosecution were supplied to the accused free of cost as required under Section 207 Cr.P.C."
(3.) Having found a prima facie case, learned trial Magistrate charged the private respondents under Sections 451, 452, 427, 325, 323, 440 and 148 read with Section 149, IPC, to which the private respondents pleaded not guilty and claimed trial. Prosecution examined complainant Joga Singh as PW-1, Sarwan Singh, eye witness as PW-2, ASI Darshan Singh, the Investigating Officer as PW-3, Dr. Yashpal Jassi as PW-4, SI Harbhajan Singh as PW-5 and Amin Chand as PW-6.;