Delhi District Court
State vs . Karan Singh And Anr. on 29 January, 2010
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IN THE COURT OF SHRI AJAY KUHAR
ADDL. SESSIONS JUDGE: SOUTH EAST-02
NEW DELHI
IN RE: Sessions Case No. 38/09
FIR No. 494/08
PS Sangam Vihar
U/s 448/323 IPC
State Vs. Karan Singh and Anr.
ORDER ON SENTENCE
Arguments on the point of sentence adduced by Ld. Counsel
for the convicts as well as Ld. Addl. PP for state have been heard.
2. Ld Defence Counsel for the convicts submit that the accused
Karan Singh is a senior citizen and he has no previous criminal record. It
is further submitted that he has remained in custody for nine days
earlier. As regard the convict Gajender, it is submitted that he has
remained in custody for about three and a half months and has no
previous criminal record. At present, he is working in a garment factory
and he has the responsibility to look after the family which consists of his
wife and a son aged about one month. It is also submitted that he has
two young sisters aged about 18 years and 15 years of age who are
unmarried and he is the only person in the family who can provide the
financial support.
3. Ld Addl. P.P for the state, on the other hand, has argued that
convicts are held guilty for the offence under Sec. 448/323 IPC which
provides punishment up to one years and convicts should be given
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appropriate sentence.
4. I have considered the submissions of both the Counsels and I
appreciate the submission of the Ld Prosecutor that he did not
mechanically ask for highest punishment rather considered the
circumstances of the convicts and made submission.
5. In the case of State Vs. Raj Kumar Khandelwal 2009 IV AD
(Delhi) 691 it was observed that "sentencing is a crucial strategy of
criminal law in achieving social defence and re-socialization of the
offender. Sentencing is a facet of social justice". The most difficult
part in a criminal trial is awarding of a sentence. The Court has to
consider the nature and gravity of the offence and the background of the
convict and many other factors.
6. While awarding the sentence the consideration of the
background of the convict is very material and the manner in which the
offence was committed, the person against whom the offence is
committed, the mental condition of the convict, the age of the offender,
probabilities of the offender's rehabilitation and reformation in the
society, lack of previous criminal record are some of the mitigating
circumstances which are to be considered while awarding sentence.
Sometime, the offence is not committed with any criminal intent but out
of fit of anger. It is the duty of the Court to make a person realize his
mistake that he has breeched the law of the state. In the present case,
the convicts have no previous criminal record. The manner in which the
offence has been committed shows that they had no criminal intent. The
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convicts have remained in custody for some time when they were
arrested in this case. The convict Karan Singh has remained in custody
for about nine days and convict Gajender has remained in custody for
about three and a half months.
7. Thus, considering the entire facts and circumstances of the
case, I am of the view that to keep their conduct in future under control
and inconsonance with the societal norms, it desirable that they may be
given benefit of probation. Therefore, I am of the view that the convicts
be given benefit of Section 4 (1) of the Probation of Offenders Act, 1958.
Thus instead of sentencing them to any punishment I consider it
expedient to release them on Probation of good conduct for a period of
six months on their furnishing a bond in the sum of Rs 10,000/- with
one surety in the like amount with the direction to appear and receive
sentence when called upon during this period and in the meantime to
keep peace and be of good behaviour.
8. The convicts are also directed to pay compensation of Rs.
2500/- each to the injured Vijay Singh S/o Narbat Singh under Sec. 357
(3) Cr.PC. The compensation amount be deposited in the Court and
notice be issued to the injured Vijay Singh to receive the same.
9. Copy of judgment and sentence be given to the convicts. File be
consigned to record room.
