Delhi District Court
Subhash Chand vs The State The N.C.T.Of Delhi on 4 September, 2018
IN THE COURT OF ADDITIONAL SESSIONS JUDGE03(NE),
KARKARDOOMA COURTS, DELHI.
PRESIDED BY: LALIT KUMAR, DHJS
CA No. 17/18
1. Subhash Chand
s/o Sh. Late Ram Karan Sharma
2. Rakesh @ Rajesh
S/o Subhash Chand
Both R/o H.NO. 1, Tunda Nagar
Joharipur, Delhi110094 Appellants
Versus
The State the N.C.T.of Delhi
Through its Chief Secretary,
At Delhi Secretariat, New Delhi Respondent
Date of assignment : 08.06.2018 Date of Arguments : 29.08.2018 Date of Pronouncement : 04.09.2018 Judgment : 1 By the present appeal, the appellant challenges the impugned
judgment dt. 19.05.2018 convicting him for offences u/s 323/341/506/34 IPC in FIR no.867/2005 registered at PS Gokalpuri and the order on sentence dated 04.06.2018 directing him to undergo release on probation on CA no. 17/18 Subhash Chand Vs State 1/10 furnishing personal bond in the sum of Rs. 20,000/ with one surety each in like amount with the condition that they will maintain good behaviour and will not commit offence of similar nature upto a period of two years u/s 5 of Probation of Offenders Act, both the accused were directed to pay a sum of Rs. 15,000/ each to the complainant and injured to be paid within 30 days. In default to pay compensation, SI (simple imprisonment) for a period of three months.
2. The brief facts, which are relevant for deciding the present appeal are that as per the version of complainant, on 26.12.15, at about 10 o'clock when he had gone to one Sher Singh Mason for some work. Then the accused Subhash called him, when he came near him, accused Subhash told him that the complainant instigates the other persons against him. Upon which complainant replied that he did not say anything to anyone, but the accused started abusing the complainant and he also started wrongfully restraining the complainant and gave beatings. Appellant no. 1 Subhash also called his son appellant no. 2 Rakesh, who also came and started abusing and beating the complainant. The complainant made noise. Then both the accused persons fled away from the spot and threatened that if any complaint was made against them, they will kill him. Upon this complaint, the eFIR No.867/05 u/s 341/323/506/34 IPC was registered at PS Gokalpuri against the aforesaid appellants.
3. After completion of investigation, charge sheet was filed against both the appellants u/s 341/323/506/34 IPC. On 21.08.2006, cognizance of CA no. 17/18 Subhash Chand Vs State 2/10 offences were taken by Ld. Trial Court. Thereafter, the requirement of the provision of Section 207 Cr.P.C. was completed.
4. On 29.10.2007, charge against the above said appellants were framed to which they claimed not guilty and claimed trial.
5. Notice of the appeal was formally accepted by the State through Ld. APP and the Trial Court Record was called for.
6. I have heard the submissions made by Sh. Ashok Kumar Arya, Ld.Counsel for appellants and Sh.Zenul Abedeen, Ld.Addl.PP for the State. I have also perused the record carefully.
7. It is the settled proposition of law that ordinarily, sitting in appeal does not reappreciate the evidence that already appreciated in detail by the Ld.Trial Court for the reason that Trial Court has also an opportunity of observing the conduct and demeanor of the witness. Of course, the same is provided the Trial Court has not committed an error of such an impact that the same was resulted in miscarriage of justice. Reference may be held in judgment of Apex Court in Hussain and Another Vs Union of India and Ashu Vs State of Rajasthan which is dated 19.03.2017 passed in Crl.App. no.509/17.
8. In order to substantiate its case, prosecution examined eight witnesses. All the incriminating evidence was put to the appellant/accused CA no. 17/18 Subhash Chand Vs State 3/10 persons while recording their statement u/s 313 Cr.P.C. Their case is one of denial simplicitor by stating that they have been falsely implicated in this case as the appellant no. 1/accused had got constructed one temple near house and there was dispute on installation of statue in the same with the complainant as the complainant wanted to install statue of Dr. Ambedkar and the appellant/accused wanted to install statue of Lord Hanuman. No defence evidence was led by the appellant. After minutely going through the testimony of witnesses, vide impugned order, the appellants were held guilty for offence u/s 323/341/506/34 IPC and sentenced as stated above.
