Salam Vs. State - Court Judgment

Excerpt:
penal code - section 323--some witnesses declared hostile--truthfulness of witnesses not detracted--held, high court cannot convert itself into third court of facts.;it is true that some of the witnesses were declared hostile but it does not in any manner detract from the truthfulness of pws, shvam lal, murari and badri prasad. this court can not in a revision petition convert itself into a third court of facts.;penal code - section 323 sentence--occurrence 11 years back marpeet over trival matter--held, accused should be released on probation.;having regard to the fact that the marpit took place over a trival matter and also to the fact that the occurrence took place nearly 11 years back, the accused petitioner should be released on probation of good conduct.;order accordingly. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 2. however, having regard to the fact that the martpit took place over a triva matter and also to the fact that the occurrence took place nearly 11 year back, the accused-petitioner should be released on probation of food conduct, i would accordingly direct that the accused-petitioner will be released on probation of good conduct on his executing a bond in the sum of rs. 2/00/- with one surely in the like amount to the satisfaction of the trial court to appear and receive sentence when called upon to do also during a period of set months from the date of execution of the said bonds and in the mean time to keep the peace and be of good behaviour.k.s. sidhu, j.1. i have perused the record and find that there is no scope for interference with the order of conviction under section 323 ipc, recorded against the accused-petitioner by the trial court and thereafter affirmed in appeal by the learned sessions judge. the order of conviction is based upon the evidence of pws shyarala, murari and badri prasad. it is true that some of the witnesses were declared hostile but it does not in any manner detract fiotn the truthfulness of pws sbyamlal, murari and badri prased this court, cannot in a revision petition convert itself into a third court of facts. 5 would accordingly affirm the order of conviction as recorded against the accused-petitioner under section 323 ipc.2. however, having regard to the fact that the martpit took place over a triva matter and also to the fact that the occurrence took place nearly 11 year back, the accused-petitioner should be released on probation of food conduct, i would accordingly direct that the accused-petitioner will be released on probation of good conduct on his executing a bond in the sum of rs. 2/00/- with one surely in the like amount to the satisfaction of the trial court to appear and receive sentence when called upon to do also during a period of set months from the date of execution of the said bonds and in the mean time to keep the peace and be of good behaviour. the bonds may be executed within a period of two months from today and the period of probation will commence from the date of execution of the bonds.