Announced in open court ( AJAY KUMAR KUHAR )
Dated: 30.01.2010 Addl. Sessions Judge:South East-02
New Delhi
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IN THE COURT OF SHRI AJAY KUHAR
ADDL. SESSIONS JUDGE: SOUTH EAST-02
NEW DELHI
IN RE: Sessions Case No. 38/09
FIR No. 494/08
PS Sangam Vihar
U/s 308/451/34 IPC
State Vs. 1). Karan Singh
S/o Sh. Surat Ram singh,
R/o GD-42, Pul Prahlad Pur,
New Delhi
2). Gajender
S/o Sh. Karan Singh,
R/o GD-42, Pul Prahlad Pur,
New Delhi
Date of institution : 12.01.2009
Date when the arguments
were heard : 25.01.2010
Date of judgment : 29.01.2010
________________________________________________________________
JUDGMENT
Accused have been put to trial for the offence under Sec. 451 read with Sec. 34 IPC and Sec. 308 read with Sec. 34 IPC on the allegations that on 07.09.08, at about 8.05 pm, they had trespassed into the house bearing no. GD-42, Pul Prahlad Pur where they had a quarrel with the complainant namely Smt. Sunita wife of Sh. Vijay Singh. The cause of this quarrel was the marriage of the accused Gajender with
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Radha, sister of the complainant Sunita. The injured Vijay Singh, husband of the complainant, objected when Gajender was abusing Sunita and, thereafter, the accused Karan Singh and Gajender caught hold Vijay and accused Gajender picked up a brick and hit Vijay on his head with the brick many times. The complainant sought the assistance of the landlord Jai Dayal and he called the police by calling on 100 number. Thereafter, PCR Van came at the spot and the injured was taken to the Trauma Center, AIIMS Hospital but before the PCR van could come, the accused had run away from the spot.
2. The intimation with regard to this incident was received in the Police Post, Pul Prahlad Pur vide DD no. 20 and HC Ram Singh went to the spot where he did not find any eye-witness and was informed that injured had been taken to the Trauma Center, AIIMS Hospital by PCR Van. Thereafter, he went to Trauma Center, AIIMS Hospital, however, the injured Vijay Singh was not found fit for statement. So, he came to the police post. On next day, he again went to the Trauma Center, AIIMS Hospital where he met with the complainant Sunita and recorded her statement. Thereafter, he recommended the registration of the FIR under Sec. 452/323/34 IPC. During the investigation, the MLC and the report thereon was obtained and Sec. 308 IPC was invoked because there was a opinion by the Doctor on the MLC that 'injuries was dangerous in nature'. After completing the investigation, charge sheet was filed in the Court.
3. Accused persons were charged for the offence punishable under Sec. 451 read with Sec. 34 IPC and Sec. 308 read with Sec. 34 IPC on
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16.03.2009 to which they pleaded not guilty and claimed trial.
EVIDENCE
4. To prove its case, prosecution has examined as many as 7 witnesses in this case.
4.1. PW 1 Smt. Sunita Devi is the complainant in this case, who proved her complaint Ex. PW 1/A. She deposed that on 07.09.08 she along with her family was residing at H. No. GD-42, Pul Prahlad Pur, New Delhi. The accused Karan Singh and Gajender were also residing in the same house but in separate rooms. She further deposed that at about 8.00 she was present in her house with her husband when accused came and started abusing her on which her husband Vijay Singh objected and in the meantime accused Karan Singh and Gajender came inside the house and accused Karan Singh caught hold Vijay Singh from back side and accused Gajender hit her husband on head with the brick 4/5 times. Vijay Singh, therefore, became unconscious. She further deposed that she immediately ran to call the landlord who informed the police. PCR Van, thereafter, came and her husband was taken to the hospital along with her. She further deposed that she left the hospital when her nephew and his wife had come and she herself went to her village Samalkha. She further deposed that on next day her statement was recorded vide Ex. PW 1/A. 4.2. PW 2 Vijay Singh is the injured in this case. He supported the statement which is given by the complainant Sunita.
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4.3. PW 3 is SI Abhay Singh who was posted on the PCR and had reached the spot and he had taken the injured to the Trauma Center, AIIMS Hospital.
4.4. PW 4 is Dr. Shahid Anjum Siddique, who has proved the MLC of the injured Vijay as Ex. PW 4/B which was prepared by Dr. Dhananjay.
4.5. PW 5 is Ct. Sunil Rathi, who accompanied HC Ram Singh (initial Investigating Officer) of the case. He deposed that accused Gajender and Karan were arrested in his presence vide memos Ex. PW 5/A and 5/C respectively.