9. Feeling aggrieved by the impugned order, the present appeal has been preferred by the appellants/accused.
10. It is submitted by Ld. Counsel for appellant Sh. Ashok Kumar Arya that the Ld. Trial Court has passed the impugned judgment and conviction on the basis of surmises and conjectures and in mechanical manner without any reasoned order and the same is liable to be set aside. None of the prosecution witnesses supported the case of prosecution. It is further argued that the Ld.Trial Court has not judicially appreciated the entire evidence. The Ld.Trial Court has failed to appreciate the MLC of the complainant as there is no corroborated evidence of causing injury by the appellants. No public person has been cited as witness by the prosecution. It is further argued that there was no recovery of alleged danda and kada.
11. It is further argued that at the time of sentencing the appellants, the CA no. 17/18 Subhash Chand Vs State 4/10 Ld. Trial Court has not considered the age of appellant no. 1 i.e. 58 years and financial capacity of the appellants. It is further argued that trial court has not considered that appellant no. 2 who is son of appellant no. 1 is unmarried and unemployed and therefore, is unable to pay the compensation amount Rs. 15,000/. It is further argued that Ld. Trial Court has not considered the mitigating circumstances at the time of passing sentence against the appellant.
12. Rebutting the submissions, Ld. APP for the State has submitted that there is no infirmity in the impugned order. The prosecution case stands established from the testimony of the witnesses which found due corroboration from medical evidence and the Ld. Trial Court has duly appreciated the evidence led on record by prosecution. It is, therefore, prayed that this appeal is liable to be dismissed.
13. I have given my considerable thought and respective submissions made by the counsel for the parties and have perused the Trial Court Record.
14. In order to substantiate the aforesaid case of the prosecution, the material witness PW1 Sh. Lakshi Chand, who unfolded that on 26.12.2005, on that day, he had gone to see Sher Singh Medical Store near Ambedkar Gate, but he did not meet. As he was returning, appellant no. 1 Subhash called him and asked that why the complainant exciting the people against the appellant no. 1, on which PW1 replied that he had not received CA no. 17/18 Subhash Chand Vs State 5/10 anything but the appellant stopped the PW1 and started abusing, both of them caught hold of the son of the appellant no. 1 namely Rakesh, appellant no. 2 who is also near him and caught hold of PW1 and started beating him. Appellant no. 1 took a danda and hit on his face and different parts of body and the appellant no. 2 Rajesh hit him with his wearing kada on the head of complainant. Blood started oozing from the mouth of complainant, PW1 shouted and raised alarm. Accused persons also threatened to kill complainant, in case he report the matter to the police. Somehow the complainant PW1 managed to escape from the clutches of the appellant. After that he called the police and accused were arrested and his statement was recorded vide Ex. PW1/A.
15. The appellants have assailed the order of Ld. Trial Court on the following material grounds : (I) No public/independent witness has been examined by the prosecution in support of its case.
(II) The MLC Ex. PW8/A has wrongly been relied upon by the Trial Court without corroboration evidence of causing injury to the complainant. (III) The Trial Court has failed to appreciate the fact. There was no recovery of alleged Danda and Kada.
16. As regards the submissions that no public/independent witness has been examined by the complainant. From the perusal of testimony of PW1, complainant, it has been revealed that PW1 has categorically stated that at the time of incident no public person was on the spot and no other person CA no. 17/18 Subhash Chand Vs State 6/10 witnessed the incident except him. Perusal of testimony further reveals that suggestion on behalf of appellants was put to the appellant that the complainant alongwith accused persons gave beatings by the cow. However, this suggestion has been denied by the complainant PW1. Moreover, it is even not the case of the appellants that some other persons were present at the spot as no witness has been examined by them in their defence to substantiate that the public persons were available at the spot at the time of alleged incident. It is well settled proposition of law that in a criminal trial, even a solitary witness can form the basis of conviction. Law does not postulate or require that a particular number of eye witnesses should depose before conviction can be sustained. It is not the number but the credibility which can be attached to a statement that matters. Conviction is possible on the basis of statement made by a sole eye witness where his presence at the spot is established and proved. The incident in the case at hand has been taken place at medical store near Ambedkar Gate and his presence at the spot is established. Moreover, his testimony find corroboration on material aspect from the other evidence.
