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Mangal Singh and anr. Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 347 of 1970
Judge
Reported in1971WLN23
AppellantMangal Singh and anr.
RespondentThe State of Rajasthan
Cases Referred and Rattan Lal v. The State of Punjab
Excerpt:
.....spot as they have made their minds already. i am not quite convinced about the presence of accused sahab singh at the spot at the time of the incident. there is no evidence whatsoever that earlier to the incident he had instigated his son. though there are strong suspicions against sahab singh but they cannot be a substitute for evidence of abatement. sahab singh should, therefore, be given the benefit of doubt.;(b) interpretation of statutes - words not ambiguos--held, not to be construed too liberally.;there is no escape from the principle of interpretation that if the language of a particular provision is clear and unambiguous effect has to be given to such language and in applying the provision its words have not to be strained thereby doing violence to the language. the purpose of.....kan singh, j.1. accused mangal singh and sahab singh were convicted by the assistant sessions judge no. 1, dholpur of offences under sections 326 and 326 read with section 34 indian penal code respectively each one of them was awarded a sentence of three years' rigorous imprisonment with a fine of rs. 250/-; in default six months' further rigorous imprisonment. the learned assistant sessions judge further ordered that at amount of rs. 250/- out of the fine, if realised, shall be paid to injured gordhana. the accused lodged an appeal before the learned sessions judge bharatpur which was transferred to the learned additional sessions judge dholpur who had dismissed it and maintained the conviction and the sentence awarded to the accused petitioners. they have come up to this cour in.....
Judgment:

Kan Singh, J.

1. Accused Mangal Singh and Sahab Singh were convicted by the Assistant Sessions Judge No. 1, Dholpur of offences under Sections 326 and 326 read with Section 34 Indian Penal Code respectively Each one of them was awarded a sentence of three years' rigorous imprisonment with a fine of Rs. 250/-; in default six months' further rigorous imprisonment. The learned Assistant Sessions Judge further ordered that at amount of Rs. 250/- out of the fine, if realised, shall be paid to injured Gordhana. The accused lodged an appeal before the learned Sessions Judge Bharatpur which was transferred to the learned Additional Sessions Judge Dholpur who had dismissed it and maintained the conviction and the sentence awarded to the accused petitioners. They have come up to this Cour in revision.

2. There was bad blood between P.W. 1 Gordhana and the two accused on account of a dispute about an agricultural land. Mangal Singh was the son aged about 14 years at the time and Sahab Singh was his father. After the death of one Lochan, his widow had sold away Lochan's share in the agricultural land to Smt. Janak Pyari, wife of accused Sahab Singh. Lochan's land was joint with the land of Gordhana's father. Lochan had no son and, therefore, Gordhana and his father Dwarka considered themselves entitled to inherit Lochan's share in the land as the land had not been partitioned by metes and bounds. The accused, on -the other hand, wanted to-have the share of Lochan on the basis of the alleged sale. On the night between 3rd and 4th of October, 1968, Gordhana (P.W. 1) was sleeping outside his house in village Tehaniapura. While he was asleep on the cot, the two accused had attacked him. Mangal Singh was armed with a sword and Sahab Singh with a lathi. They first asked Gordhana to hand over Lochan's land to them otherwise they would kill him. Gordhana expressed his inability to do so. Thereupon, Mangal Singh gave a sword blow to Gordhana on the left parietal of the head. He repeated the blow which fell on the hand cutting the little finger. The third blow, which Mangal Singh gave, resulted in the injuries to the little and ring finger of the right hand. Sahab Singh who was With his son gave a lathi blow on the head of Gordhana. On hearing the cries of Gordhana, his brother Akhar (P.W. 2) and Banshi Thikur (P.W. 3) came to the spot. Also P.W.5 Smt. Ayodhya and P.W.6 Smt. Dropati came there. Seeing them, the two accused filed away.

3. On the following day Gordhana lodged information at Police Station, Mania at about 2 p.m. The first information report was Ex P. 1 in the case. The police registered a case against the two accused and investigated the matter. The site was inspected and the scabbard of the sword that was carried by Mangal Singh was recovered from the site. Further, the Sub-Inspector noticed marks of blood on the 'chabutra' where Gordhana was sleeping on the cot. The injuries of Gordhana were examined by Dr. Dalip Singh, the Medical Officer at Dholpur. Gordhana had the following injuries on his person:

1. Incised wound 1' X 1/2' X bone deep on the hair line above the centre of the nose from left to right and below upward. The wound is horizontal and there is mark of injury on the frontal bone in the central part of the wound.

