IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 229-SB of 1997
Date of decision: 25-11-2008
Satinder Kumar & others ... Appellants
versus
State of U.T. Chandigarh ... Respondent
THE HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Mr. M.S.Khaira, Sr. Advocate, with
Mr. Dharminder Singh, Advocate
for the appellants.
Mr. Sukant Gupta, Advocate,
for respondent-UT Chandigarh
...
ARVIND KUMAR, J:
This appeal is directed against judgment and order dated
3.5.1996 passed by the Additional Sessions Judge, Chandigarh, whereby
appellants-accused have been convicted under Sections 147,332 read with
Section 149 IPC, 333 read with Section 149 IPC and 427 read with Section
149 IPC and sentenced to rigorous imprisonment for one year each under
Section 147 IPC, 1½ years each under Section 332 IPC, 3 years with fine of
Rs.500/- each under Section 333 IPC and one year each under Section 427
IPC. In default of payment of fine, the accused were further directed to
undergo rigorous imprisonment for three months. All the sentences were
ordered to run concurrently.
The case of the prosecution is that on 27.11.1990, a demolition
drive against unauthorised construction and government land was
conducted under the supervision of S.D.M. Chandigarh. Sh. Ashwani
Kumar Sharma, Tehsildar, Estate Office, Chandigarh, Sahib Singh Sub
Inspector and Head Constable Mam Chand along with five other constables
Crl. Appeal No. 229-SB of 1997 -2-
attached with the enforcement staff was accompanying the S.D.M for the
said operation. When the demolition drive was going on peacefully and
about 20 structures had been demolished, at about 12.20 PM accused Sher
Singh, a Junk dealer, instigated the mob which had gathered there and
under his leadership, the said mob started pelting stones on the staff and
officers. Govt. Vehicles No.CHW 5556 and CHW 9222 were also damaged
by breaking front wind screen of both the trucks. Head Constable Mam
Chand received head injury while he was rescuing one lady on whom
Kerosene oil had been sprinkled by her husband and was going to be burnt
by him. One labourer and S.I. Sahib Singh received injuries. On seeing the
mob turning violent, the whole staff had to take shelter in the vehicles
whereafter they left the spot. Upon identification of the accused persons, a
complaint was then lodged with the police and upon investigation, the
present FIR came to be registered against the said accused. Thereafter, on
completion of necessary formalities, challan under Sections 323, 332,333,
353, 186/427/149 IPC was filed against the accused-appellants and they
were charge-sheeted accordingly, to which they pleaded not guilty and
claimed trial.
During trial, vide order dated 17.11.1995, accused Lakhbinder
Rai was declared a proclaimed offender.
To substantiate the charge, the prosecution examined PW-1
Ashwani Kumar, PW-2 Inspector Sahib Singh, PW-3 Head Constable Mam
Chand, PW-4 Rattan Singh, PW-5 Jagjit Puri (complainant), PW-6 Dr. S.P.
Bhardwaj, PW-7 Devinder Singh, PW-8 Jagdish Parshad Gupta, PW-9
Mans Raj, PW-10 Dr. A.S.Gill, PW-11 Dr. Parminder Singh, PW-12 Balbir
Singh, PW-13 Ranbir Singh, PW-14 ASI Subhash Chander Mehta, PW-15
Jaswant Singh, PW-16 Dilbagh Singh, PW-17 Rajinder Singh, Sub
Inspector, and PW-18 Kuldip Singh, Sub Inspector, and closed its
evidence.
Accused-appellants in their statement under Section 313
Cr.P.C. pleaded innocence and false implication in the case. In defence,
they examined DW-1 Chuni Lal, DW-2 Zaniual Raza, DW-3 Anwar, DW-4
Mohinder Singh, DW-5 Shabudin Ansari and DW-6 Vakil Ansari.
On consideration of the entire evidence on record, the learned
Additional Sessions Judge vide the impugned judgment and order held the
Crl. Appeal No. 229-SB of 1997 -3-
charge proved against accused-appellants and thus, convicted and sentenced
them, as stated above. Hence, the present appeal by the accused-
appellants.
Learned counsel for the parties have been heard.
Counsel for the appellants has not challenged the conviction of
the appellants but has argued on the quantum of sentence. The main stress
is that the appellants have suffered the agony of protracted trial/appeal for
the last 16 years. They remained in jail for more than one year. They are not
previous convicts and as such, are entitled to the concession of probation.
Arguments have been scanned. There is no dispute that the case relates to
the year 1992. The appellants have suffered the agony of protracted
trial/appeal for the last 16 years. It has been stated at the Bar that they
remained in custody for more than one year. It has no where been shown
that they have got previous criminal history. In Nathu Ram v. State of
Punjab, 1990(1) RCR(Criminal) 18, the appellant therein who had been
facing the agony of protracted trial for a long period and was not a previous
convict, was ordered to be released on probation of good conduct. In this
context, reference can also be made to judgments in Virender Kumar v.
State of Haryana, 2004(2) RCR(Criminal) 775; Shiv Parshad v. State of
Haryana, 1997(4) RCR(Criminal) 117; M/s Maya Ram and Sons v. State
of Haryana, 2003(4) RCR(Criminal) 114; Satinder Singh v. Punjab
State, 2003(4) RCR(Criminal) 616; Hanuman v. State of Haryana, 2007
(3) RCR(Criminal) 488; Silak Ram v. Haryana State, 2005(2) RCR
(Criminal) 843 and Jagdish Rai Jain v. State of Punjab, 1988(1) RCR
(Criminal) 470, followed in Vijay Singh v. State of Haryana, 2008(4)
RCR(Criminal) 703. Accordingly, the conviction of the appellants in this
case is maintained and the sentence imposed upon them is set aside.
Instead of that, the appellants are ordered to be released on probation for a
period of one year on furnishing personal bond in the sum of Rs.10,000/-
each with one surety each of the like amount to the satisfaction of the Chief
Judicial Magistrate, Chandigarh, to appear and receive sentence, as and
when called upon to do so, during this period and in the meantime, to keep
the peace and be of good behaviour and also furnish an undertaking not to
commit such an offence during the said period. The fine so imposed shall
be treated as costs of the litigation. Necessary bonds be furnished within
Crl. Appeal No. 229-SB of 1997 -4-
one month. In case of failure on the part of the appellants to furnish the
requisite bonds within the period stipulated, the sentence awarded to the
appellants by the trial Court shall revive.
Appeal stands disposed of in the terms indicated above.
November 25, 2008 (ARVIND KUMAR) JS JUDGE