Delhi District Court
) Vicky @ Devender vs State on 22 January, 2019
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03 (SOUTH), SAKET COURTS, NEW DELHI
Criminal Appeal No.110/18
1) Vicky @ Devender
S/o Sh. Ramji Lal,
R/o F-2/507, Sangam Vihar,
New Delhi
........... Appellant
Versus
State
...........Respondents
Date of Institution : 24.03.2018
Arguments heard on: 15.01.2019
Date of Judgment: 22.01.2019
JUDGMENT
1. In this appeal filed u/s 374 (3) CrPC, appellant/convict has assailed the impugned order dated 06.02.2018 and 13.02.2018 passed by the court of Ld MM-02 (Mahia Court), South, Saket Courts, New Delhi, in FIR No. 120/2016, PS Sangam Vihar.
2. Vide impugned order dated 06.02.2018, Ld. trial court has convicted the appellant for the offences punishable U/s 323/354/354B/354D/451/506/509 IPC on the plea of guilt. Vide impugned order dated 13.02.2018, Ld. trial court sentenced the appellant with SI for six month for the offence of Section 323 IPC, SI for six months for the offence of Section 451 IPC, SI for six months and fine of Rs.10,000/- for the offence of Section 354D IPC, SI of one year for the offence of Section 506 IPC and SI for six months and fine of Rs.5000/- for the offence of Section 509 IPC. But strangely, the trial court did not award any sentence in default of payment of fine amount. As per trial court record, no fine was deposited by the CA No.110/18 Page no.1/9 Vicky @ Devender vs. State convict/appellant in the trial court. Hereinafter, appellant shall be referred as accused.
3. As per the trial court record, the brief background of the case is that on the written complaint dated 18.02.2016 of complainant Pooja Kumari, an FIR No. 120/2016 was registered at PS Sangam Vihar. FIR was registered for the offences u/s 354A/354D/323/506/34 IPC. In the above complaint, complainant came up with the allegations that one boy living in the neighbourhood namely Vicky had been following her for last many days. On 18.02.2016, he was making gestures towards her and came towards the gate of her house and tried to pull her. However, the complainant's brother Vipin intervened to stop the accused upon which, a scuffle ensued between her brother and accused and the accused pulled her brother from the house and gave him beatings. When her (complainant's) mother Smt. Gayatri Devi came outside to save complainant's brother from the clutches of the accused, in the meantime, the parents of the accused Vicky namely Ramji Lal and Rani Devi (though the name of the mother is not mentioned in the complaint) also came there and they gave beatings to the mother of the complainant and dragged her by pulling her hair. It is further alleged in the complaint that accused Vicky used to misbehave with the complainant whenever, she used to visit outside and also used to play music in loud volume so as to cause disturbance in the studies of complainant and her sister. Further that, the accused Vicky and his mother also threatened them to kill in case, complainant or her family members approached police. On said statement, FIR was registered and during investigation, IO got the statement of the complainant recorded u/s 164 Cr.P.C., on 20.02.2016.
4. After completing the investigation, IO filed the charge CA No.110/18 Page no.2/9 Vicky @ Devender vs. State sheet against three accused namely Vicky (appellant herein), Ramji Lal (appellant's father) and Ram Payari (appellant's mother) before the trial court on 12.08.2016. Accused Vicky and Ramji Lal were charge- sheeted for the offences of Section 354/354A/354D/452/323/506/34 IPC while accused Ram Payari was charge sheeted only the offence of Section 323/506/34 IPC. On the charge sheet, Ld. Magistrate took the cognizance and summoned all the three accused persons. Vide order dated 27.10.2017, Ld. Trial court framed the charges against accused Ramji Lal and Ram Pyari @ Rani Devi for the offences punishable u/s 323/506/509 IPC to which they both pleaded not guilty and claimed trial. Since accused Vicky was not present on that day, the case was adjourned for framing of charge against him on next date. On 06.02.2018, all the accused were present in the court with the counsel and the trial court framed charges for the offences punishable u/s 323/354/354B/354D/451/506/509 IPC against accused Vicky and after the said charges were read over to the accused, the accused stated 'Ye sab hua tha' and 'maine kiya tha'. Upon said admission of guilt made by the accused, Ld. Trial court convicted him for all said offences and put up the case for arguments on sentence. Vide order dated 13.02.2018, Ld. Trial court sentenced the accused in the aforementioned terms.