2. Ecchymosis at the left upper and lower lids and no injury to the eye balls.

3. Incised wound 4' long starting from 1/4' left eye brow on the left forehead and extending upto face 3/4' in front of the juncture of the upper two-third and lower one-third of the left lobules of the ear, into 3/4' X muscle deep from outer to inner side and from below upward.

4. Incised wound 1' X 1/6' X 1/8' on back of the lower one-third of the left fore-arm.

5. Incised wound 1' X 1/6' X 1/8' on the back and inner side of the second digist of the right little finger.

6. Amuption of the left little finger just below the upper end of the middle digist and lower part of it is attached with upper part with skin which is 1/4' X 1/4' and this was separated by doctor in the hospital. This wound was also incised one.

7. Incised wound 1/2' X 1/6 X 1/8' on the inner side of the first digist of the left ring finger.

After the necessary investigations the two accused were challaned with the result mentioned at the outset.

4. The prosecution case depended on the direct evidence of P.W.I Gordhana, his two relatives P.W 2 Akhar and Banshi P.W.3. Smt. Ayodhya (P.W.5) and Smt. Dropati (P.W 6) had denied to have seen the incident. They further stated that none had informed them that it were the accused who had inflicted the injuries to Gordhana

5. Having been taken through the relevant record, I am satisfied that the case has been fully made out against Mangal Singh. It must be stated in fireness to learned Counsel for the petitioners that they did not seriously question the conviction of Mangal Singh for the offence under Section 326 Indian Penal Code. About him it was only submitted that he was a boy of 14 years, that is, below 21 years in age and, therefore, the courts below should have given him the benefit of Section 6 of the Probation of Offenders Act (hereinafter called the Act) and should not have sentenced him. I will be dealing with this aspect of the matter a little later. I may here first dispose of the case of Sahab Singh.

6. It was contended that the witnesses were interested and the courts below were in error in convicting Sahab Singh by applying sec 34 Indian Penal Code to the case. It was pointed out that while Gordhana had stated in court that Sahab Singh instigated his son on the spot to give sword blows to him and he went on goading his son at each blow of the sword, the first information report, which was lodged by none other than Gordhana himself, does not make mention of any such instigation. The case regarding instigation, according to learned Counsel, has thus been developed later on at the trial stage to implicate Sahab Singh. Then, it was submitted that almost all the injuries except No. 2 were caused by a sharp weapon. Injury No. 2 was only an ecchymosis at the left upper and lower lids and no injury to the eye balls was caused. According to the learned Counsel, this injury cannot be said to be an independent one but could be the result of most probably injury No. 3 which was an incised wound smarting from the left eye brow extending to the forehead. Indeed, according to learned Counsel, ecchymosis may not have been the result of any lathi blow.

7. The first information report is a fairly detailed document. It is stated therein that Gordhana's father had purchased the field from Phoolwati about a year before the incident, and Sahab Singh wanted to take its possession from them. When Gordhana was sleeping on the cot outside his house the accused came to him at about 4 a.m. The two accused came near the cot. Mangal Singh had a sword and Sahab Singh was carrying a lathi. Mangal Singh told him that as he had net given them the field. He than gave a blow with a sword which fell on the temple of the injured. The second blow was given by him which was received by the injured on the fingers of his band, as a result of which the little finger as also the ring finger. He then stated that Sahab Singh gave a lathi blow be his head. When he cried, his brother Akhar, Dropati, Thakurani and Banshi came on the spot and saved him.

8. The first information report was put to the witness in cross-examination. It is evident that the first information report does not make any mention of any instigation on the spot. It is also not natural that the two accused being father and son there would be any necessity of a further instigation on the spot as they must have made up their minds already. It app are that the son was made the instrument for wrecking vengeance by injuring Gordhana while he would be asleep. It, therefore, does appear that the father himself may not have gone to the spot. If he were to go to the spot armed with a lathi then why he should just inflict one blow with the lathi causing only an ecchymosis. He could have as well inflicted several blows with his lathi as their .enemy was in a helpless state and was thus an easy prey for them. Three blows were first given by Mangal Singh. According to Gordhana the first injury was in the centre of the nose. The third injury mentioned in the injury report was again a 4' long wound starting from left eye brow and going on the left foaehead. These injuries must have resulted in good deal of bleeding and blood must have in?vitably clouded the vision of the injured. Ecchymosis on the left upper and lower lids without any injury to the eye ball could be caused by his failing on receiving the blows and one cannot be caused only by a lathi blow. Looking to all the facts and circumstances of the case, therefore, I am not quite convinced about the presence of the accused Sahab Singh at the spot at the time of the incident. There is no evidence whatsoever that earlier to the incident he had instigated his son. Though there are strong suspicions against Sahab Singh but they cannot be a substitute for evidence of abetment. Sahab Singh should therefore, be given the benefit of doubt.

