Judgment

Mr. Arun Monga, J.

Complainant is before this Court seeking leave to appeal inter alia against the release of accused/convicts (5 of them) on probation who were convicted vide judgment dated 01.12.2016 passed by learned Additional Sessions Judge, Palwal. They were tried in a complaint case under Sections 148 , 323, 316, 452, 506 read with Section 149 but convicted only under Section 323 IPC and were released on probation under Section 4 of the Probation of Offenders Act, 1958, for a period of six months. They were directed to pay compensation of Rs.5,000/- each (total Rs. 25,000/-) to injured-Nasri, the applicant herein.

2. Succinct facts of the present case, as noted by learned trial Court in the impugned judgment, are that on 27.06.2012 at about 6.00 pm, complainant went to her vacant plot for tethering her cattle. Accused Aslam resisted the same due to which an altercation took place. Later on, accused Yusuf, Aarif, Arshad, Ibri, Islam, Sajid, Kallu, Jubeda, Nasi, Sabroon, Sansida and Asraf, having lathies and dandas, entered complainant’s house and attacked her. Nasri gave kick blow on her stomach, whereas Jubeda gave leg and fist blows. On hearing noises, mother-in-law of complainant came to rescue her. Ashraf gave kick blow to her mother-in-law on her stomach. When they raised hue and cry, Hari Singh and Sabir reached the spot and accused persons fled away threatening to kill the complainant. At that time complainant was four months pregnant. She was taken to hospital where after medical examination it was found that her child died in womb. Only DDR was recorded of the incident and that is where it was dropped.

2.1 A private complaint was then filed by applicant Nasri in the Court against 12 persons, including 5 private respondents No. 2 to 6 herein for offences under Sections 148 , 323, 452, 316, 506 read with Section 149 IPC. The learned Ilaqa Magistrate recorded the preliminary evidence and committed the case to learned Sessions Court as the offence under Section 316 IPC was triable exclusively by the Court of Session.

3. The learned Additional Sessions Judge, Palwal framed charge against all the 12 accused persons for offences under Sections 148 , 323, 452, 316, 506 read with Section 149 IPC. On conclusion of trail, learned Additional Sessions Judge passed the impugned judgment dated 01.12.2016 holding private respondents No. 2 to 6 namely Yusuf, Aarif, Jubeda, Nasri wife of Islam and Shamshida and convicting them for the offence under Section 323 IPC and wholly acquitting the remaining 7 accused. The aforesaid 5 convicts were extended the benefit of probation under Section 4 of the Probation of Offenders Act, 1958 and required to pay the compensation of Rs.5000/- each, total Rs.25000/- to injured/complainant Nasri.

4. The applicant-appellant’s grievance is two fold. Firstly; that the five private respondents have been wrongly acquitted of the charge for offences under Sections 148 , 452, 316, 506 read with section 149 IPC, though they should have been convicted for these offences also; secondly; that the convicts have been wrongly given the benefit of release on probation whereas they should have been sentenced to undergo imprisonment and pay fine.

5. I have heard learned counsel for the applicant-appellant as also learned counsel for private respondents and learned State counsel.

6. Learned counsel for the applicant-appellant argued that there was sufficient and reliable evidence on record proving the commission of offence under Sections 148 , 452, 316, 506 read with section 149 IPC by the private respondents. It was also contended that the learned trial Court erred in law by giving benefit of probation to the