Delhi District Court
Chander Mohan vs The State on 1 August, 2015
IN THE COURT OF SH. SANJEEV JAIN:ADDL.
SESSIONS JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:
NEW DELHI
FIR No. 76/88
P.S. Malviya Nagar
U/S 452/326/323/34 IPC
(Ist Appeal)
UID No. 02406R0118132015
Criminal Appeal no. 11/15
Chander Mohan
S/o B.S. Satsangi
R/o H. No. 24, Dayal Nagar,
Dayal Bagh, Agra, U.P.
Aya Nagar, New Delhi .........Appellant
Vs.
The State
(Govt. of NCT of Delhi) ..........Respondent
Date of institution : 06.04.2015
Date of allocation : 07.04.2015
Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 1/46
(IInd Appeal)
UID No. 02406R0120362015
Criminal Appeal no.12/2015
1. S.D. Bhandari
S/o Sh. D.C. Bhandari
R/o H.No. E9, Swami Nagar,
New Delhi 110 017.
2. Nathi Lal
S/o Sh. Ram Swaroop
R/o H.No. D218, Ganga Vihar,
Delhi ........Appellants
Vs.
State (NCT of Delhi) ......Respondent
Date of institution : 08.04.2015
Date of allocation : 09.04.2015
AND
(IIIrd Appeal)
UID No. 02406R0174562015
Criminal Appeal no. 20/2015
Saran Kumar Mishra & Prabha Mishra
Victim/aggrieved persons/complainant,
R/o E8, PocketB, Soami Nagar,
New Delhi 110 017
Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 2/46
Vs.
1. S.D. Bhandari
2. Chander Mohan
3. Nathi Lal
4. Rakesh Kumar
5. The State (Govt of NCT Delhi).
Date of institution : 27.05.2015
Date of allocation : 28.05.2015
Arguments heard in all appeals on : 16.07.2015
Date of Judgment : 01.08.2015
Appeals No. 11/15 and 12/15 U/S 374 (3) of The Code of
Criminal Procedure (Cr.P.C) against the impugned judgment
dated 28.01.2015 and order on sentence dated 11.03.2015 and
appeal no. 20/15 U/S 372 of The Code of Criminal Procedure
for enhancing the punishment in case FIR No. 76/88 U/S.
452/326/323/34 IPC P.S. Malviya Nagar, New Delhi (by the
Court of Ms. Chetna Singh, Ld. Metropolitan Magistrate,
South, Saket Courts, New Delhi).
Presence: Sh. Chander Mohan (appellant in CA no. 11/15) and
(respondent no. 2 in CA no. 20/15) in person with
Sh. Saurabh Sachan, Advocate.
Sh. S.D. Bhandari and Sh. Nathi Lal (appellants in CA
no. 12/15) and (respondents no. 1 and 3 in CA no.
20/15) in person with Sh. Rajesh Khari, Advocate.
Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 3/46
Ld. Addl. PP for the State/respondent (in CA no.
11/15 & 12/15) and (respondent no. 5 in CA no.
20/15).
Petitioner Saran Kumar Mishra and Prabha Mishra (in
CA no. 20/15) in person.
J U D G M E N T
1. Criminal appeal no. 11/15 titled as 'Chander Mohan vs. State' (hereinafter at some places referred as 'Ist appeal'), criminal appeal no. 12/15 titled as 'S.D. Bhandari & Ors vs. State' (hereinafter at some places referred as 'IInd appeal') and criminal appeal no. 20/15 titled as 'Saran Kumar Mishra vs. S.D. Bhandari & Ors' (hereinafter at some places referred as 'IIIrd appeal') have been filed to challenge the impugned judgment dated 28.01.2015 and order on sentence dated 11.03.2015 passed by the Court of Ms. Chetna Singh, ld. Metropolitan Magistrate02, South District, Saket Courts, New Delhi in case FIR No. 76/88 P.S. Malviya Nagar U/S 323/326/452/34 of The Indian Penal Code (in short 'IPC'). All the three appeals have been filed against the common judgment and order on sentence passed by the ld. trial Court. Hence, I propose to decide all the three appeals by a common judgment.
