Delhi District Court
Smt. Karambiri vs The State (Nct Of Delhi) on 11 January, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
Crl. (A) No. 11/16
New Crl. (A)No. 1206/2016
1. Smt. Karambiri
W/o. Late Kunwar Pal
R/o. I255, Sunder Nagri,
Delhi110093.
2. Deepak
S/o. Late Kunwar Pal
R/o. I255, Sunder Nagri,
Delhi110093.
3. Pradeep
S/o. Late Mangat Ram
R/o. I260, Sunder Nagri,
Delhi110093.
4. Raj Kapoor
S/o. Late Daya Chand
R/o. B5/210, Nand Nagri,
Delhi110093. ........... Appellants
Versus
1. The State (NCT of Delhi)
2. Smt. Raj Kumari
W/o. Murari Lal,
R/o. I261, Sunder Nagri,
______________________________________________________________
CA No. 1206/16 Page 1 of 9 Karambiri & Ors. Vs. State & Ors.
Delhi110093.
............ Respondents
JUDGMENT
1. This is an appeal u/s. 374 (3) Cr.P.C against the impugned judgment and order of sentence dt. 10.05.2016 & 27.08.2016 in case titled State Vs. Mangat Ram & Ors., FIR No.61/2002, PS. Nand Nagri passed by Sh. Pankaj Arora, Ld. MM, Shahdara, whereby appellants/accused were convicted and sentenced as under: Appellant/accused Deepak was convicted for offence punishable u/s. 325/354/452 IPC and was sentenced to RI for one year for offence u/s. 325 IPC, RI for one year for offence u/s. 354 IPC and RI for one year for offence u/s. 452 IPC.
Appellant/accused Karambiri was convicted for offence punishable u/s. 325/452 IPC and was sentenced to RI for nine months for offence u/s. 325 IPC and RI for nine months for offence u/s. 452 IPC.
Appellant/accused Pradeep and Raj Kapoor were convicted for offences punishable u/s. 325/354/452 IPC r/w 109 IPC and were sentenced to RI for one year for the offence u/s. 325 IPC r/w 109 IPC, RI for one year for offence u/s. 354 IPC r/w 109 IPC and RI for one year for offence u/s. 452 IPC r/w 109 IPC. Vide impugned order on sentence dt. 27.08.2016, Ld. Trial Court further directed that accused/appellants Karambiri, ______________________________________________________________ CA No. 1206/16 Page 2 of 9 Karambiri & Ors. Vs. State & Ors. Deepak & Raj Kapoor shall pay compensation of Rs.15,000/ each and convict Pradeep shall pay compensation of Rs.50,000/ to the complainant and in default of payment of compensation the convicts/appellants shall undergo further SI for three months. Ld. Trial Court further observed that in view of the inadequate paying capacity of the convicts, this Court hereby recommends further compensation to be awarded by DLSA, SHD, KKD, Delhi from Victim Compensation Fund. It is pertinent to mention here that appellants/convicts have already deposited the compensation amount before this court and also filed an application for grant of probation on which report of Probation Officer was also called.
2. Arguments have been advanced by Sh. S.G.Goswami, Ld. Counsel for appellants as also by Sh. Ashok Kumar, Ld. Addl. PP for the State and Sh. K.S.Tyagi, Ld. Counsel for respondent no.2/complainant.
3. Ld. Counsel for appellants argued that present case FIR was registered u/s. 156 (3) Cr.P.C after about one month from the date of alleged incident. It has been argued that no call at 100 number was made and admittedly at the time of bail, IO conceded before Ld. Sessions Judge that the quarrel took place in the gali and not inside the house of complainant as alleged by her. It has been further argued that ingredients of section 452/354 IPC are not attracted. Ld. Counsel for appellants further submitted that benefit of probation was not granted to the convicts and their statement u/s. ______________________________________________________________ CA No. 1206/16 Page 3 of 9 Karambiri & Ors. Vs. State & Ors. 313 Cr.P.C was recorded in the absence of Counsel.
