BESRIA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant and Smt. Brahmi a widow, were committed to stand trial for an offence under Section 307 IPC. They were charged for an offence under Section 307 read with Section 34 IPC. After trial, the learned Sessions Judge acquitted Smt. Brahmi but convicted the appellant for an offence under Section 335 IPC and sentenced him to undergo imprisonment till the rising of the court and to pay a fine of Rs. 2,000/-. In default of payment of fine, he was to suffer rigorous imprisonment for 9 months. Aggrieved by the said order and judgment of the learned Sessions Judge, he has preferred this appeal.

(2.) The facts lie within a narrow compass and may Ix-. stated in brief. Smt. Brahmi co-accused is stated to be a young widow of 25 years of age. It is stated that after the death of her husband, she developed illicit relations with various persons. She was asked by Sita Ram, one of her relatives, to lead a pious life so that her bad name may not reflect upon the family. She, however, did not desist from her immoral activities. On 15th July, 1982, at 11.00 p.m. in the night, a brother-in-law of Smt. Brahmi noticed the appellant entering her house through a window. An alarm was raised. On hearing, the alarm, Sita Ram PW came on the spot. In the meantime, other persons also came there. The door of the house of Smt. Brahmi was knocked at and she was asked whether anyone entered her house. She replied in the negative and opened the door. Some persons went inside the room. The appellant started swinging a sword which was lying inside the room. It was a pitch dark night. There was no light in the room. Some injuries were caused by the sword EX. P.1 to Sita Ram and Shankar P.W.c. The persons injured were medically examined and injuries on their persons were found to have been caused by a sharp edged weapon.

(3.) It is contended by Shr. M.L. Sharma, learned counsel for the appellant, that the co-accused having been acquitted, there was no justification for convicting and sentencing the appellant. In the alternative, it is contended by him that in case this court comes to the conclusion that the offence against the appellant stands established, he may be given the benefit of the Probation of Offenders Act. It is pointed out by Mr. Sharma, that the appellant is a young man of about 32 years, a simple villager and is the only bread-earning member in the family. According to him, the family consists of about five persons including the appellant and that the appellant is an employee in the Postal Department at Mandi. It is stated by Shri Chaudhary, learned Assistant Advocate General, that the appellant is not a previous convict. Mr. Chaudhary has further contended that in case he is given the benefit of the Probation of Offenders Act, he may be bound down for a reasonable time to keep peace.