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2. In Ist appeal, appellant Chander Mohan and in IInd appeal, appellants S.D. Bhandari and Nathi Pal (hereinafter at some places referred as 'accused') have challenged the impugned judgment by which they were convicted and sentenced by the ld. trial Court. Appellant/accused Chander Mohan in Ist appeal was convicted by ld. trial Court for the offences U/S 326/452 IPC and was sentenced to undergo SI for one year and to pay fine of Rs. 1,000/ for the offence U/S 326 IPC. For the offence U/S 452 IPC, appellant/accused Chander Mohan was sentenced to undergo SI for six months and to pay fine of Rs. 1,000/ by ld. trial Court.
3. Appellant/accused S.D. Bhandari and Nathi Lal (in IInd appeal) were convicted for the offence U/S 323/452 IPC by the ld. trial Court and for the offence U/S 323 IPC, they were sentenced to undergo SI for six months and for the offence U/S 452 IPC, they were further sentenced to undergo SI for six months and to pay fine of Rs.1,000/.
4. In IIIrd appeal, complainant/aggrieved person/victim Saran Kumar Mishra and Prabha Mishra have filed appeal for enhancing the punishment of appellants/accused persons.
5. As per prosecution case, complaint dated 09.03.1988 (mark A) was lodged by one Smt. Sahab Pyari Mishra Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 5/46 (complainant). In her complaint Mark A, she alleged that at about 8.00 PM, she alongwith her son Saran Kumar Mishra and daughter Prabha Mishra were present in their house at PocketB, Swami Nagar and were talking to each other. In the meantime, somebody knocked the door. She asked her son Saran Kumar Mishra to look at the door and to check as to who was knocking. When her son Saran Kumar Mishra went to open the door, she heard some noise and asked her daughter to look into the matter. After sometime, complainant saw that somebody was pushing the door of her house from outside and her son and daughter were pushing the door from inside the house. Complainant also started pushing the door outside alongwith her son and daughter. As per complaint Mark A, Smt. Sahab Pyari Mishra saw that her brotherinlaw ('Jeth') namely Chander Mohan, one Mr. Bhandari and other unknown persons were there. Somebody came from outside to pull her out. In the meantime, one of the person caught her hair and tried to push her outside the house. She felt as if her plait (Choti) was caught. Thereafter, complainant Smt. Sahab Pyari Mishra was hit at her head with some sharp edged object. As his plait was struck between the door, she asked her son to cut her hair and accordingly her son cut her hair by scissor.
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6. As per trial Court record, on the basis of complaint Mark A and DD no. 17A, FIR No. 76/88 U/S 323/326/452/34 IPC was lodged at P.S. Malviya Nagar on 11.03.1988. After investigation, chargesheet was filed in the Court. Accused persons were summoned. Copies were supplied to accused persons as required U/S 207 Cr.P.C. On the basis of material on record, ld. Trial Court framed charges against all the three accused persons for the offences U/S 323/326/452/34 IPC. Accused persons pleaded not guilty and claimed trial.
7. In order to prove its case, prosecution has examined only four witnesses.
7.1 PW1 HC Sukhpal Singh proved copy of FIR Ex.PW1/A and stated that he was the Duty Officer at P.S. Malviya Nagar and recorded the FIR. In cross examination, PW1 stated that FIR was lodged on 11.03.1988.
7.2 PW2 Sh. Saran Kumar Mishra was one of the star prosecution witnesses who supported the material allegations contained in complaint Mark A and deposed that on 09.03.1988 the door of his house was knocked by strangers and they tried to enter inside. Further, this witness deposed that on hearing noise, his sister Prabha Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 7/46 Mishra and his aunt Sahib Pyari Mishra came and tried to help him but accused persons managed to open the door and entered inside. He further deposed that they succeeded in pushing out the said persons out of the door and all accused i.e. S.D. Bhandari, Mamu, Rakesh and Chander Mohan entered the balcony and were pushed out by them. The plait (Choti) of his aunt got struck in the door and on the directions of his aunt, he cut her hair and shouted to call the police. Someone called the police. Police came at the spot and took him, his cousin Prabha Mishra and aunt Sahib Pyari Mishra to the police station and then they were sent for medical examination. He was cross examined by ld. defence counsels at length.
7.3. PW3 Sh. Suresh Kumar, JMRO, AIIMS proved MLC Ex.PW3/A and Ex.PW3/B respectively and stated that these MLCs were prepared by Dr. Arun Walia and Dr. M.Y. Ismail respectively, which bears their signatures at point X. PW3 identified the handwriting and signatures of concerned doctors and stated that he had seen them writing and signing in official routine work. PW3 also Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 8/46 stated that both the doctors had left the hospital and their present whereabouts were not known as the records were pertaining to the year 1988. In his cross examination, PW1 admitted that MLCs were not prepared in his presence, however he was working in AIIMS since 1980.