4. Per contra, Ld. Addl. PP for State assisted by Sh. K.S.Tyagi, Ld. Counsel for respondent no.2/complainant argued that there is no delay in reporting the matter by the injured as DD entry in respect of quarrel was recorded on the day of incident itself. It has been submitted that complainant/injured was medically examined on the same day and as such, there is no illegality or impropriety in the impugned judgment and order on sentence. It has been further submitted that convicts outraged the modesty of a woman after entering into her house, therefore, Ld. Trial Court has rightly refused to grant the benefit of probation to the convicts.
5. Appellants have assailed the judgment as passed by Ld. Trial Court on the grounds that Ld. Trial Court did not apply judicial mind while conducting the trial; that provisions of section 3 of the Probation of offenders Act 1958 is in favour of appellants and Ld. Trial Court erred in not granting probation to them; that Ld. Trial Court did not consider the evidence of defence witness; that Ld. Trial Court passed the impugned judgment without completion of examination inchief and crossexamination of the complainant; that Ld. Trial Court did not comply with the provisions of section 313 Cr.P.C and that statements of appellants u/s. 313 Cr.P.C was recorded in the absence of their counsel.
6. Briefly, the case of prosecution is that complainant filed ______________________________________________________________ CA No. 1206/16 Page 4 of 9 Karambiri & Ors. Vs. State & Ors. a complaint (Ex.PW9/A) u/s. 325/323/341/354/452/506/109/114/34 IPC against the appellants alongwith Mangat Ram @ Mangta and Lalit S/o. Kanwarpal, who both have expired and proceedings against them have already been abated, alleging that " on 27.01.2002 at about 8 pm, Deepak, Karambiri and Lalit came at the house of the complainant and forcibly entered in the house and started filthy language/abuses in obscene language 'Bahan......Sikhayenge' and they started beating to the complainant and Deepak and Lalit caught hold her breast and insulted to the complainant and during this altercation Mangat Ram @ Mangta, Pradeep & Raj Kapoor also came there and they also instigated to the above accused persons and they said "Maro Sali ko ye kabhi hame sharab ki thaili ke paise nahi deti'".
7. In support of its case, prosecution examined 10 witnesses before Ld. Trial Court. Statements of accused/appellants were recorded u/s. 313 Cr.P.C, wherein they claimed that there is past enmity and due to the same they have been falsely implicated by complainant. It was further stated that complainant might have fallen of her own and sustained injuries. In their defence, they examined one Sh. Mohd. Zahid Hussain as DW1. Except complainant, who was examined as PW1, other witnesses examined by the prosecution are either police officials or doctors.
8. Ld. Trial Court vide impugned judgment observed that ______________________________________________________________ CA No. 1206/16 Page 5 of 9 Karambiri & Ors. Vs. State & Ors. the testimony of prosecution witnesses comes out to be clear, convincing, trustworthy and inspires confidence of the Court, however, acquitted the appellants of the charge u/s. 506 IPC while observing that there is nothing on record to indicate criminal intimidation by appellants. It is strange to note that Ld. Trial Court observed that if some portion of the statement of hostile witness inspires confidence, it can be relied upon and the witness cannot be termed as wholly unreliable and on this issue relied upon various judgments including judgment of Hon'ble Supreme Court of India in State of U.P Vs. Chet Ram, AIR 1989 SC 1543 although no prosecution witness was declared as hostile then how these judgments are relevant in the facts and circumstances of the present case, is unexplained.
9. Complainant/injured Smt. Raj Kumari i.e PW1 is the sole eye witness of the alleged incident, examined by the prosecution before Ld. Trial Court. As per her testimony, she was alone at her home at the time of incident. It is admitted by PW1 Smt. Raj Kumari in her crossexamination that many cases were lodged against her elder son, in which accused persons were complainant. Both the parties reside in neighbourhood and previous enmity is also admitted, therefore, testimony of complainant Smt. Raj Kumari requires meticulous scrutiny. In this regard, perusal of evidence of PW1 Smt. Raj Kumari shows that she deposed that accused Mangta provoked the other persons. Thus, ______________________________________________________________ CA No. 1206/16 Page 6 of 9 Karambiri & Ors. Vs. State & Ors. abetment/instigation, if any to commit the offence, was only alleged against accused Mangta (since expired), therefore, conviction of appellant Pradeep & Raj Kumar with the aid of section 109 IPC is not legally sustainable. Further, PW1 Smt. Raj Kumari in her crossexamination recorded on 13.01.2006 admitted that the fact that accused Mangta, Pradeep & Raj Kumar torn her clothes or that they beaten her, is not mentioned in her complaint Ex.PW1/DA. Thus, admittedly, there is improvement in her statement recorded before the Ld. Trial Court on 12.01.2005. There is no evidence on record to prove that these appellants i.e Pradeep & Raj Kumar committed house trespass after having made preparation to cause hurt or to outrage the modesty of complainant so as to attract the ingredients of section 452 IPC, therefore, their conviction u/s. 325/354/452 IPC r/w section 109 IPC is set aside and they are accordingly acquitted of the charges.
