IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 3RD DAY OF MARCH 2022

BEFORE

 High Court of H.P.

HON’BLE MR. JUSTICE SANDEEP SHARMA

CR. REVISION NO. 107 OF 2012

BETWEEN:-

SHYAM LAL

S/O SHRI CHINGA RAM,

RESIDENT OF VILLAGE MUKRANA,

POLICE STATION SADAR,

TEHSIL & DISTRICT BILASPUR, 

(HIMACHAL PRADESH)

.. PETITIONER

(BY MR. N.S. CHANDEL, SENIOR ADVOCATE 

WITH MR VINOD GUPTA, ADVOCATE)

AND 

STATE OF HP THROUGH 

RESPONDENT 

(BY MR. SUDHIR BHATNAGAR AND 

MR. DESH RAJ THAKUR,

ADDITIONAL ADVOCATES GENERAL 

WITH MR. NARINDER THAKUR AND 

MR. KAMAL KISHORE & GAURAV SHARMA, 

DEPUTY ADVOCATES GENERAL)

Whether approved for reporting: Yes. 

This petition coming on for orders this day, the court passed the following:

O R D E R 

Being aggrieved and dissatisfied with judgment dated 

4.10.2010 passed by learned Sessions Judge, Bilaspur, District Bilaspur,, 

Himachal Pradesh in Cr. Appeal No. 3 of 2008, affirming the judgment of 

conviction and order of sentence dated 26.12.2007 passed by learned 

Judicial Magistrate First Class, Bilaspur, Himachal Pradesh in case No. 

131/2 of 1998/97 titled State vs. Shyam Lal, whereby learned trial Court,

while holding the petitioner-accused(hereinafter, ‘accused’) guilty of 

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having committed offence punishable under S. 409 IPC, convicted and 

sentenced him to undergo simple imprisonment for two weeks and pay 

 High Court of H.P.

fine of Rs.500/- and, in default of payment of fine, to further undergo 

simple imprisonment for two weeks. 

2. In nut shell, the case of the prosecution is that, on 19.7.1995, 

accused, who was serving as a Process Server in the court of Naib 

Tehsildar, was handed over summons Exhibit PW-3-/A to be served upon

one Sita Ram son of Shri Pohlo Ram for recovery of Rs. 250/-. Though 

the accused, after having served above named person, collected fine of 

Rs. 250/- in the presence of person namely Gurnam Singh PW-7, and 

executed a receipt Exhibit PW-1/B in the presence of Ranjeet Singh, PW

13, however, he failed to deposit the amount in the Government treasury. 

Subsequently on 24.7.1995, another summon was given to the accused 

for serving upon PW-8 Sukh Dei, vide entry made in Register, Ext. PW

4/A, for recovery of Rs. 500/-. Accused served PW-8 Sukh Dei with the 

summons and after having collected fine of Rs. 500/-, executed a receipt 

Exhibit PW-1/D, in the presence of persons namely, Jai Singh PW-9, 

Nand Lal PW-10 and Hari Singh PW-11, however, such amount was 

never deposited in the Government treasury. 

3. Since the accused, despite repeated reminders, failed to 

deposit the amount in Government treasury, an explanation was called 

from him by PW-2 Roshan Lal, the then Naib Tehsildar Swarghat, but yet 

accused failed to deposit the fine amount and as such, information was 

given to the Deputy Commissioner Bilaspur vide Ext. P-3, by Roshan Lal

(PW-2). In the aforesaid background matter was reported to the police by 

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PW-2 Roshan Lal, vide Ext. PW-2/A, on the basis of which, FIR Ext. 14/A 

came to be recorded at Police Station Sadar, Bilaspur. 

 High Court of H.P.