4.6. PW 6 is WASI Nirmala who was the duty officer and registered the FIR, copy of same is Ex. PW 6/A. 4.7. PW 7 HC Ram Singh is the part Investigating Officer of this case. He deposed that on 07.09.08 he was on emergency duty and on receipt of the DD no. 20, he along with Ct. Sunil Singh reached at the place of occurrence where he came to know that injured had been moved to the hospital. He did not meet any eye-witness at the spot. He further deposed that he also received the DD no. 24 regarding the admission of the injured in Trauma Center, AIIMS Hospital. Thereafter, he went to Trauma Center, AIIMS Hospital, however, injured was not found fit for statement as was opined by the Doctor on Ex. PW 4/B. He deposed that on next date he again went to Trauma Center, AIIMS Hospital and moved an application for statement of the injured but Doctor again declared the injured unfit for statement vide his
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endorsement Ex. PW 7/D. He further deposed that he recorded the statement of the complainant Sunita vide Ex. PW 1/A and got the case registered through Ct Sunil Singh. He further deposed that Doctor had opined the nature of injury as 'dangerous', therefore, Sec.308 was invoked and investigation was transfered to ASI Satbir Singh. It is noted that ASI Satbir was not examined by the prosecution in this case.
5. The accused were confronted with the evidence against them on record when examined under Sec. 313 Cr.PC. They have taken plea of simple denial of the evidence, however, no reason whatsoever have been assigned by them as to why the complainant and the injured would name them falsely in this case. However, this silence of the accused may not be taken as a proof by the prosecution as the prosecution has to stand on its own legs. Therefore, before considering the statement under Sec. 313 Cr.PC of the accused persons, I would prefer to go through the evidence on which the prosecution has relied.
6. The statement of PW 1 is supporting the prosecution case up to the hilt. In the cross-examination of this witness, nothing has come out which could even show any motive to falsely implicate the accused persons in this case by the complainant. It is a fact which has been proved on record that the complainant and the accused persons are residing in the same house although in different rooms. The statement of the complainant is duly supported and corroborated by PW 2 Vijay Singh who is injured in this case. He deposed that accused Gajender was abusing his wife at about 8.00 pm and when he had questioned him about this, he did not give satisfactory reply. In the meantime, accused
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Karan Singh along with accused Gajender caught him from the back side and accused Gajender gave him brick blows on his head. He also stated that accused Karan Singh had also given him beating with fist and kick blows and then he became unconscious. He further stated that the cause of between accused Gajender and his wife, was the marriage of her cousin sister with the accused Gajender. In the cross-examination of this witness, nothing could come on record which could suggest that injured harbored any ill-will against the accused persons to implicate them falsely in this case. On this stage, I would like to say that any previous enmity or ill-will can be cause for implicating falsely of a person in a case but it is not the case here that there was any such serious enmity between the parties or a strong ill-will. The fact that injured Vijay Singh has been hit on the head has been proved vide MLC Ex. PW 4/B. It is unbelievable that a person who has been beaten and caused injuries by a person would name somebody else as the assailant and save and conceal the real assailant. Even if a concession is given to the accused that some ill-will between the complainant party and the accused party over the marriage of accused Gajender with complainant cousin sister could be the cause for implicating the accused in a false case but one cannot digest this fact that when the injured has been beaten severely with a brick on his head by a person, he would conceal this assailant from the eyes of law and name somebody else as the assailant. When a person has hit the injured Vijay Singh with a brick, his wife or he himself cannot have any soft feeling or any attachment to him to the extent that they would not name him as the assailant and implicate some other innocent person falsely in the incident. Moreover, in the statement under Sec. 313 Cr.PC, the accused have not come out
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with any defence except that of denial of the incident. They have rather kept silent as to why they have been implicated falsely in this case. When a specific question was asked as to why witness have deposed against them, the accused said that they cannot say why the witness have deposed against them.
7. This silence of the accused although is not a proof of their culpability but it gives strength to the prosecution case which is supported by the cogent and corroborative evidence of PW 1 Smt. Sunita and PW 2 Vijay Singh. Therefore, the prosecution version that accused had trespassed the house of the complainant and caused injury to Vijay Singh stands proved beyond reasonable doubt.
8. Now, the question arise as to what offence has been committed by the accused? The position of law is very well settled that the nature of injury by itself is not a determining factor for the applicability of Sec. 308 IPC. Sec. 308 IPC reads as under:-
"Sec. 308 IPC:- Attempt to commit culpable homicide - whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment or either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years,
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or with fine, or with both".
9. The necessary ingredients which the prosecution has to prove to attract Sec. 308 IPC would be firstly an act by the accused; secondly commission of the act with the intention or knowledge that if he caused death by the said act he would be guilty of culpable homicide not amounting to murder or commission of the act in such circumstances that if death is caused, the accused would be guilty for culpable homicide not amounting to murder. The nature of injuries which have been caused although not the deciding factor but of course they can be an indicator as to the knowledge of an accused about the consequences of his act.
