Delhi District Court
- vs - on 28 August, 2008
1
IN THE COURT OF SH DINESH KR. SHARMA, ADDITIONAL
SESSIONS JUDGE: DELHI.
SESSION CASE NO.74/2006
POLICE STATION: MOTI NAGAR
UNDER SECTION. 308/506/34 IPC
DATE OF INSTITUTION: 13.9.1996
DATE ON WHICH THE JUDGMENT
HAS BEEN RESERVED:- 11.8.2008
DATE ON WHICH THE JUDGMENT
HAS BEEN DELIVERED:-25.8.2008.
1.JANGI LAL BHALLA,
S/O HARI RAM
R/O B-48, KARAM PURA,NEW DELHI
2.SUNIL BHALLA S/O SH. JANGI LAL BHALLA
R/O B-48, KARAMPURA,
NEW DELHI.
-V E R S U S-
1.NARENDER SINGH S/O JOGINDER SINGH
R/O B-42, KARAMPURA, NEW DELHI
2.SMT. NEELAM W/O JAGDISH LAL
R/O B-38, KARAMPURA, NEW DELHI.
JUDGEMENT
1. Accused persons have faced trial for the offence under 2 Section 308/506/34 of IPC.
2. Briefly stated the facts are that complainant party lodged private complaint under section 323/324/307/506/34 IPC alleging that on 08.09.1996 at about 7.45 PM, the accused persons who were armed with iron rods and lathies attacked the complainants with an intention to kill them. It has been alleged that accused no. 1 Narender Singh was having an iron rod with sharp ends and he assaulted complainant no.2 from sharp side and inflicted head injury. It has further been alleged that accused no. 2 Joginder Singh (since died) was also having a lathi in his hand and he assaulted Saroj Bala, the wife of complainant no. 1. Accused no. 3 Darshana @ Neelam, maternal aunty of accused no.1 was also present there and abused the complainants in filthy language. She also threatened the complainants with definite dire consequences. Accused no. 3 was also having an iron rod and she gave a blow with that rod on the chest of complainant no.2. It has been alleged that when the complainant no. 1 came to save the complainant no.2, he suffered injuries on his left hand. The complainants submitted that as the police did not take any action, they had to file the private complaint against the accused persons.
3. The accused persons were summoned vide order dated 04.04.2001 by the learned trial court for the offence punishable under section 323/506/34 IPC. Against this order, the complainant party referred a revision. In the revision, the order dated 04.04.2001 was modified and accused persons were ordered to be summoned for the offence punishable under 3 section 323/308/506/34 IPC. Pursuant to this, the case was committed to the court of Sessions.
4. The complainants in support of their case examined themselves as PW-1 and PW-2. The complainants also examined Investigation Officer as PW-3 and Eye Witness Sanjay Kumar as PW-4. In their statements recorded under section 313 of Cr. P. C. accused persons denied all the allegations and submitted that they are innocent and have been falsely implicated. Accused Neelam denied her presence at the spot. Accused Narender Singh examined her mother Savita Kakkar as DW-1. He also examined Inspector Ramesh Chander as DW-2.
5. DW-1 deposed that she lodged a complaint at police station Moti Nagar on 02.09.1996 against the complainant Jangi Lal Bhalla and Sanjay Sharda. However, it came on record that the record dated 02.09.1996 had since been destroyed.
6. I have heard the learned counsel for the parties and perused the record carefully. Both the parties have also placed the written arguments on record.
7. PW-1 complainant Jangi Lal Bhalla deposed on oath that on 08.09.1996 at about 7.45 PM, accused Narender Singh, Neelam and Joginder Singh (since died) came in the staircase and attacked upon him. He further deposed that accused Narender Singh and Neelam were armed with iron rods in their hands. PW- 1 further stated that his wife Smt. Saroj Bhalla, his sons Anil and Sunil were also with him. PW-1 further stated that accused Narender Singh attacked with iron rod on his left hand below elbow. He further stated that accused persons also hit his son 4 Sunil, with iron rod on his head and the shirt of Sunil was smeared with the blood. PW-1 further deposed that Joginder Singh (since died) had hit Saroj Bhalla with a lathi on her abdomen. Deceased Joginder Singh also hit Anil.