4. PW-14 ASI Tara Singh, conducted investigation. The leave 

application, Ext. PW14/A and specimen handwriting of the accused were 

taken into possession vide memo Ext. PW-14/C. Specimen Handwriting 

and signatures of the accused were obtained by Shri Arun Bhardwaj, PW

15, the then Executive Magistrate Ghumarwin, which are Exts. PW-14/D-1 

to PW-14/D-6 and disputed receipts alongwith aforesaid specimen writing 

and admitted signatures were sent to the handwriting expert, for 

comparison, who vide report Exhibit PW-14/E opined that the receipts in 

issue were issued by the accused and bears his signatures. Exhibit PW

6A and PW-6/B regarding non-deposit of fine, were obtained from PW-6 

Gulab Singh. Abstract of duty register Exts. PW-4/A and PW-4/B were 

also seized form PW-4 Desh Raj 

5. After completion of investigation, police presented Challan in 

the competent court of law, which being satisfied that a prima facie case 

exists against the accused, charged him for commission of offence 

punishable under Ss. 420 and 409 IPC, to which he pleaded not guilty 

and claimed trial. 

6. Prosecution, with a view to prove its case, examined as many 

as 15 witnesses, whereas, accused though in his statement recorded 

under S. 313 CrPC, denied the case of prosecution in toto but failed to 

lead any evidence in his defence despite adequate opportunity given to 

him. 

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7. Learned trial Court, on the basis of evidence, led on record by 

prosecution, though acquitted the accused of charge framed under S. 420 

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IPC but found him guilty for his having committed offence under S. 409 

IPC and accordingly convicted and sentenced him, as per description 

given herein above. 

8. Being aggrieved and dissatisfied with the judgment of 

conviction and order of sentence recorded by learned trial Court, accused 

preferred an appeal before learned Sessions Judge Bilaspur but the same 

was also dismissed vide judgment dated 4.10.2010. In the aforesaid 

background, accused has approached this court in the instant 

proceedings, praying therein for his acquittal after setting aside judgment 

of conviction and order of sentence passed by learned court below

9. Mr. N.S. Chandel, learned counsel for the petitioner duly 

assisted by Mr. Vinod Gupta, Advocate, vehemently argued that the 

impugned judgment upholding the judgment of conviction and order of 

sentence passed by learned trial Court, thereby holding the accused guilty 

of having committed offence punishable under S. 409 IPC is not 

sustainable in the eye of law, as the same is not based upon proper 

appreciation of evidence, as such, same deserve to be quashed and set 

aside. Mr. Chandel, learned senior counsel vehemently argued that since 

report of Handwriting Expert, Ext PW-14/E never came to be proved in 

accordance with law, learned courts below ought not have held the 

accused guilty of having committed offence punishable under S. 409 IPC,

merely on the statement of PW-8 Sukh Dei and PW-9 Jai Singh, 

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especially when both the independent witnesses, PW-10 and PW-11, 

turned hostile. 

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10. Mr. Desh Raj Thakur, learned Additional Advocate General, 

supported the impugned judgments of conviction and order of sentence 

passed by learned courts below and argued that the impugned judgments 

of conviction and order of sentence passed by learned courts below are 

based upon proper appreciation of evidence led on record by the 

prosecution, and as such, present petition deserves to be dismissed. 

While refuting the contentions/submissions made by learned counsel for 

the petitioner, learned Additional Advocate General, submitted that the 

judgment of conviction and order of sentence passed by learned court 

below is not solely based upon the report of the Handwriting Expert, 

rather, the same is based upon statements of material prosecution 

witnesses, who, in unison, have deposed before learned trial court that 

the accused after having served summons upon PW-8 Sukh Dei received 

Rs. 500/- as a fine from her and executed receipt Exhibit PW-1/D. 

11. Lastly, learned Additional Advocate General argued that this 

court, while exercising power under S.397 CrPC has a very limited 

jurisdiction to re-appreciate the evidence, especially when learned 

counsel for the petitioner has not been able to point out any perversity in 

the same. 

12. Having heard learned counsel for the parties and perused the 

evidence led on record by respective parties, vis-à-vis reasoning assigned 

by learned courts below in the impugned judgments of conviction and 

order of sentence, this court sees no reason to interfere in the impugned 

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judgments of conviction and order of sentence passed by learned courts 

below, which otherwise appear to have been passed on the basis of 

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proper appreciation of the evidence, be it ocular or documentary. 

