Delhi District Court
Sunil Kumar vs . State on 11 April, 2018
CA No. 167/2017
Sunil Kumar Vs. State
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
CA No.167/17
Sunil Kumar
S/o Sh. Balbir Singh,
R/o H. No. B96, PhaseII,
Manglapuri, Palam,
New Delhi. ............. Appellant
Versus
1. The State
(Govt. of NCT of Delhi).
2. Smt. Kavita
W/o Sh. Sunil Kumar
R/o RZF31/562, Gali No. 23,
Sadh Nagar, Palam Colony,
New Delhi.
.............. Respondent
Date of Institution : 27.05.2017
Date of conclusion of arguments : 20.02.2018
Date of Order : 11.04.2018
CA-167/17 Page no.1/18
CA No. 167/2017
Sunil Kumar Vs. State
J U D G E M E N T :
1. The present appeal is preferred by appellant against the impugned judgment dated 26.04.2017 and order on sentence dated 16.05.2017 passed by the Ld. MM, Dwarka Courts, New Delhi whereby convict/appellant was sentenced to undergo simple imprisonment for a period of two years and also to pay a fine of Rs.10,000/ which is to be paid to the complainant as compensation, in default of payment of fines, he shall undergo further simple imprisonment for a period of 90 days for the offence U/s 494 IPC.
2. Brief facts relevant for disposal of the present appeal are like this. For the sake of convenience, the accused and complainant are referred to as appellant and respondent no. 2 respectively. Respondent no. 2 filed a complaint before Ld. Trial Court under section 494/34 IPC CA-167/17 Page no.2/18 CA No. 167/2017 Sunil Kumar Vs. State stating therein that the appellant is married to respondent no. 2 as per Hindu rites and customs on 26.04.2002 and out of the said wedlock two children were born. The appellant is driver by profession, therefore, he used to be out of home on account of nature of his business. The entire household expenses were borne by the father of respondent no. 2 but when she demanded any amount from the appellant she was abused and beaten. The appellant is stated to have become liquor addict and disturbed the peace of the family. Thereafter, complainant received a letter in the name of appellant from the office of the Delhi Mahilla Commission, issued under the request of Ms. Yogita, second wife of the appellant. On inquiry, appellant conveyed to the complainant that someone might have filed a false complaint against him, therefore, appellant and respondent no. 2 have been summoned. Respondent no. 2 again received a notice from the office of CA-167/17 Page no.3/18 CA No. 167/2017 Sunil Kumar Vs. State DCP, Special Cell in the name of said Yogita seeking appearance of the respondent no. 2 in the office of DCP on 14.08.2013. The respondent no. 2 went to the office of DCP, Crime Cell, Nanak Pura, New Delhi where it transpired that appellant has performed second marriage with Yogita in Arya Samaj Mandir, Uttam Nagar, New Delhi on 02.05.2008 as per Hindu rites and customs. The second marriage was performed by appellant with said Yogita with the knowledge that both of them were having living spouses. The appellant has never taken divorce from respondent no. 2 and during the subsistence of first marriage, appellant has gone for second marriage.
3. The complaint was filed, thereafter, pre summoning evidence was recorded. The appellant was summoned and thereafter post summoning evidence was lead. The respondent no. 2 proved her case in the criminal CA-167/17 Page no.4/18 CA No. 167/2017 Sunil Kumar Vs. State by appearing as CW1 and reiterated the contents of the complaint and, interalia, stated that she was married with the appellant on 26.04.2002 as per Hindu rites and ceremonies and thereafter appellant has stated to have performed second marriage with said Yogita. CW2 ASI Jagmeshwar Dayal proved the summoned record. CW3 Smt. Sabita Dass proved the record from Delhi Commission for Women where said Yogita, second wife of the appellant had filed a complaint but the parties failed to appear, therefore, the said complaint was closed on 27.08.2013. CW4 Sh. Arun Kumar Shastri proved the factum of marriage of the appellant with Yogita. CW5 Sh. Umed Singh, father of the respondent no. 2, who deposed that appellant was married to his daughter on 26.04.2002 and father of appellant demanded Rs.2 lacs and other articles at the time of marriage. Thereafter, examination of the appellant under section 313 Cr.PC was recorded, CA-167/17 Page no.5/18 CA No. 167/2017 Sunil Kumar Vs. State arguments were heard and appellant was convicted accordingly.