8. PW-1 stated that in the meanwhile, his neighbourer Sanjay also came there and he took them to the Police Station Moti Nagar. PW-1 stated that accused persons had tried to open a gate towards the staircase at second floor despite his repeated requests to not to do so. A constable took the injured persons to DDU. It also came in the statement of PW-1 that accused persons fled away after causing injuries to the complainant party.
9. In the cross examination, complainant admitted that he did not make any complaint against the accused persons regarding the alleged unauthorised construction. He further stated that he remained in the hospital till 4 AM on 08.09.1996. It also came in the cross examination of PW-1 that Sanjay reached at the spot when he had sustained injuries. PW-1 has denied the suggestion that he had come to his house from the house of his daughter under the influence of liquor and sustained injuries due to fall from staircase.
10. PW-2 Sunil Bhalla in his testimony deposed on oath that on 08.09.1996 at around 7.45 PM, accused Joginder Singh (since died), Narender Singh and Neelam attacked his mother Saroj Bhalla and when he tried to rescue his mother, accused Narender Singh inflicted an iron rod blow with sharp end on his head, due to which he sustained injuries and blood started oozing out. PW- 2 stated that Neelam and Narender Singh were having iron rod in 5 their hands and Joginder (since died) was having a danda. PW-2 further stated that accused Neelam attacked on his head and right shoulder with iron rod. PW-2 stated that accused persons tried to open a gate of toilet at common passage and since they made a complaint to the police official,the accused persons caused injuries on their person. PW-2 further deposed that accused persons also threatened to kill them in case they made complaint against them in the police. PW-2 further deposed that accused persons ran away from the spot after the incident.
11. In the cross examination, PW-2 admitted that the cause of quarrel was due to construction of gate of toilet in common passage. It also came in the cross examination of PW-2 that they remained in the hospital for about 40-45 minutes and he went to Government hospital after 8-9 days of incident to remove his stitches. However, no record in this regard was produced.
12. PW-3 SI Azad Singh, Investigation Officer also stated on oath that on 08.09.1996 at about 7.50 PM, DD Ex. PW-3/A was assigned to him for investigation and during investigation, he recorded the statement of Jangi Lal Bhalla as Ex. PW-3/C. PW-3 also proved the statement of Savita Kakkar Ex. PW-3/D. He further proved the DD no. 24A, dated 08.09.1996 as Ex. PW-3/E. PW-3 also stated that he obtained the result on the MLC of injured persons, on which the doctor opined the injuries as simple blunt. IO could not produce the original MLC of injured persons. He stated that he handed over these MLCs during the vigilance enquiry to the concerned officer. However, the record of vigilance had also been destroyed and therefore the original MLC could not 6 be produced.
13. In the cross examination, investigation officer explained that FIR was not lodged in this case since as per MLC the injuries were opined to be simple in nature. The perusal of the MLC also indicates that weapon was opined to be blunt. In the cross examination IO admitted that Savita i.e. mother of the accused had also sustained simple injuries in this case. However, he was not able to tell that who had caused the injuries to Savita. It also came in the cross examination of IO that no weapon of offence could be recovered in this case. The complainant also examined Sh. Sanjay (PW-4). He deposed on oath that on 8.9.1996 at around 7.45 PM -8.00 PM on hearing the noise he went on the spot and saw accused Neelam and Narinder carrying iron rods and they were beating Sunil Bhalla. PW-4 stated that he saw Sunil Bhalla bleeding from head and Jangi Lal Bhalla was lying on the floor. PW-4 further stated that he took all of them to Police Station Moti Nagar. PW-4 also deposed that accused Neelam and Narender were threatening the complainant party to kill them. In the cross examination PW-4 stated that when he reached on the spot, the quarrel was still taking place. PW-4 expressed his ignorance about the fact that mother of accused namely Savita had lodged a complaint against him on 2.9.1996. Smt. Savita appeared as DW-1 and placed on record a complaint lodged by her on 2.9.1996 as Ex. DW-1/1 against PW-4 Sanjay Sharda, the complainant party. In the cross examination DW-1 stated that she is not aware about the fate of that complaint.
714. The accused persons have been charged for the offence under Section 308/506/34 IPC. The first and foremost point to be considered is whether Section 308 IPC can be attributed in the present case. Section 308 IPC reads as under:-
"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 of 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, or with fine, or with both."