13. With a view to constitute an offence under S.409 IPC, 

prosecution is required to prove that the accused was entrusted with 

property in the capacity of a public servant and he committed criminal 

breach of trust qua that property. Though, in the case at hand, learned 

senior counsel for the accused attempted to carve out a case that at no 

point of time, accused was entrusted with property in the capacity of a 

public servant and he also argued that the accused was not authorized to 

collect the fine, however, careful perusal of the evidence collected on 

record by prosecution, clearly reveals that the accused, who at the 

relevant time was working as a Process Server was entrusted with duty to

serve summons upon PW-8 Sukh Dei and another person Sita Ram, who 

were imposed fine of Rs. 500/- and Rs. 250/- respectively on account of 

encroachment. Though the accused collected fine from both the persons, 

amounting to Rs. 500/- and Rs. 250/- respectively, but failed to deposit 

the same with the Government treasury. 

14. If the statements of PW-1 and PW-2 are read in conjunction, 

they clearly prove the factum with regard to the duty given to the accused 

to serve summons upon PW-8 Sukh Dei (complainant). PW-1 Daya 

Krishan Thakur has categorically deposed that on the askance of the 

accused, he had deposited Rs. 250/- collected by accused from person 

namely Sita Ram in the Government treasury but he never returned that 

money to him. This witness also deposed that despite repeated 

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reminders, accused failed to deposit Rs. 500/- recovered by him from 

Sukh Dei.

 High Court of H.P.

15. Leaving everything aside, accused himself in his statement 

recorded under S. 313 CrPC, admitted the factum with regard to his 

having been deputed to serve summons upon PW-8, complainant on the

given date. In his statement he admitted that he was a public servant in 

the year 1995 and was working as a Process Server in the office of Naib 

Tehsildar Swarghat. PW-1 Daya Krishan and PW-2 Roshan Lal never 

came to be cross examined qua the question of posting and entrustment 

of duty to the accused to serve summons upon PW-8 and as such, it 

stands duly established on record that the accused, in his official capacity,

had gone to residence of PW-8 Sukh Dei to serve summons on 

24.7.1995. 

16. Besides above, accused in his statement recorded under S.313 

CrPC, while answering question No. 11, specifically admitted that on 

24.7.1995, he was given summons vide entry No. 195 made in the 

Register Exhibit PW-4/A to be served upon PW-8 Sukh Dei for recovery of 

Rs. 500/-. Similarly, allegations with regard to collection of Rs. 500/- as 

fine from PW-8 by the accused stands duly proved on record. PW-8 Sukh 

Dei complainant deposed that she is known to the accused, who is 

deployed in Sub Tehsil Swarghat. She stated that about four years back, 

accused came to her house in the presence of PW-9, Jai Singh Pradhan, 

PW-10 Hari Singh and another person and she handed over Rs. 500/- as 

fine in respect of illegal encroachment. She also deposed that the 

accused issued receipt, Exhibit PW-1/D, which was handed over to the 

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police. She deposed that the aforesaid receipt was issued in the 

presence of witnesses. 

 High Court of H.P.

17. Cross-examination conducted upon this witness, nowhere 

suggests that the defence was able to extract anything contrary to what

this witness stated in her examination-in-chief. In her cross-examination, 

she denied the suggestion that no such amount was handed over by her 

to the accused as fine. This witness also denied that Ext. PW-1/D(receipt)

was forged by her in connivance with the police. 

18. Afore version of PW-8 is duly corroborated by PW-9 Jai Singh, 

the then Pradhan, Gram Panchayat, who deposed that PW-8 handed over 

Rs. 500/- to the accused in his presence. He deposed that the accused 

was deployed in Tehsil Office, Swarghat four years back, when he was 

Pradhan of the Gram Panchayat. He deposed that the accused came to 

the house of SuKh Dei and told her that she has been fined Rs. 500/- on 

account of encroachment. He deposed that the accused asked PW-8 

Sukh Dei to hand over Rs. 500/- to him in his presence and two other 

witnesses. He deposed that PW-8 handed over Rs. 500 to the accused, 

who told that proper receipt would be issued by the office but himself 

issued receipt Ext. PW-1/D, which was prepared by him in the presence 

of PW-8 and other witness. 