5. The impugned orders have been assailed in the present appeal on the grounds that complainant had lodged a false complaint against the accused under the pressure of her parents as her parents were against her marriage/relationship with the accused; that the complainant told appellant to impress her parents by confessing in the court regarding his guilt so as to close this case once for all and without knowing the consequences, the appellant stated the entire facts and signed on the charge framed on 06.02.2018; that appellant CA No.110/18 Page no.3/9 Vicky @ Devender vs. State got married with the complainant in Arya Smaj Mandir on 15.02.2018 and complainant had also given a written complaint against her parents for seeking police protection for the appellant to SHO PS Sangam Vihar; that the parents of the complainant managed to forcibly take her with them and after the complainant went with her parents, she changed her mind and refused to join back the company of the appellant; that the appellant admitted the allegation as he was not aware about the consequences of said act nor the trial court made him aware about the consequences of his admitting guilt; that Ld. trial court has not properly utilized the discretion u/s 242 Cr.P.C. and wrongly convicted him on the basis of his plea of guilt.
6. Arguments raised on behalf of appellant were more or less on the same lines of grounds as mentioned above. In addition, counsel for appellant further argued that the plea of guilt was not recorded in the language of accused which is the mandate of law and before recording the plea of guilt, the accused was not made aware of the consequences of admission of guilt and hence, the same cannot be relied upon to record conviction against the appellant. Counsel further argued that the plea of guilt made by the accused was not voluntary as the same was made by the accused under some misconception of facts.
7. Now the question that comes up for consideration before this court is whether the appeal against the order of conviction based on plea of guilt is maintainable in view of the bar of Section 375 Cr.P.C. In Mrs. Govindraj vs. Custom, Writ Petition (Crl.) 508/2015 decided on 07.08.2015 following observations were made by Hon'ble High Court while dealing with above question:-
"Normally the plea of guilt would be regarded as a waiver of the right of appeal except as to the severity or the legality of the CA No.110/18 Page no.4/9 Vicky @ Devender vs. State sentence. In the present case, the plea of guilt of the petitioner is more a statement out of the frustration and desperation and not a statement accepting the guilt. A plea of guilt made by an accused under such circumstances namely lack of knowledge and understanding, poverty, desperation, lack of proper advice, unavailability of experienced counsel may not be accepted as a plea of guilt and Section 375 of the Code of Criminal Procedure would not come in the way of preferring an appeal against the judgment and order of conviction. Such an appeal, if so filed ought not only to be heard on the question of sentence."
8. Hon'ble Delhi High court in the given case entertained the writ petition and directed to entertain an appeal even against the judgment of conviction, without entertaining the caveat of Section 375 Cr.P.C. Apart from above case laws cited, there is one more case dealt by Hon'ble High Court of Sikkim in the case of Pushpa Kumar Rai v. State of Sikkim, 1978 CrLJ 1379. In that case, Hon'ble High Court of Sikkim was dealing with an order of conviction on the basis of plea of guilt of the accused and while dealing with the bar created by Section 412 Cr.P.C. 1898 (analogous provision to 375Cr.P.C.), the court made the following observations:
"Under Section 412 of the Cr.P.C. 1898, where an accused person has pleaded guilty and has been convicted on such plea by any Court or Magistrate, other than a Magistrate of the Second Class or the Third Class, there shall be no appeal except as to the extent or legality of the sentence. But it is by now well settled that though ordinarily in the case of conviction on a plea of guilty, there is a bar under Section 412 of the Cr.P.C. 1898, for an appeal except as to the extent or legality of the sentence, still if the facts alleged or disclosed do not amount to the offence for which a charge has been framed, a plea of guilty to such a charge is no bar for an appeal on merits and will not stand in the way of the accused being acquitted. Reference in this connection may be made to the decision of the Madras High Court in re. U.R. Ramaswami (AIR 1954 Mad 1020 at p. 1021): (1954 CrLJ 1567) and also to the Division Bench decision of the Madhya Pradesh High Court in the State of Madhya Pradesh v. Mustaq Hussain (AIR 1965 Madh Pra 137 at p. 138):
(1965 (1) Cri LJ 711 at p. 712), where the said Madras decision has been relied on. Therefore, the question as to whether there were sufficient materials on record to justify the framing of the charge to which the accused appellant appears to have pleaded guilty, is of great importance in this case."CA No.110/18 Page no.5/9
9. Thus, in the light of the judgment passed by Hon'ble Delhi High Court in the case of Govindraj (supra) and Hon'ble Sikkim High Court in the case of Pushpa Kumar (supra), it can be safely assumed that Section 375 Cr.P.C. does not come in the way to assail an order of conviction, if it is established that the plea of guilt was vitiated by some relevant factor or that the ingredients of alleged offences were not satisfied by the case of prosecution or the complainant, as the case may be for which order of conviction was recorded.