15. In Velu alias Javelu Vs. State, 2004, Crl. L.J. 3783 the accused persons were convicted by the Ld. Trial court under Section 308 IPC. In appeal it was contended that occurrence was not premeditated and accused could not have intended to cause the death. Hon'ble High Court though upheld the finding of the Ld. Trial court that accused was responsible for causing injury to victim on scalp, but concluded that the accused caused the blow in in spur of the moment and there was no pre-plan or pre- meditation and the conviction of the accused was altered from Section 308 IPC to Section 324 IPC. It was inter alia held:-
"Offence punishable under Section 308 postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act 8 caused death, then he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 whereas punishment for simple hurt can be meted out under Section 323 and 324 and for grievous hurt under Section 325 and 326"
16. In the present case also I consider that there was no intention or knowledge which can be attributed upon the accused persons for an attempt to commit culpable homicide not amounting to murder. It seems to be a trivial fight between the parties. There does not seem to be any pre-plan or pre- meditation. There is no material on record to indicate that there was any intention or knowledge on the part of the accused persons to make an attempt to commit culpable homicide not amounting to murder.
17. Similarly, in Pati Ram Vs. State of U.P., 1994 Crl. L.J. 3813 it was held that mere utterance of word showing intention to kill opponent while causing of injuries cannot lead an inference of causing offence of culpable homicide, more so when none of injuries found on the persons of victim were likely to cause death. In this case it was interalia held as under:-
"Offence under Section 308 and 307 IPC are not to be inferred merely for a song. Such words even if the evidence is true as a fact are uttered by people not with a mind to commit murder but in order to 9 gather courage for themselves and to demoralise the opponents. In the event of any charge under Section 307 or 308 IPC, the requirement of would be that if death had occurred within the expectation of normal man, the offence might have been either of murder or of culpable homicide not amounting to murder"
18. In the present case by no stretch of imagination, injuries found on the person of victims could be considered to be likely to cause death. The circumstances also do not indicate any intention or on part of the accused persons that they were likely to make an attempt to cause death by that action.
19. Now coming to Section 506 IPC. Section 506 IPC provides punishment for criminal intimidation. The criminal intimidation has been defined under Section 503 IPC. Section 503 has two parts. The first part relates to the act of threatening and another with injuries to a person, reputation or property; or to the person, reputation or property of any one in whom that person is interested. The second part relates to intention to which the with which the threatening is done and it is of two categories:
(i) with the intent to cause alarm to the persons threatened;
(ii)to cause that person to do an act which he is not legally bound to do or omit to commit any act which that person is legally entitled to do as the means of avoiding the execution of such threat.10
20. In Amitabh Adhar Vs. Govt. of NCT of Delhi, 2000, Crl. L.J. 4772, it was held that mere threat given to the complainants did not fall within the definition of criminal intimidation in as much as that the complainant had nowhere stated that threats given by the petitioner caused an alarm to her. It was held that mere threat is no offence.
21. Merely utterance of certain words cannot bring an act within the purview of Section 503 IPC. In order to make Section 503 applicable, it is required that alarm must be caused to the persons to whom it is addressed. In the present case nothing emerges from the testimony of prosecution witnesses that they were alarmed in any manner or they did any act which they were not legally bound to do or they omitted certain act which they were legally entitled to do so.
22. As far as testimony of PW-4 is concerned, I consider that same is not reliable in view of the cogent and trustworthy statement made by DW-1 Savita. Smt. Savita has also placed on record a copy of the complaint made by her against PW-4 Sanjay Kumar Gupta on 2.9.1996. It seems that PW-4 in order to create confusion even gave his name as Sanjay Gupta instead of Sanjay Sharda. But in the cross examination he did not deny that some complaint was lodged against him by Smt. Savita. However, from the material available on record, it is proved beyond reasonable doubts that a quarrel took place between the parties and the accused persons in furtherance of common intention caused simple injuries to the complainant party.
23. In view of the discussion made herein above, I consider 11 that prosecution has successfully proved its case against accused persons under Section 323/34 IPC. The accused persons are convicted under Section 323/34 IPC. However the accused persons are acquitted for the offence punishable under section 308/506/34 IPC.
ANNOUNCED IN OPEN COURT (DINESH KR. SHARMA) TODAY: 25th August, 2008 ADDL. SESSIONS JUDGE: DELHI.
12IN THE COURT OF SH DINESH KR. SHARMA, ADDITIONAL SESSIONS JUDGE: DELHI.