10. Coming to the role of convict Karambiri, there is no evidence that she shared any common intention or that she voluntarily caused grievous hurt to complainant/injured. The only evidence against appellant Karambiri is that she entered the house of complainant alongwith accused Deepak and Lalit and they started beating complainant. Except that no other specific act is alleged against appellant/accused Karambiri. There is also no evidence to commit house trespass having made preparation for causing hurt to complainant against appellant/accused Karambiri also, therefore, her ______________________________________________________________ CA No. 1206/16 Page 7 of 9 Karambiri & Ors. Vs. State & Ors. conviction u/s. 325/452 IPC is also set aside and she is also acquitted of the charges.
11. Now coming to the role of appellant Deepak, PW1 Smt. Raj Kumari in this regard has deposed that three days before the incident, appellant Deepak was sitting on the roof of her house alongwith one girl on which she objected and told him not to sit on the roof of her house alongwith girl, whereupon appellant/accused Deepak abused her and threatened her. She further deposed that appellant/accused Deepak pushed her and gave kick blow on her wrist due to which, she sustained injury on her person. She further deposed that appellant Deepak and Lalit (since expired) caught hold of her breast and insulted her.
12. The fact that complainant sustained grievous injuries i.e fracture on her hand is also corroborated by the MLC Ex.PW6/A, which was prepared on the day of incident i.e on 27.01.2002 at 10.05 pm and complainant also gave alleged history of assault. DD No.20A i.e Ex.PW4/A also proves that on 27.01.2002 at 8.50 pm a call was made regarding quarrel. Appellant/accused Deepak had the motive also to commit the offence since complainant had objected to his sitting with a girl on the roof of her house, therefore, conviction of appellant/accused Deepak is maintained. The contention of Ld. Counsel for appellants that statement of appellants u/s. 313 Cr.P.C was recorded in absence of their counsel has no force as the judicial record shows that on 05.02.2015 when ______________________________________________________________ CA No. 1206/16 Page 8 of 9 Karambiri & Ors. Vs. State & Ors. statement of accused persons were recorded, proxy counsel was present in the court. Even a suggestion was not given to PW8 IO/SI Sanjay Kumar that he gave statement before Ld. Sessions Court that the incident occurred in the gali and not in the house of complainant.
13. Ld. Trial Court considering the nature of injuries as grievous and other allegations against the appellants has not granted the benefit of probation under Probation of offenders Act 1958 and awarded a compensation of Rs.15,000/ to be paid to the complainant by appellant Deepak and in default thereof, to undergo SI for three months. Keeping in view the totality of circumstances as well as submissions of Ld. Counsels for the parties, I am not inclined to interfere with the impugned order on sentence passed by Ld. Trial Court qua appellant/accused Deepak except to clarify that all the sentences shall run concurrently and benefit of section 428 Cr.P.C be given to appellant/accused Deepak. Appellant/accused Deepak be taken into custody to serve the remaining sentence. Appeal is accordingly, partly allowed. Trial court record be sent back with a copy of this judgment. Appeal file be consigned to record room. SANJEEV KUMAR MALHOTRA Digitally signed by SANJEEV KUMAR MALHOTRA Location: Karkardooma Announced in the open court Courts, Delhi Date: 2018.01.11 15:37:55 +0530 On 11.01.2018 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi ______________________________________________________________ CA No. 1206/16 Page 9 of 9 Karambiri & Ors. Vs. State & Ors.