4. Feeling aggrieved by the impugned judgment and order on sentence, the present appeal has been preferred by the appellant/accused.
5. The contention raised by Ld. Counsel for the appellant are as under :
(i) That the impugned judgment and sentence order are based on the conjectures and surmises in as much as there are material contradictions and vital discrepancies in the testimonies of the witnesses on record including the documents brought on record.
(ii) There is no material on record that the appellant has performed legal marriage with alleged CA-167/17 Page no.6/18 CA No. 167/2017 Sunil Kumar Vs. State second wife Yogita and, therefore, no offence under section 494 IPC is made out without fulfilling the basic requirement of performance of marriage as per Hindu rites and customs.
(iii) The the appellant is a young person and have faced trial for four years, therefore, his case be considered under Probation of Offenders Act and benefit of probation under the relevant provision of law be given to him or in the alternative, sentence be reduced.
6. Per contra ld. Counsel for the respondent has raised the following contentions in support of the impugned judgment and order on sentence :
(i) There is impeccable evidence on record that the appellant has performed second marriage with said Yogita during the subsistence of his first marriage with CA-167/17 Page no.7/18 CA No. 167/2017 Sunil Kumar Vs. State respondent no. 2, therefore, evidence u/s 494 IPC is made out against the appellant.
(ii) The Ld. Trial Court has rightly convicted the accused / appellant by appreciating the oral as well as documentary evidence and deposition of witnesses lead to conclude that the appellant had performed the second marriage during the subsistence of the first marriage, therefore, this appeal being devoid of merits deserves to be dismissed.
7. I have heard ld. Counsel for the appellant as well as ld. Addl. PP for the State and ld. Counsel for respondent no. 2 and have gone through the record of this case.
8. Now, I will deal with the contentions raised by CA-167/17 Page no.8/18 CA No. 167/2017 Sunil Kumar Vs. State Counsel for the appellant which are to the effect that no offence u/s 494 IPC is made out as the ingredients of the said offence is not made out from the testimony of the witnesses and further testimony of the witnesses is full of material contradictions / discrepancies. The said contentions appears to be attractive but the same is fallacious and deserves to be rejected in as much as the respondent no. 2 while appearing as CW1 has reiterated the contents of her complaint that she was married with the appellant as per Hindu rites and ceremonies and her testimony is supported by testimony of her father CW5. No suggestion has been given to this witness by the appellant that the marriage of the appellant with respondent no. 2 was not performed as per Hindu rites and customs. Therefore, factum of marriage of the appellant with respondent no. 2 has been proved on record. CA-167/17 Page no.9/18 CA No. 167/2017
9. Therefore, to attract the provision of section 494 IPC, the respondent no. 2 prove the second marriage of appellant with Yogita as per Hindu rites and customs. To prove the factum of second marriage of the appellant with said Yogita CW4 Sh. Arun Kumar Shastri has categorically testified that the appellant and Yogita had performed marriage in a Mandir on 02.05.2008 as per Hindu rites and customs and the ritual of Saptapadi was also performed by both of them. The appellant and said Yogita also filed affidavit Ex. CW4/A, CW4/B respectively and relevant entry regarding the said marriage of the appellant with said Yogita was also registered at Sl. No.; 15/2008 in terms of Ex. CW4/C. The certificate was also issued in terms of Ex. CW4/D, therefore, respondent no. 2 has proved on record that both the marriages performed by the appellant i.e. first with the respondent no. 2 and second with said Yogita was performed as per Hindu rites CA-167/17 Page no.10/18 CA No. 167/2017 Sunil Kumar Vs. State and customs, therefore, offence under section 494 IPC is made out and ld. trial court has rightly observed so.