SESSION CASE NO.74/2006POLICE STATION: MOTI NAGAR UNDER SECTION. 308/506/34 IPC DATE OF INSTITUTION: 13.9.1996 DATE ON WHICH THE JUDGMENT HAS BEEN RESERVED:- 11.8.2008 DATE ON WHICH THE JUDGMENT HAS BEEN DELIVERED:-25.8.2008.
ORDER ON SENTENCE: 28.8.2008
1.JANGI LAL BHALLA, S/O HARI RAM R/O B-48, KARAM PURA,NEW DELHI
2.SUNIL BHALLA S/O SH. JANGI LAL BHALLA R/O B-48, KARAMPURA, NEW DELHI.
-V E R S U S-
1.NARENDER SINGH S/O JOGINDER SINGH R/O B-42, KARAMPURA, NEW DELHI
2.SMT. NEELAM W/O JAGDISH LAL R/O B-38, KARAMPURA, NEW DELHI.
ORDER ON SENTENCE Accused persons have been convicted for the offence under Section 323/34 IPC.
13Report of the probation Officer was called and the same has been perused.
Ld. Counsel for the accused has prayed for benefit of probation to the accused persons on the ground that they are not the previous offenders. Accused Neelam is aged around 50 years and is a government servant. She has three unmarried children. The husband of the accused is also a government employee. It has been submitted that if the accused is sent behind the bar, it would destroy the entire family. Accused Narinder is stated to be a auto rickshaw driver. Accused is not married and is the sole earning member of his family. The father of accused Narinder has already expired. It has been submitted that if the accused is sent behind the bar, the entire family will come on the road.
Sh. S C Sharma Ld. Counsel for the complainant submits that accused Narinder is a previous convict in case FIR No. 309/97, Police Station Moti Nagar. Accused Narinder has submitted that a case was made against him but the same was finished. However, he is not aware whether he was given benefit of probation. Ld. Counsel for the convicts has shown his ignorance on about the same.
I have considered the submissions and perused the record carefully.
The accused persons have been convicted under Section 323/34 IPC. The offence under section 323/34 entails imprisonment for one year or fine of Rs.1000/- or both. The Probation of Offenders Act, 1958 was enacted for the release of offenders on probation. The object of this Act was discussed in Jugal Kishore 14 Prasad Vs. State of Bihar, AIR 1972, SC 2522 in which it was interalia held as under:
"The object of the Act is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals"
It is worthwhile to mention here that enforcement of probation excludes the applicability of provision of Section 360 and 361 of the Code of Criminal Procedure. The scope of Probation of Offenders Act is much wider. Section 4 of the Probation of Offenders Act, 1958 provides as under:-
"Section 4 - Power of Court to release certain offenders on probation of good 15 conduct- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour."
While exercising the discretion under Probation of Offenders Act, the court is required to consider . The court has to take a realistic view of the offence alongwith the impact of the same on the victim. I consider that taking into account the circumstances of the case, nature of offence, it would be expedient in the interest of justice that the accused persons instead of sentencing at once to any punishment be released on their entering into a bond with a surety of Rs. 10,000/- for the period of one year to appear and receive sentence if called upon during such period. The accused persons are directed to keep the peace, be of good behaviour during this period and if they fails to do so, they may called to receive the sentence. Before parting with, 16 I consider that the right of the complaint should also be protected. The complainant have pursued this complaint for around 12 years and they must have incurred lot of expenses in the same. In the circumstances, the accused persons are directed to pay a compensation in the sum of Rs. 5000/- each to the complainant party for the lose or injury caused to them y the commission of the offence as well as for the costs of the proceedings. Accused Neelam is a government servant. She has another 10 years of service. I consider that keeping in view the fact and circumstances of the case, the conviction shall not effect the service record of the accused.
Convict Neelam has paid a sum of Rs. 5000/- to the complainant and the same has been accepted by the complainant party. Accused Narinder has undertaken that he shall deposit a pay order in the name of both the complainant in the sum of Rs. 5000/- within seven days. The complainant may move an appropriate application for release of the same.
Bail bonds are cancelled. Sureties are discharged. File be consigned to Record Room.
ANNOUNCED IN OPEN COURT (DINESH KR. SHARMA) TODAY ON: 28TH AUGUST, 2008 ADDL.SESSIONS JUDGE:DELHI