7.4 PW4 Smt. Prabha Mishra was examined on 23.07.2001 and she also supported the material facts contained in complaint Mark A and deposed on the lines of PW2. PW4 further deposed that when she tried to close the door alongwith her brother. The accused persons started beating her inside the house and when they tried to push the accused persons from the door, all the accused caught hold of the plait (Choti) of her mother. The accused Chander Mohan gave a knife blow on the head of her mother when they tried to push the accused out of the house. In this grappling the plait of her mother came between the door at the time of bolting the door and the said plait was cut to save her as the accused persons had caught the plait from outside. She was also cross examined at length by ld. defence Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 9/46 counsels. She admitted the fact that the house where the incident took place was allotted to one Sh. Uma Shankar Mishra by Delhi Dayal Bagh Cooperative Housing Society.
8. In defence evidence, DW1 Sh. P.K. Sethi was examined on 29.11.2006. DW1 stated that he was the officer in charge of legal matters of Delhi Dayal Bagh Cooperative House Building Society. Swami Nagar, New Delhi (hereinafter referred as "Group Housing Society). DW1 stated that as per record of Group Housing Society, flat no. E8, PocketB was allotted to Sh. Uma Shankar Mishra. On the application of Sh. Uma Shankar Mishra, the same was transferred in the name of Sh. Sunila Singh in the meeting of Managing Committee of Group Housing Society held on 16.12.1984. DW1 further deposed that vide letter dt. 03.04.1988 Ex.DW1/C Sh. Mishra requested to Managing Committee to cancel the transfer of flat to Smt. Sunila Singh if it had already been done. Sh. Mishra was informed vide reply dt. 27.04.1988 Ex.DW1/D that his request for cancellation of the license in favour of Smt. Sunila Singh and for allotment in his favour could not be allowed as the Managing Committee had already transferred the Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 10/46 license in favour of Smt. Sunila Singh after considering the aspect of the case. DW1 further deposed that police made inquiry in respect of ownership of said flat and pursuance to telephonic conversation, the society wrote letter dt. 12.04.1988 Ex.DW1/E to SHO P.S. Malviya Nagar and informed that Smt. Sunila Singh was the owner/licensee of the said flat. This witness was cross examined by ld. APP for the State at length.
9. DW2 Ms. Sunila Singh deposed that H.No. E8, Pocket 8, Swami Nagar was allotted by Delhi Dayal Bagh Society to her father late Sh. Pandit Uma Shankar Mishra. In the year 1983, her father requested the society for transfer the said flat in her name and the same was transferred in her name in the year 1984. DW2 further deposed that after her marriage in 1982, her husband allowed her to stay with her father in the said house to look after him. DW1 deposed that her brother Raj Kumar Mishra and Saran Kumar Mishra used to deal in narcotic substance. They used to have illicit relations with women and were involved in criminal cases. Further, her father expelled Sh. Saran Kumar Mishra in the year 197677 and she used to live with her father. After the death of her father, Saran Kumar Mishra came and requested to allow him to reside in the house as he had no other place to live. As her Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 11/46 father had disowned and expelled him, she (DW1) did not accede to his request. DW1 further deposed that Sahab Pyari Mishra and her daughter Ms. Prabha Mishra with whom Saran Kumar Mishra had illicit relations were living with him. Saran Kumar Mishra also lodged false complaint to defame her husband. DW1 further deposed that when she left for Agra, Saran Kumar Mishra and other broke the lock of the house and trespassed into it. On 09.03.1988 (in evening) she, her husband and three children went to E8, pocket B, Swami Nagar. Her husband knocked the door. Sh. Saran Kumar Mishra opened the door and on seeking her husband, Saran Kumar Mishra quickly closed the door. The right hand thumb of her husband got caught between the door and was injured. Police was called at the spot who took us to P.S and after medical examination of her husband, they were allowed to go (by the police) and went to Agra. Subsequently, they came to know that the present case was falsely registered against them. DW1 further deposed that at the time of alleged incident as claimed by prosecution, she was on duty at Delhi Jal Board. In cross examination, DW1 deposed that at the relevant point of time her husband was posted at Agra.