10. So far as material contradictions in the testimony of CWs is concerned it may be noted that no such contradictions or discrepancies were pointed out by Counsel for the appellant, therefore, I find no ostensible reason to take a different view of the material on record which has been taken by the Ld. Trial court from the testimony of the witnesses and documents available on record. Therefore, finding of facts by Ld. Trial court does not deserve to be interfered and kept intact.
11. So far as last contention of Ld. Counsel for the appellant is concerned for releasing the appellant on probation or his sentence may be reduced, this court is of the opinion that the appellant did not deserve concession CA-167/17 Page no.11/18 CA No. 167/2017 Sunil Kumar Vs. State of beneficial provision of Probation of Offenders Act in as much as he has cheated his first wife, who was blessed with two sons and got married with said Yogita without disclosing that he has been earlier married with the respondent no. 2 and from the second marriage he also procrated three children, therefore, this request is hereby turned down.
12. So far as reduction of sentence is concerned, it may be noted that while sentencing accused certain mitigating as well as aggravating circumstances are to be kept in mind, and mitigating circumstances are as under :
1. The manner of circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
2. The age of the accused is a relevant CA-167/17 Page no.12/18 CA No. 167/2017 Sunil Kumar Vs. State consideration but not a determinative factor by itself.
3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
5. The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in CA-167/17 Page no.13/18 CA No. 167/2017 Sunil Kumar Vs. State the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
7. Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though prosecution has brought home the guilt of the accused.
13. Thus, imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment. Therefore, undue sympathy to impose inadequate sentence would do more harm to the CA-167/17 Page no.14/18 CA No. 167/2017 Sunil Kumar Vs. State justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
14. Thus, the law on the issue of sentencing policy can be summarized to the effect that punishment should always be proportionate / commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim are not the relevant factors for determining the quantum of punishment. The court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the victim and the gravity of the CA-167/17 Page no.15/18 CA No. 167/2017 Sunil Kumar Vs. State criminal act are the factors of paramount importance. The court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. The power is not to be used indiscriminately in a routine, casual and cavalier manner.
15. It may be noted that in State of M.P. Vs. Bablu Natt [(2009) 2 SCC 272] the Hon'ble Apex Court held that keeping in view the nature of the offence and the helpless condition in which the prosecutrix a young girl of 13/14 years was placed, the High Court was clearly in error in reducing the sentence imposed upon the respondent and that too without assigning any reasons, much less special and adequate reasons. The High Court appears to have overlooked the mandate of the Legislature as reflected in Section 376 (1) IPC.
CA-167/17 Page no.16/18 CA No. 167/2017
16. With the above said principles of law, I would like to advert to the facts of the present case. Although the appellant is having a family to support including five children, two from the first wife and three from the second wife but keeping in view the facts and circumstances of the case, I am of the opinion that none of the mitigating circumstances as stated above are available in the case of the appellant. Yet keeping in view the final status and large number of dependents on the appellant, I deem it appropriate that sentence of two years be reduced to one year. The impugned sentence order is modified accordingly.
17. With these observations, this appeal is partly allowed and is disposed off accordingly in the above said terms. Appellant is directed to surrender CA-167/17 Page no.17/18 CA No. 167/2017 Sunil Kumar Vs. State immediately. Trial court record be sent back immediately alongwith copy of this order. File be consigned to record room. Digitally signed by VIJAY VIJAY KUMAR KUMAR DAHIYA Date:
Announced in the open court today, DAHIYA 2018.04.16 16:23:35 On 11th April, 2018. +0530 (Dr. V.K. DAHIYA) SPECIAL JUDGE : CBI (PC ACT) DWARKA COURTS/NEW DELHI CA-167/17 Page no.18/18