9. Now I may turn to the question whether Mangal Singh can claim the benefit of Section 6 of the Probation of Offenders Act which I may read:

Section 6 Restrictions on imprisonment of offenders under twenty year's of age-

(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life) the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4, and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.

(2) For the purposes of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report, if any and any other information available to it relating to the character and physical and mental condition of the offender.

10. According to the plain meaning of the section, the benefit can be given only to a person under 21 years of age when he is found guilty. Then he should have been found guilty of having committed an offence punishable with imprisonment but not with imprisonment for life. Again the court may refuse to give the benefit of doubt to an accused if it is satisfied that having regard to the circumstances of the case including the nature of the offence and the character of the off under such benefit should not be given to the convicted person. For this, the court has to record its reasons. There is no dispute that Mangal Singh was below 21 years of age both at the time the offence was committed & at the time he came to be convicted The question is whether the offence under section 326 Indian Penal Code of which he was convicted was though punishable with imprisonment or imprisonment for life, would take away the case out of the ambit of section 6 of the Act. Learned Counsel for the accused-petitioner had contended that section 6 was a beneficent piece of legislation and, therefore, the section should be so construed as to advance the underlying object of the legislation. It was submitted that the provision for life imprisonment for the offence under Section 326 Indian Penal Code when the maximum imprisonment of 10 years was prescribed was in the nature of an ornamental provision. Similar provision regarding the sentences existed in various other sections in the Penal Code. It was again emphasised that the case was tried by an Assitant Sessions Judge who could no have awarded any sentence of imprisonment beyond seven years rigorous imprisonment was awarded and, therefore, the maximum sentence of imprisonment that could be said to be prescribed would be really 10 years imprisonment and not imprisonment and not imprisonment for life. On these premises, it is argued that the case, of accused Mangal Singh is covered by Section 6 of the Act. Learned Counsel placed reliance on two decisions of the Supreme Court reported as Ramji Missar and Anr. v. State of Bihar : AIR1963SC1088 and Rattan Lal v. The State of Punjab : 1965CriLJ360 . In the first case, their Lordships pointed out that the object of the Act is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted by the Act is to Attempt their possible reformation instead of inflicting on them the normal punishment for their crime. The object of the Act would make it clear that the question of the purpose of determining his guilt but only for the purpose of the punishment which he should suffer for the offence of which he has been found guilty. Their Lordships also pointed out that the Probation of Offenders Act was a beneficent statute.

11. In the second case their Lordships had to consider whether the provisions of the Act could be availed of by an accused who was found to have committed the act before the passing of the Act. Their Lordships held that this Act was retrospective and was an espost facto legislation. Their Lordships further pointed out that subject to the conditions laid down in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Section 3 and 4 of the Act. In para 6 of the judgment their Lordships further observed that an ex-post facto law which only molifies the rigour of a criminal law does not fall within the said prohibition that every law which takes away or impairs a vested right is prospective. Their Lordships quoted the following passage from Maxwell in his book 'On Interpretation of Statutes'

The tendency of, modern decisions, upon the whole, is to narrow materially the difference between what is called a strict and a beneficial construction. All statatutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, than formerly. It is unquestionably right that the distinction should not altogether erased from the judical mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leave a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.