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10. Accused S.D. Bhandari himself appeared as DW3 and deposed that on 09.03.1988 from 6.30 to 9 O Clock, he had gone to Satsang Hall to attend Satsang and when he came back, he noticed that public persons alongwith police had gathered outside his flat and came to know that some scuffle had taken place. DW3 further deposed that on that day, police did not arrest anybody. On 11.03.1988, he wrote a letter to SHO that Saran Mishra was threatening him and his children. Further, he wrote letter to SHO on 15.07.1998 and to DCP on 24.07.1988. Further, he deposed that his name had been incorporated in the present case to pressurize him as he had earlier stood as a witness in favour of Chander Mohan in a case. This witness was cross examined by ld. APP for the State at length.
11. After defence evidence, statement of accused persons were recorded by ld. Trial Court U/S 313 Cr.P.C. All the accused persons denied the incriminating evidence and claimed that they have been falsely implicated in the case.
12. I have heard ld. Addl. PP for the State and ld. counsels for appellants. I have carefully gone through the testimony of witnesses, documents proved on record, the impugned judgment and order on sentence, Trial Court record and the written Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 13/46 submissions filed on record. I have also given my considered thought to the arguments advanced at bar by ld. APP and ld. counsels for appellants.
DELAY IN REGISTRATION OF FIR 13.1 It was vehemently argued by ld. counsels for appellant in first and second appeal that clearly there is a delay of about two days in registration of FIR but this fact has been ignored by ld. Trial Court. Ld. Addl. PP for the State submitted that there is nothing on record to establish any inordinate delay on the part of the complainant and no prejudice has been caused to the accused persons.
13.2 In respect of delay in FIR, the relevant cases relied by ld. counsel for accused Chander Mohan are mentioned in para no. 25 and the findings of ld. trial Court are contained in para no. 35 & 36 of the impugned judgment, which are reproduced as follows:
"25. In this regard, ld. defence counsel for accused Chander Mohan has relied upon case titled "Om Prakash vs. State" 1998 Criminal Law Journal 2625 which deals with non examination of doctor and case titled "Bhim Sen Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 14/46 vs. State" reported as 2001 (60) DRJ 489. Further, ld. defence counsel for accused Chander Mohan has also relied upon case titled "Abdul Rahim vs. State" reported as Criminal Appeal 126 of 1995 and case titled "Ganesh Bhavan Patel vs. State of Maharashtra" 1979 AIR 135 for delay in registration of FIR and recording of statement of the witnesses."
"35. In this regard, it is necessary to examine the arguments of the defence that there was a delay of one and half day for lodging of FIR and accordingly the same can prove fatal to the case of prosecution. The defence has relied upon case titled "Ganesh Bhavan Patel vs. State of Maharashtra" 1979 AIR 135 wherein the Apex Court dealt with the question of delay in registration of the FIR and delay in recording of statement of the witnesses. The Apex Court concluding paragraph held as under: "Thus, considered in the light of surrounding Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 15/46 circumstances, this inordinate delay in registration of the FIR and further delay in recording the statement of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story".
"36. As per the case of the prosecution and as per the copy of the FIR which is Ex.PW1/A, the date and hour of occurrence is stated to be 09.03.1988 and 8.00 AM and the FIR was lodged only on 11.03.1988 vide DD no. 17A received at 12.05AM. As per the case of prosecution, the complainant made a call which was recorded vide DD no. 11A dt. 09.03.1988. However, as per the mark A being the hand written statement of the Sahab Pyari Mishra (since deceased) bearing signatures at point A dated 09.03.1988, the IO HC Attar Singh departed for inquiries in support of DD no. 11A dated 09.03.1988 only on 10.03.1988 at 11.40 PM. As far as the delay in Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 16/46 recording of FIR is concerned, there are documents on record which corroborate the receipt of PCR call on the day of incident vide DD no. 11A, there is a hand written statement of mark A of complainant Smt. Sahab Pyari Mishra which is dated 09.03.1988. On the basis of her statement, the IO HC Attar Singh proceeds for inquiries on 10.03.1988 at 11.40 PM. Thus, the fact that the complaint was made to the police station on the date and time of incident its lends credence to the story of the prosecution with the alleged incident happened on the date and time as alleged. Further, the case relied upon by the defence also states that the delay should be "inordinate", "unexplained"
delay. The delay of one and half days had been explained by the documents on record. In this regard, the testimony of PW2 namely Saran Kumar Mishra and PW4 Prabha Mishra is also relevant".
Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 17/46 13.3 I have also carefully gone through the trial Court record and the testimony of the witnesses. Without any doubt, it is clear that complaint was lodged by Smt. Sahab Pyari Mishra in the police station on 09.03.1988 and in this regard DD entry was received in the police station at 12.05 AM. On the same complaint dated 09.03.1988, FIR Ex.PW1/A was recorded in police station on 11.03.1988. So it is clear that there is no delay in lodging the complaint from the side of the complainant and there is no material on record to accept any manipulation in the complaint lodged on 09.03.1988. If there is a delay of about two days in registration of FIR, it was by the police but the genuineness of the prosecution case cannot be doubted. In my view, ld. trial Court has rightly concluded from the documents on record that the delay in registration of FIR has been properly explained. I find no substance in the contention of ld. counsels for appellants in this regard.
14. Ld. counsels for appellants in Ist and IInd appeal submitted that admittedly property bearing no. E8, Swami Nagar, Delhi was transferred by Sh. Uma Shankar Mishra in the name of Smt. Sunila Singh and there were previous litigations between the parties. Ld. counsel for appellants submitted that in fact Smt. Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 18/46 Sahab Pyari Mishra, Smt. Prabha Mishra and Sh. Saran Kumar Mishra had trespassed in the property of Smt. Sunila Singh wife of accused Chander Mohan. Ld. counsel for appellants submitted that due to dispute over the property bearing no. E8, Swami Nagar and the previous litigations, PW2 Sh. Saran Kumar Mishra and PW4 Smt. Prabha Mishra were interested witnesses. It was submitted that the testimony of PW2 and PW4 suffers from material contradictions and improvements to their statement recorded U/S 161 Cr.P.C and therefore, their testimony cannot be accepted to sustain the conviction of accused persons without corroboration. It was submitted that Smt. Sahab Pyari Mishra complainant of this case, investigating officer and the doctors who prepared the MLCs were not examined by the prosecution and the original record of MLCs could not be proved. As there was no corroboration to the testimony of PW2 and PW4, it was not proper to accept the testimony of PW2 and PW4 to sustain the conviction of accused persons.
15. Though it has come on record that property bearing no. E8, Swami Nagar, Delhi was originally allotted to Sh. Uma Shankar Mishra and on his application the same was transferred in the name of defence witness Smt. Sunila Singh but this fact cannot Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 19/46 be given much importance in the facts & circumstances of the case. In this criminal case, Court is not required to decide the question of ownership of the property. The material question is that at the time of alleged incidence who was in possession of property bearing no. E8, Swami Nagar, Delhi and who was the aggressor who tried to commit trespass and other offences. From the testimony of PW2 and PW4, it is established beyond reasonable doubt that Smt. Sahab Pyari Mishra, Smt. Prabha Mishra and Sh. Saran Kumar Mishra were living in property bearing no. E8, Swami Nagar, Delhi at the time of incidence and they were in possession of the same. Nothing is proved on record by Smt. Sunila Singh or any other accused persons that Smt. Sunila Singh or any other person was in possession of the said property on the day of incidence. Therefore, I do not find any substance in the contention of ld. counsel for appellants that because it was a dispute between family members over the property and the complainant, PW2 and PW4 were the trespassers. In this regard, I do not find any reason to differ with the findings of ld. trial Court.