19. Cross-examination conducted upon this witness also nowhere 

suggests that the defence was able to extract anything contrary to what 

this witness stated in his examination-in-chief. Though, in the case at 

hand, accused set up a plea that he is innocent and has been falsely 

implicated in the case, but while making his statement under S. 313 

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CrPC, he never attributed any motive to PW-8 and P-9, qua his alleged 

false implication. Otherwise also, there is no evidence, if any, led on 

 High Court of H.P.

record by accused, suggestive of the fact that PW-8 and PW-9 were 

inimical towards him and to implicate him, falsely deposed against him. 

20. True it is that the receipt Ext. PW-1/D does not bear signatures 

of PW-9 Jai Singh, but such fact is of no consequence, especially when 

perusal of receipt itself suggests that PW-9, was very much present on 

the spot at the time of its execution. It has been categorically stated in the 

receipt Exhibit PW-1/D that the fine amount was received in the presence 

of Pradhan, Gram Panchayat i.e. PW-9 and persons namely Hari Singh 

and Nand Lal, PW-10 and PW-11. PW-9 has admitted in his cross

examination that the receipt Exhibit PW-1/D does not bear his signatures 

but the presence of PW-9 at the time of execution of receipt Exhibit PW

1/D stands duly proved with bare reading of receipt, which confirms 

receipt of Rs. 500/- as fine by the accused from PW-8, complainant, Sukh 

Dei. 

21. Though learned senior counsel for the accused argued that the 

independent witnesses namely PW-10 Nand Lal and PW-11 Hari Singh, 

have not supported the prosecution case, but cross-examination 

conducted upon these witnesses, if read in entirety, clearly proves their 

presence on the spot at the time of execution of receipt Exhibit PW-1/D. 

Though these witnesses were declared hostile, on account of their failure 

to support the case of the prosecution, but both the witnesses admitted 

their signatures upon the receipt. No plausible explanation came to be 

rendered on record by these witnesses qua their signatures upon receipt, 

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Ext PW-1/D. PW-10 admitted that he has studied upto 10th class and can 

read and write Hindi. Since Exhibit PW-1/D is in Hindi, it is not understood 

 High Court of H.P.

that how, without reading the contents of the receipt, this witness put his 

signatures upon the same. 

22. Merely the fact that the afore witnesses PW-10 and PW-11 

have not supported the prosecution case, would not render statements of 

PW-8 and PW-9 untrustworthy. Rather, if both are read in conjunction, 

clearly prove guilt of accused and as such learned courts below rightly 

placed heavy reliance upon same, while holding accused guilty of having 

committed offence punishable under S. 409 IPC. Otherwise also, denial if 

any on behalf of PW-11 that no money was paid in his presence by PW-8 

Sukh Dei to the accused, is of no consequence, especially when there is 

no dispute that receipt Ext. PW-1/D does not bear signatures of this 

witness, which fact has been admitted by this witness in his cross

examination done on behalf of the accused. Though, PW-10 and PW-11

have not corroborated the version put forth by PW-8 and PW-9, but this 

will definitely not make version of PW-8 and PW-9 unreliable, in light of 

other evidence adduced on record by the prosecution. 

23. Statements of PW-15 Shri Arun Bhardwaj, as well as that of the 

accused recorded under S.313 CrPC, clearly reveal that the specimen 

handwriting and signatures of the accused were obtained in writing during 

investigation. ASI Tara Singh i.e.PW-14 has deposed categorically that the 

same were handed over to the Handwriting Expert alongwith questioned 

documents. Though, the Handwriting Expert opined that the receipt in 

dispute bears signatures of the accused but definitely report never came 

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to be proved in accordance with law, because the prosecution failed to 

examine the Handwriting Expert. 

 High Court of H.P.

24. True it is that, in the case at hand, Handwriting Expert was not 

examined to prove the result of comparison of specimen writing and 

signatures with questioned document including Ext. PW-1/D, however, 

overwhelming evidence apart from report of Handwriting Expert led on 

record by prosecution proves the guilt of the accused beyond reasonable 

doubt. Since it stands duly established on record that Ext. PW-1/D was 

issued by the accused under his hand, non-examination of the 

Handwriting Expert by the prosecution cannot be said to be fatal to the 

case of the prosecution. Report given by the Handwriting Expert duly 

corroborates the version of PW-8 and PW-9. Though the report of the 

Handwriting Expert was not proved in accordance with law, but the same 

can be duly read in corroboration of the version put forth by PW-8 and 

PW-9. 