12. Learned Counsel for the petitioner strongly leans on this quotation. There is no gain saying the fact that the Act is a beneficent piece of legislation but in my humble view at the same time there is no escape from the principle of interpretation that if the language of a particular provision is clear and unambiguous effect has to be given to such language and in applying the provision its words have not to be strained thereby doing violence to the language. The purpose of interpreting a statute is to get at the intention of the Legislature and such intention is best expressed by the language that is employed. Words are the instruments employed to express the intention of the legislature. Though it times words are not servants or instruments of precision, it is only where the order are capable of being given two meanings on account of their ambiguity that the question of applying the principle of construing a provision in favour of the citizen would arise. Also if a too literal construction is likely to lead to an absurd or irrational result then the strict literal meaning of the words may be departed from because the legislature to not presumed to intend an absurdity or an irrational result. But where this is not quite clear, they have to be given effect to. Even in the passage quoted by their Lordships it has been brought out that the effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons or interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself, but this principle, according to their Lordships, yields to the paramount rule that every statute is to be exponuded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.

13. In Chapter 2 of his book Maxwell has pointed out that primary rule of construction is that the primary rule of construction is that the object of all interpretations is to discover the intention of Parliament and the intention of Parliament must be deduced from the language used, for it is well accepted that the beliefs and assumptions of those who framed Acts of Parliament cannot make the law (page 28 of the 12th edition).

14. Again at page 36, the author has pointed out that a construction which would leave without effect any part of the language of a statute will normally be rejected.

15. The words have to be read in their droper context. The words are like chameleons which take their colour from the context.

16. Chapter 4 deals with beneficial construction. It is pointed out at page 92 that the construction of a statute must not so strain the words as to include cases plainly omitted from the natural meaning of the language.

17. Section 6 of the Act embodies restrictions on imprisonment of offenders under 21 years of age as the marginal heading itself suggests, It specifies to what offences the section is applicable. It is said that it is applicable to all offences punishable with imprisonment but not imprisonment for life Thus, the offences which are also punishable with imprisonment for life, though they may be punishable with imprisonment, are outside the ambit of the section. The word 'punishable' means liable to be punished. What is the liability to punishment created for a particular offence will have to be found out from the provision dealing with such Section 326 Indian Penal Code runs as follows:

326. Whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallows or to receive into the blood or by means of any shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

18. This section shows that there are two alternative punishments prescribed. One is imprisonment for life and the second is imprisonment of either description for a term which may extend to ten years. The accused is thus liable to any of the two kinds of punishments. One may be imprisonment for life and the other imprisonment of either description for a term which may extend to ten years. In an appropriate case even life imprisonment could be awarded looking to the seriousness of the violence done to the victim and also in the light of the other circumstances attending the crime. It may be that the case was tried by a Judge who was not empowered to inflict the said punishment of imprisonment for life or that eventually the accused was awarded a sentence of there years' rigorous imprisonment only, but that, in my humble view, is beside the point. In construing Section 6 of the Act it is the punishment that is awardable for the offence that determines the question whether the section applies or not. What sentence was awarded by a court with limited jurisdiction or with full jurisdiction to award any sentence prescribed by law are beside the point. One cannot consider the provision for life imprisonment as just an ornament provision because that will amount to ignoring certain words in the section and will render that provision otose. It may be that life imprisonment in a case under Section 326 Indian Penal Code may be awarded in rare cases but that will not mean that there will never be rare cases justifying a sentence of imprisonment for life. The idea in making provision for the two kinds of sentences seems to be that in awarding imprisonment up to ten years the court has discretion to award any lesser sentence according to the circumstances, but where the court thinks that a sentence exceeding ten years' rigorous imprisonment is called for, then the only other sentence above the sentence of ten years rigorous imprisonment would be life imprisonment. What would be the proper sentence within the maximum provided for the offence is primarily for the convicting court to decide and that discretion has to be exercised in such a manner that a reasonable balance is maintained between the seriousness of the crime and the punishment to be imposed. The determination of the right measure of punishment is often a point of difficulty and hard and fast rules have not been laid down and the determination of the sentence has been left to be guided by a variety of considerations. I am, therefore, satisfied that the case of the accused Man-gal Singh is not covered by Section 6 of the Act. Though Mangal Singh was young, the attack was made by him with a sword on a person who was sleeping in the early hours. A number of sword blows were given and it was just by a sheer good luck that Gordhan did not die at the hands of Mangal Singh. The sentence of three years' rigorous imprisonment awarded by the courts below cannot, therefore, be said to be out of proportion to the gravity of the offence.

19. In the result, the revision application of Mangal Singh is dismissed, but the revision application of Sahab Singh is allowed. His conviction and sentence are-set aside and he is hereby acquitted. Sahab Singh is already on bail and his bail bonds shall stand cancelled.


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