10. In the present case, the nature of injuries which have been opined as 'dangerous' have not been proved by the concerned Doctor.
The MLC Ex. PW 4/B was prepared by Dr. Dhananjay. He did not appear in the witness box and the MLC prepared by him was proved by PW 4 Dr. Shahid Anjum Siddique. The opinion with regard to nature of injuries which are shows as 'dangerous caused by blunt force' is not authenticated by any Doctor. Even PW 4 stated that the endorsement with regard to nature of injuries is not in the handwriting of Dr. Dhananjay. Therefore, the nature of injuries cannot be considered as 'dangerous' as there is no evidence on record as to on what basis this opinion has been given and who has given this opinion on the MLC. Even otherwise the description of the injuries show CLW over the occipital region which is 2 X 2 cm and CLW over left side face 1 X 0.5 cm. These injuries would show that there was only one injury on the head which is contrary to the statement of PW 1 & PW 2. PW 1 stated
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that the accused Gajender had hit the injured Vijay on head with a brick 4 / 5 times and the similar statement was given by PW 2 Vijay Singh.
The injuries in the MLC suggest only one blow on the head. Therefore, the evidence is not sufficient to hold that the injuries were 'dangerous' in nature. In the absence of the statement of the concerned Doctor who has given the opinion regarding the nature of injury, it will be considered as 'simple injury'.
11. The nature of injury, the weapon of offence used, the number of blows and the part of the body on which injury was caused, are some of the consideration to decide whether Sec. 308 IPC can be invoked or not. Section 308 IPC, as already quoted above, would apply in the circumstances when a person does any act with the intention or the knowledge and under such circumstances that if he by his act cause death he would be guilty of culpable homicide not amounting to murder. Thus intention or the knowledge of the assailants/accused is one aspect to ascertain his liability for the offence under section 308 IPC. The "circumstances" in which the act is done is also a important aspect in such cases. In the present case, I am of the view that Sec. 308 IPC would not be attracted because the required 'intention or knowledge' is not found present in the given facts and circumstances. As per the prosecution case, there was exchange of hot words between the accused and the complainant and the injured Vijay Singh, husband of the complainant, objected this, the quarrel took place suddenly between the accused and the injured and in the heat of passion and on the spur of the moment accused hit injured Vijay Singh with a brick on his head. Moreover, as I observed above, the nature of injury as 'dangerous' has
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not been proved in this case. As per the MLC Ex. PW 4/B, there is only mentioning of one injury on head which is contrary to the statement of PW 1 and PW 2. So, in these circumstances, one cannot invoke Sec. 308 IPC because that require the specific 'intention and knowledge' which is found missing in this case.
12. Now, I come to the question whether Sec. 451 IPC can be invoked in this case? Sec. 451 IPC speaks about the criminal house trespass committed by a person in order to commit offence punishable with imprisonment. So, the emphasis in Sec. 451 IPC is that the house- trespass must be in order to committing of any offence punishable with imprisonment. Therefore, there must be intent of the offender to commit any offence which is punishable with imprisonment and, thereafter, to facilitate the commission of that offence, he must commit the house-trespass. However, in the given facts and circumstances of the case, I am of the view that this intention to commit the offence punishable with imprisonment is missing in this case. It is on the record and in the evidence that before the accused came into the room of the complainant Sunita Devi, accused Gajender was abusing her. When it was objected by Vijay Singh (injured), both accused came in the room of complainant Sunita Devi and the injury was caused to Vijay Singh.
13. As I have already observed that the incident in which the injury has been caused to Vijay Singh had taken place on the spur of the moment so the act of both the accused in entering the room of the complainant Sunita Devi can at best to be considered an act to intimidate the complainant and her husband. The intention to cause injury at that
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moment cannot be gathered from the circumstances. Therefore, I am of the considered view that the appropriate provision which can be invoked in the present case would be Sec. 448 which reads as under:-
"Sec. 448. Punishment for house-trespass -
whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."
14. This section provides punishment for house-trespass which is defined in Sec. 442 IPC. The ingredients of a criminal trespass as defined in Sec. 441 IPC and house-trespass as defined in Sec. 442 IPC are the same. The only distinction is that when criminal trespass is into a human dwelling it becomes house-trespass as defined in Sec. 442 IPC. Sec. 441 and 442 IPC read as under:-
" Sec. 441. Criminal trespass - whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit " criminal trespass".