10. Though the impugned order dated 06.02.2018 mentions the presence of counsel for the accused but, perusal of the trial court record shows that Mr. Ram Kumar Yadav Advocate, was the counsel for the accused Ramji Lal and his wife Ram Pyari @ Rani Devi. As per record, there are three vakalatnamas, first vakalatnama dated 16.12.2016 was of counsel Mr. Bhagwan Jha, Advocate on behalf of accused RamJi Lal, second vakalatnama dated 27.10.2017 was filed by Advocate Mr. Ram Kumar for accused Ramji Lal and third vakalatnama dated 06.02.2018 is of counsel Mr. Amrender Kumar for accused Ramji Lal and Rani Devi @ Ram Pyari. None of these three vakalatnamas bear the signature of accused Vicky, who is appellant before this court which means that he was not represented through any counsel before the trial court nor any counsel on his behalf was present when his plea of guilt was recorded.
11. Perusal of the order dated 06.02.2018 further shows that the trial court had informed the accused regarding the consequences of his admitting guilt by stating that accused may be sentenced under the applicable law on the basis of his plea of guilt. But, after making CA No.110/18 Page no.6/9 Vicky @ Devender vs. State the accused aware about the consequences of his admission of guilt, the trial court did not record its satisfaction about the voluntariness of said plea. In the very next sentence of said order, trial court noted that "accused stated that complainant be also called and these charges be put to her as well. He was explained that the complaint has been made by the complainant and the criminal proceedings were put into motion by her and that she would appear at the stage of evidence. Having admitted his guilt to said charges, the accused was convicted for the offence u/s 323/354/354B/354D/451/506/509 IPC."
12. Careful perusal of order dated 06.02.2018 further shows that an objection was raised by the advocate who was present before the trial court for the accused persons on said date, to the effect that convict has made said statement under pressure. But, without dealing with said objection on that date, Ld. trial court adjourned the case for arguments on sentence for 07.02.2018. On 07.02.2018, part arguments were heard on the sentence and case was again adjourned for 08.02.2018. On 08.02.2018, the arguments on sentence were heard and case was adjourned for order on sentence. The order on sentence was however, passed by trial court vide impugned order dated 13.02.2018.
13. Careful perusal of order dated 08.02.2018 shows that on said date, Ld. Trial court asked the convict/appellant as to the reasons of committing said offences to which, he stated that he wanted to save the complainant from her parents because complainant was in love with him but her parents were having objections against said relationship and used to beat her for that reason. He further stated that on the relevant date, he was on his way in his gali where the brother of complainant was standing outside his gate and the accused CA No.110/18 Page no.7/9 Vicky @ Devender vs. State climbed one or two steps on his staircase outside the house and did not enter into their house. Convict further stated that there was normal Hathapai between him and complainant's brother.
14. The aforementioned exercise undertaken by the trial court on 08.02.2018, should have been undertaken before recording conviction in the matter because from the aforementioned answers of the convict, it appears that he was under some misconception of facts at the time when his plea of guilt was recorded. From said statement of convict, it appears that he never entered into the house of the complainant nor he manhandled or misbehaved with the complainant. How a person, who wanted to save the girl from the beatings of her parents, would assault her or disrobe her, is not understandable.
15. During the course of arguments, the counsel for complainant had also appeared in the court and it was informed that after the conviction of accused in the instant case, the accused/convict and the complainant had married in Arya Smaj Mandir though, the counsel for the complainant challenged the validity of said marriage saying that it was against the will and wish of the complainant but, the factum of marriage in Arya Smaj Mandir between the convict and the complainant subsequent to recording of conviction in this case has not been disputed even by the complainant.
16. Considering the above facts and circumstances of the case, it appears that the plea of guilt was not voluntary as the same was made by the appellant on account of lack of understanding about the nature of the offences alleged against him, lack of knowledge about the consequences of his admission of guilt and further on CA No.110/18 Page no.8/9 Vicky @ Devender vs. State account of lack of proper advise and legal representation.
17. In the light of the judgments referred above, I am of the considered view that the present appeal against the conviction is well maintainable because the plea of guilt, on which the conviction was recorded, itself was vitiated on account of the reasons cited above and hence, the trial court was not justified in recording conviction on the plea of guilt.
18. In view of above discussion, I am of the considered opinion that both the impugned orders dated 06.02.2018 & 13.02.2018 suffer from gross illegality and infirmity and same are liable to be set aside. Accordingly, appeal stands allowed and the impugned orders of conviction and sentence are set aside. Trial court is directed to frame the charge afresh and proceed in the matter as per law.
19. Copy of this judgment alongwith TCR be sent back to the concerned court. Appeal file be consigned to record room.
Announced in open Court on 22.01.2019 (Sunena Sharma) Additional Sessions Judge-03 (South) Saket Courts/New Delhi/22.01.2019 John Digitally signed by John Doe Date:
Doe 2019.01.24
13:27:24 +0530
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Vicky @ Devender vs. State