25. On the basis of statements of PW-8 and PW-9, which have 

been found to be confidence inspiring and worth credence, it stands 

proved that Exhibit PW-1/D was issued by accused under his hand and 

signatures, as such, learned courts below rightly arrived at a conclusion 

that it stands established on record, that the accused received Rs. 500 

from Sukh Dei as fine, on 25.7.1995. 

26. As has been discussed herein above, it stands established on 

record from the statements of PW-2 Roshan Lal, the then Naib Tehsildar 

Swarghat and PW-1, Daya Krishan Thakur, that in the year 1995, 

accused was a Process Server and he was assigned duty to serve PW-8 

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with the summons to pay the fine and he, after having unauthorizedly 

received fine of Rs. 500 from PW-8, failed to deposit the same in the 

 High Court of H.P.

Government treasury. It has come in the evidence of PW-2 that he called 

upon accused to explain vide Exhibit P.4 that, why he has not deposited 

the amount received by him from PW-8 with Government treasury, but 

neither the accused replied to the notice nor deposited the said amount. 

27. Having scanned the entire evidence available on record, this 

court finds no illegality or infirmity in the conclusion drawn by learned 

Courts below that the prosecution has successfully proved its case 

against the accused beyond reasonable doubt that the accused 

misappropriated the amount received by him as fine from PW-8, Sukh Dei 

and as such, committed criminal breach of trust qua said amount.

28. Consequently, in view of the detailed discussion made herein 

above, I find no merit in the present petition, which is accordingly 

dismissed. Impugned judgments of conviction and order of sentence 

passed by learned Courts below are upheld. 

29. At this stage, Mr. N.S. Chandel, Senior Advocate, appearing for 

the accused submitted that since alleged offence was committed in the 

year 1995 i.e. 27 years back, and during the pendency of trial and 

thereafter during proceedings before appellate court, accused has already 

undergone mental trauma coupled with the fact that the accused has 

turned 65 years of age, this court may consider extending benefit of S. 4 

of the Probation of Offenders Act. 

30. In support of the aforesaid arguments, learned counsel for 

the accused also invited the attention of this Court to the judgment 

13

passed by this Court in Yudhbir Singh versus State of Himachal 

Pradesh 1998(1)S.L.J. 58, wherein it has been held as under:

 High Court of H.P.

“9. The only mitigating circumstance that appears to 

be there is that the time gap of about six years between 

the date of occurrence as well as the date of decision of 

this revision petitioner. During this entire period sword of 

present case looming over the head of the petitioner was 

always there. That being so, this court is of the view that 

instead of sending the petitioner to jail as ordered by the 

courts below, he is given the benefit of Section 4 of the 

Probation of Offenders Act. Accordingly, it is ordered that 

he shall furnish personal bond in the sum of Rs. 5,000/- to 

the satisfaction of the trial Court within a period of four 

weeks from today to keep peace and to be of good 

behavior for a period of one year from the date of 

execution of the bond before the court below as well as 

not to commit any such offence. In addition to being 

given benefit of Section 4 of the Probation of Offenders 

Act, petitioner is further directed to pay a sum of Rs. 

3,000/- each to PWs Baldev Singh and Dilbagh Singh 

injured as compensation. Shri R.K. Gautam submitted 

that this amount of compensation be deposited with the 

trial Court on or before 31.8.1997, who will thereafter pay 

the same to said persons.” 

31. In this regard, reliance is placed upon judgment of the 

Hon’ble Apex Court in Ramesh Kumar @ Babla versus State of 

Punjab 2016 AIR (SC) 2858, wherein it has been held as under:

“7. Accordingly the appeal is allowed in part by converting 

appellant’s conviction under Section 307 IPC to one 

under Section 324 IPC. On the question of sentence, it is 

pertinent to note that the occurrence took place in 1997. 

In his statement under Section 313 of the code of 

Criminal Procedure the appellant gave his age in 2002 as 

36 years. He claimed that he and others went to the place 

of occurrence on getting information that his brother 

Sanjay Kumar was assaulted by Ramesh Kumar 

(Complainant). He brought his brother to Police Station 

and lodged a report. As noticed by trial court, parties are 

involved in civil as well as criminal litigation from before. 