17. As regards to the submissions that the MLC Ex. PW8/A has wrongly been relied upon by the Trial Court without corroboration evidence of causing injury to the complainant. The perusal of testimony of PW8 Dr. Devender Kumar who proved MLC Ex. PW8/A has deposed tenderness was present, breathlessness due to pain. During the cross examination of PW8, he has admitted that cutting on the word absent after tenderness and in his voluntary deposition, he has deposed however, same is signed. It may CA no. 17/18 Subhash Chand Vs State 7/10 be seen that no further question was asked from the side of appellant/accused to PW8. The cutting is duly signed by the doctor concerned. The said cutting does not itself invalidate the MLC, particularly when the testimony of PW1 has been substantiated by the medical examination of PW1. Further perusal of record reveals that the complainant PW1 has remained consistent on the allegations of causing injury to him which has been substantiated by PW8/A. Therefore, the testimony of PW1 complainant inspire confidence and being a trustworthy which does not suffer from the major infirmity.
18. As regard to the submission that the Trial Court has failed to appreciate the fact that there was no recovery of alleged Danda and Kada. Perusal of testimony of PW1 reveals that on the aspect of causing injury to complainant PW1 by danda, neither any question nor any suggestion was given to PW1 as to whether the alleged injury has been caused to the complainant by the alleged danda and kada used by the appellants/accused. Moreover, recovery of danda or kada is not material when testimony of complainant PW1 has been corroborated by the MLC of complainant/injured Ex. PW1/8 which proved that the injury was sustained by complainant PW1 in the alleged offence.
19. Apart from the aforesaid, appellant no.2 had taken a plea of alibi during the cross examination of complainant/PW1. Perusal of cross examination of PW1 reveals that the accused has suggested that he was not present at the spot at the time of alleged incident as he had gone to attend CA no. 17/18 Subhash Chand Vs State 8/10 his chemistry exam which suggest that appellant no. 2 had tried to take the plea of alibi but to substantiate this, no witness has been examined by the appellant even no document on record has been filed to the effect that he attended the chemistry exam which itself falsify the plea of alibi.
20. Besides the abovesaid defence taken by the appellant/accused persons that they have been falsely implicated in this case as the appellant no. 1/accused had got constructed one temple near house and there was dispute on installation of statue in the same with the complainant as the complainant wanted to install statue of Dr. Ambedkar and the appellant/accused wanted to install statue of Lord Hanuman. But, the appellants have not put their aforesaid defence to the PW1 during his cross examination, even neither any question has been put on this aspect nor any suggestion has been given on this aspect, therefore, the aforesaid stand of the appellants stands falsified.
21. At this stage, the Ld. Counsel for the appellant/accused submitted that the appellant is aged about 58 years and is suffering from heart ailment. He further argued that appellant no. 2 Rakesh is a young person of 29 years of age and he is unmarried and there is no conviction or involvement in any other case except the present one. It is further submitted that the appellant/accused have been facing trial for the last 13 years, therefore, requested for a lenient view in the quantum of sentence i.e. period of probation as well as the amount of compensation. It is submitted by Ld. Counsel for the appellant/accused that the period of probation be reduced CA no. 17/18 Subhash Chand Vs State 9/10 and the compensation amount may also be reduced. It is further submitted by Ld.Counsel for appellant/accused that the amount of compensation may be deposited either in PM Relief Funds or CM Relief Funds.
22. Keeping in view the above discussions , there is no merit in the appeal, hence the impugned judgment of the Ld.Trial Court dt.19.05.2018 is upheld, however, considering the submissions, it would be expedient and in the interest of justice that quantum of sentence be modified, accordingly period of probation is reduced from two years to six months and compensation of Rs.15,000/ each is reduced to Rs.7500/each and instead of paying compensation to victim, 7,500/ each to be deposited in CM Kerala Flood Relief Fund in default SI for three months. Accordingly, the appeal of the appellant with respect to impugned judgment dt.19.05.2018 is dismissed, whereas the appeal of the appellant with respect to order on sentence dt.04.06.2018 is partly allowed with some modifications. Copy of judgment be supplied to appellant free of cost. TCR be sent back to the concerned court alongwith copy of judgment.
Appeal file be consigned to Record Room.
Digitally
signed by
LALIT LALIT KUMAR
Date:
KUMAR 2018.09.04
16:33:20
+0530
ANNOUNCED IN OPEN COURT (LALIT KUMAR)
TODAY ON 04.09.2018 ADDL. SESSIONS JUDGE03
(NE)/KKD COURTS, DELHI.
CA no. 17/18 Subhash Chand Vs State 10/10