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
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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.
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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
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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
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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
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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
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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;
Xxxxxxxxxxxxxx
Xxxxxxxxxxx
Xxxxxx
(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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