"Sec. 442. House-trespass - whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the
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custody of property, is said to commit house-trespass."
15. Considering the necessary ingredients of offence of house- trespass like entering into or upon property in possession of another with intent to commit an offence or to intimidate, insult or annoy the person in possession of property, I am of the view that in the given facts and circumstances and on the basis of evidence on record, the prosecution has successfully proved the offence under Sec. 448 IPC against the accused persons which provide punishment for the offence under Sec. 442 IPC.
16. Therefore, in view of the evidence which has come on record, I am of the considered view the prosecution has successfully proved its case against the accused persons for the offence punishable under Sec. 448/323 IPC. Hence, accused are held guilty for the offence punishable under Sec. 448/323 IPC read with Sec. 34 IPC and convicted accordingly.
Announced in open court ( AJAY KUMAR KUHAR )
Dated: 29.01.2010 Addl. Sessions Judge:South East-02
New Delhi
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IN THE COURT OF SHRI AJAY KUHAR
ADDL. SESSIONS JUDGE: SOUTH EAST-02
NEW DELHI
IN RE: Sessions Case No. 38/09
FIR No. 494/08
PS Sangam Vihar
U/s 448/323 IPC
State Vs. Karan Singh and Anr.
ORDER ON SENTENCE
Arguments on the point of sentence adduced by Ld. Counsel for the convicts as well as Ld. Addl. PP for state have been heard.
2. Ld Defence Counsel for the convicts submit that the accused Karan Singh is a senior citizen and he has no previous criminal record. It is further submitted that he has remained in custody for nine days earlier. As regard the convict Gajender, it is submitted that he has remained in custody for about three and a half months and has no previous criminal record. At present, he is working in a garment factory and he has the responsibility to look after the family which consists of his wife and a son aged about one month. It is also submitted that he has two young sisters aged about 18 years and 15 years of age who are unmarried and he is the only person in the family who can provide the financial support.
3. Ld Addl. P.P for the state, on the other hand, has argued that convicts are held guilty for the offence under Sec. 448/323 IPC which provides punishment up to one years and convicts should be given
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appropriate sentence.
4. I have considered the submissions of both the Counsels and I appreciate the submission of the Ld Prosecutor that he did not mechanically ask for highest punishment rather considered the circumstances of the convicts and made submission.
5. In the case of State Vs. Raj Kumar Khandelwal 2009 IV AD (Delhi) 691 it was observed that "sentencing is a crucial strategy of criminal law in achieving social defence and re-socialization of the offender. Sentencing is a facet of social justice". The most difficult part in a criminal trial is awarding of a sentence. The Court has to consider the nature and gravity of the offence and the background of the convict and many other factors.
6. While awarding the sentence the consideration of the background of the convict is very material and the manner in which the offence was committed, the person against whom the offence is committed, the mental condition of the convict, the age of the offender, probabilities of the offender's rehabilitation and reformation in the society, lack of previous criminal record are some of the mitigating circumstances which are to be considered while awarding sentence. Sometime, the offence is not committed with any criminal intent but out of fit of anger. It is the duty of the Court to make a person realize his mistake that he has breeched the law of the state. In the present case, the convicts have no previous criminal record. The manner in which the offence has been committed shows that they had no criminal intent. The
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convicts have remained in custody for some time when they were arrested in this case. The convict Karan Singh has remained in custody for about nine days and convict Gajender has remained in custody for about three and a half months.
7. Thus, considering the entire facts and circumstances of the case, I am of the view that to keep their conduct in future under control and inconsonance with the societal norms, it desirable that they may be given benefit of probation. Therefore, I am of the view that the convicts be given benefit of Section 4 (1) of the Probation of Offenders Act, 1958. Thus instead of sentencing them to any punishment I consider it expedient to release them on Probation of good conduct for a period of six months on their furnishing a bond in the sum of Rs 10,000/- with one surety in the like amount with the direction to appear and receive sentence when called upon during this period and in the meantime to keep peace and be of good behaviour.
8. The convicts are also directed to pay compensation of Rs. 2500/- each to the injured Vijay Singh S/o Narbat Singh under Sec. 357 (3) Cr.PC. The compensation amount be deposited in the Court and notice be issued to the injured Vijay Singh to receive the same.
9. Copy of judgment and sentence be given to the convicts. File be consigned to record room.
Announced in open court ( AJAY KUMAR KUHAR )
Dated: 30.01.2010 Addl. Sessions Judge:South East-02
New Delhi