Devender Sagar vs State Of Haryana on 31 August, 2017

Crl. Revision No. 2112 of 2011 1

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Revision No. 2112 of 2011 (OM)
Date of decision: August 31, 2017

Devender Sagar
…Petitioner
Versus
State of Haryana
…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present: Mr. Ashit Malik, Advocate,
for the petitioner.

Ms. Harpreet Kaur, AAG, Haryana.

JAISHREE THAKUR, J.

1. Petitioner–Devender Sagar had been convicted by the

Judicial Magistrate 1st Class, Kurukshetra, on 18.12.2009 in FIR No. 193

dated 20.5.2001 under Sections 354, 452 and 506 IPC and sentenced as

under:-

Sr. Under Sentence Imposed Fine (in ` )
No. Section
1. 452 IPC To undergo rigorous imprisonment for a 1500/-
period of one year.
2. 354 IPC To undergo rigorous imprisonment for a 1000/-
period of one year.
3. 506 IPC To undergo rigorous imprisonment for a 1500/-
period of one year.

In default of payment of fine, the petitioner was further to undergo simple

imprisonment for a period of two months. The petitioner herein preferred an

appeal against the judgment of his conviction, which was partly allowed by

learned Sessions Judge, Kurukshetra, by his judgment dated 29.8.2011. The

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petitioner was sentenced to undergo rigorous imprisonment for a period of 9

months and to pay an amount of `1500/- under sections 452 IPC, to

undergo rigorous imprisonment for a period of 9 months and to pay of an

amount of `1000/- under section 354 IPC and rigorous imprisonment for a

period of 6 months and to pay an amount of `1500/- under section 506 IPC

and in case of default in payment the petitioner was to undergo simple

imprisonment for a period of two months. Feeling aggrieved against the

judgments of both the courts below, the petitioner has approached this court

through the instant revision petition.

2. Learned counsel for the petitioner at the outset states that he is

limiting his prayer only to the extent of reduction in the sentence awarded

and does not assail the judgment of conviction. He further states that he is

conscious that scope in revision is very limited, as evidence of the witnesses

cannot be re-appreciated or re-evaluated.

3. In brief, the facts are that the complainant Shashi Bala is the

widow of Chander Mohan, real brother of the petitioner–Devinder Sagar.

The complainant, her husband and their son were joint in mess with the

petitioner and his family and later on the joint house was partitioned. After

the death of the husband of the complainant, the petitioner entered the house

of the complainant on 12.05.2001 at about 9.00 a.m., while she was alone

since her minor child had gone to school, and molested her. A complaint

was lodged on 16.05.2001 before the JMIC Kurukshetra and thereafter a

criminal case under sections 354/452/506 IPC was registered on 25.5.2001.

Jagadish Chand, Head Constable was examined as PW1 and Shashi Bala

complainant was examined as PW2 . Thereafter, the evidence of the

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prosecution was closed by court order on 11.5.2009 after availing 19

opportunities to conclude its evidence. In his defence, the petitioner

examined Ashok Kumar, ASI as DW1 and also tended in evidence certified

copies of documents, mortgage deeds exhibit DB and exhibit DC, plaint of

Civil Suit No. 105 of 2001 exhibit DD, order in Civil Suit No. 105 of 2001

exhibit DE, plaint of Civil Suit No. 106 of 2001 exhibit DF, order dated

09.05.2001 in Civil Suit No. 106 of 2001 exhibit DG, plaint of Civil Suit

titled as Shashi Bala versus Devendra Kumar exhibit DH, judgment in

Criminal Appeal No. 9 of 2008 dated 24.08.2009 exhibit D1, Criminal

Complaint No. 337 of 1998 exhibit DJ and plaint exhibit DK of Civil Suit

No. 25 of 1999 and thereafter closed his evidence. After hearing arguments,

the petitioner was held guilty and convicted under Sections 354/452/506

IPC by the JMIC and sentenced, as aforesaid. The sentences were

subsequently reduced in appeal, while upholding the judgment of

conviction.

4. Learned counsel for the petitioner has submitted that there was

animosity between the complainant and the petitioner over the property

which led to multifarious litigation between the parties. It is also contended

that in the instant case there is no direct evidence available on the record

other then the testimony of the complainant. It is also argued that other than

the investigating officer no independent witnesses have been examined

despite availing of 19 opportunities to lead evidence. Counsel also argues

that the incident was of the year 2001 and since then 16 years have passed.

5. In response, learned counsel for the State has submitted that

keeping in view the nature of allegations and the facts and circumstances of

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the case, which have been held to be duly proved by both the Courts below,

the petitioner is not entitled to the benefit of probation.

6. On a perusal of the judgments of both the courts below, I am of

the considered view that the trial court has rightly appreciated the evidence

on record while holding the petitioner guilty of the charge framed against

him. The appellate court has also rightly dismissed the appeal while

reducing the sentence awarded. There is no infirmity or illegality in the

findings given by both the courts below and the scope in revision is very

limited as evidence of the witnesses cannot be re-appreciated and re-

evaluated. The conviction of the petitioner is, thus, affirmed.

7. At this stage counsel for the petitioner (who is out on bail),

pleads for reduction of sentence to already undergone and release on

probation. As per Section 360 the Code of Criminal Procedure, when any

person not under 21 years of age, is convicted for an offence punishable

with fine only or with imprisonment for a term of seven years or less or a

person under 21 years of age or any woman convicted for offence not

punishable with death or imprisonment for life and not a previous convict,

can be released on probation, in case, it appears to the Court that his or her

conduct is such and it is expedient that the offender should be released on

probation instead of sentencing him at once to any punishment provided

after considering age, character, antecedents or physical and mental

condition of the offender.

8. In the present case, the ground made out is that petitioner who

is now almost 59 years of age has faced criminal proceedings for the last

about sixteen years. It is also submitted that he has the responsibility of

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looking after his young grandchildren.

9. After hearing the argument of the learned counsel and perusing

the case law, it is noted that there is a dispute between the families over

properties and other than litigation between themselves the petitioner herein

does not have any criminal antecedents. Moreover the petitioner now aged

59 years has already suffered a protracted trial, therefore, I am of the

considered opinion that ends of justice would be met completely if the

sentence of the petitioner is reduced to the period already undergone.

However, the fine imposed by the appellate court shall be enhanced to

`5,000/- over the amount already assessed, to be deposited within one month

with the trial court. Except for the modification in the quantum of sentence,

as indicated herein above, the revision stands dismissed.

August 31, 2017 (JAISHREE THAKUR)
prem JUDGE

Whether speaking/reasoned Yes
Whether reportable No

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