High Court has noted that appellant, as per custody 

certificate, is not involved in any other case. In such 

circumstances, it is not deemed necessary to send the 

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appellant immediately to Jail custody after about 19 years 

of the occurrence when he appears to be 50 years of age 

and fully settled in life.

8. In view of aforesaid, in our view the ends of justice 

 High Court of H.P.

would be met by granting benefit of Probation of 

Offenders Act to the appellant. We order accordingly and 

direct that the appellant be released on executing 

appropriate bond before the trial court to appear and 

receive sentence of rigorous imprisonment for 1 (one) 

year when called upon to do so and in the meantime to 

keep the peace and be of good behaviour.”

32. Reliance is also placed upon judgment passed by Hon’ble 

Apex Court Hari Kishan & Anr versus Sukhbir Singh & Ors, 1988 

AIR (SC) 2127, wherein it has been held as under:

“8. The question next to be considered is whether the 

accused are entitled to the benefit of probation of good 

conduct? We gave our anxious consideration to the 

contentions urged by counsel. We are of opinion that the 

High Court has not committed any error in this regard 

also. Many offenders are not dangerous criminals but are 

weak characters or who have surrendered to temptation 

or provocation. In placing such type of offenders, on 

probation, the Court encourages their own sense of 

responsibility for their future and protect them from the 

stigma and possible contamination of prison. In this case, 

the High Court has observed that there was no previous 

history of enmity between the parties and the occurrence 

was an outcome of a sudden flare up. These are not 

showing to be incorrect. We have already said that the 

accused had no intention to commit murder of any 

person. Therefore, the extension of benefit of the 

beneficial legislation applicable to the first offenders 

cannot be said to be inappropriate.

9. This takes us to, the third questions which we have 

formulated earlier in this judgments. The High Court has 

directed each of the respondents to pay Rs.2500/- as 

compensation to Joginder. The High Court has not 

referred to any provision of law in support of the order of 

compensation. But that can be traced to section 357 

Criminal Procedure Code Section 357, leaving aside the 

unnecessary, provides:-

“357. Order to pay compensation:

(1) When a court imposes a sentence of fine or a 

sentence (including a sentence of death) of which fine 

15

forms a part, the Court may, when passing judgment, 

order the whole or any part of the fine recovered to be 

applied-

(a) in defraying the expenses properly incurred in the 

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prosecution;

(b) in the payment to any person of compensation for any 

loss or injury caused by the offence, when compensation 

is in the opinion of the Court, recoverable by such person 

in a civil Court;

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(3) When a Court imposes a sentence, of which fine does 

not form a part, the Court may, when passing judgment, 

order the accused person to pay, by way of 

compensation. Such amount as may be specified in the 

order to the person who has suffered any loss or injury by 

reason of the act for which the accused person has been 

sentenced.

(4) An order under this section may also be made by an 

Appellate Court or by the High Court or Court of Session 

when exercising its power of revision.

(5) At the time of awarding compensation in any 

subsequent civil suit relating to the same matter, the 

Court shall take into account any sum paid or recovered 

as compensation under this Section.

11. The payment by way of compensation must, however,  

be reasonable. What is reasonable, may depend upon the 

facts and circumstances of each case. The quantum of 

compensation may be determined by taking into account 

the nature of crime, the justness of claim by the victim and 

the ability of accused to pay. If there are more than one 

accused they may be asked to pay in equal terms unless 

their capacity to pay varies considerably. The payment 

also vary depending upon the acts of each accused. 

Reasonable period for payment of compensation, if 

necessary by installments, may also be given. The Court 

may enforce the order by imposing sentence in default.” 

33. In view of the aforesaid law as well as submissions having been 

made by learned counsel appearing on behalf of the accused and after 

taking into consideration the facts and circumstances of the present case, 

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I am of the considered opinion that the present accused can be granted 

benefit of Section 4 of the Probation of Offenders Act, 1958. 

 High Court of H.P.

34. Accordingly, Registry is directed to call for the report of the 

Probation Officer concerned on or before next date of hearing.

Registry to list this matter on 5.4.2022.

 (Sandeep Sharma)

Judge

March 3, 2022

(Vikrant)

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