16. Ld. counsels for appellants gave much stress to the contradictions and improvements in the testimony of PW2 and PW4 alleging that they have improved over their statement U/S 161 Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 20/46 Cr.P.C. Ld. Trial Court has observed that neither PW2 nor PW4 was confronted with their statement U/S 161 Cr.P.C during their cross examination and therefore contention of contradictions/ improvements in statement U/S 161 Cr.P.C cannot be accepted. I have carefully gone through the record as well as the testimony of PW2 and PW4. There is no doubt that there was some dispute about ownership and possession of property bearing no. E8, Swami Nagar, Delhi, between the parties and the parties were involved in different litigations prior to alleged incident. Therefore, complainant as well as PW2 and PW4 may be said as interested witnesses. In my opinion, the only requirement of law is that the testimony of interested witnesses should be appreciated with due care and caution and Court should seek some corroboration to their testimony. Complainant Smt. Sahab Pyari Mishra could not be examined by the prosecution. PW2 and PW4 were examined and they were cross examined by ld. defence counsels at length. Careful perusal of testimony of PW2 and PW4 clearly reveals that they withstood with their previous statements on material facts of the case and their credibility cannot be impeached in any way during the cross examination on the material aspect of the case. The testimony of PW2 and PW4 appears to be natural, credible, Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 21/46 trustworthy and straightforward. The testimony of PW2 and PW4 finds corroboration from the fact that on the day of incidence i.e. 09.03.1988 PCR was called; complaint was given in the police station, Smt. Sahab Pyari Mishra and others were taken to hospital and were medically examined by the doctors and their MLCs were prepared. Keeping in view the facts & circumstances of the case, I do not find any ground to believe the allegations that injuries would have been caused by the victims themselves just to falsely implicate the accused persons. In this regard, I do not find any error in the findings of ld. trial Court. Further, the fact that there was a dispute over the property bearing no. E8 and there were previous litigations between the parties, it may be interpreted both ways. It could be a reason for false implication of accused persons by the complainant and PW2 and PW4. But at the same time it could also be a cause for the accused persons to commit the alleged offence. In this case prosecution has successfully proved that the complainant, PW2 and PW4 were in possession of disputed property bearing no. E8, Swami Nagar, Delhi on the day of incidence and the accused persons were aggressors who committed house trespass and caused injuries on the person of complainant. On the other hand, even in balance of probabilities, Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 22/46 defence has failed to establish their defence of innocence. After careful consideration of entire material on record, I do not find any substance in the contentions of ld. counsels for appellants. In my view, ld. Trial Court has rightly relied on the testimony of PW2 and PW4 which is corroborated from the documents and medical record.
17. It was contended by ld. counsels for appellants that doctors who prepared MLCs were not examined and the original medical record could not be produced from the hospital on the ground that the same has been destroyed. From the facts of the case, without any doubt, it has been established that it was the incidence of March, 1988 and trial started after a long time. From the testimony of PW3, it has been proved on record that Dr. Arun Walia and Dr. M.Y. Ismail who prepared MLCs of Chander Mohan and Smt. Sahab Pyari Mishra had already left the hospital and their whereabouts were not known. MLCs were proved by PW3 who identified the signature and handwriting of the above mentioned doctors. From the evidence of PW3 or otherwise there is nothing on record to establish any manipulation in the MLCs Ex.PW3/A and Ex.PW3/B. The testimony of PW3 is further supported by PW2 and PW4 who stated that injured were taken to the hospital Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 23/46 and medically examined. Therefore, in my opinion, ld. trial Court has rightly relied on the MLCs proved by PW3. In para no. 44 of impugned judgment, ld. trial Court has observed that :
"44. MLCs on record further led credence to the story of the prosecution as regards injury being caused to the injured Sahab Pyari Mishra (since deceased). The MLC is Ex.PW3/B which states the injury to be grievous caused by sharp as well as blunt object. The MLC is dated 09.03.1988 which is in corroboration with the testimony of PW2 and PW4. The time has been stated to be 10.05 PM which again corroborates the version of the witnesses who have deposed in the Court. The injuries stated in the MLC are as under:
• Clean incised wound on right ear and scalp (frontal), • Hematoma/tenderness on scalp on the parietal, left temporal/occupital region of the scalp, • Loose tooth, • Abrasion on the right forearm and hand.
18. The nature of injuries as mentioned in MLC has clearly established the assault on the person of injured Smt. Sahab Pyari Mishra with a sharp instrument which resulted in incised wound on the right ear and the frontal scalp. The injuries mentioned about tenderness and Hematoma and various portions Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 24/46 of scalp which clearly establish that she was also injured by a blunt weapon as well. The nature of injuries mentioned in the MLC of Smt. Sahab Pyari Mishra were mainly on the head portion, which could be fatal to the life. Therefore, I do not find any reason to disbelieve the opinion of the doctors about grievous injuries on the MLC of Smt. Sahab Pyari Mishra. The facts mentioned in MLC of Smt. Sahab Pyari Mishra also finds corroboration from the evidence of PW2 and PW4. It has been clearly established on record that Smt. Sahab Pyari Mishra suffered simple and grievous injuries with sharp instrument as well as blunt object and therefore ld. trial Court has correctly relied on the testimony of PW3 and the MLCs mentioned above.
19. It was argued by ld. counsel for appellants that investigating officer was not examined in this case. Ld. trial Court observed in para no. 53 of the impugned judgment that "Thus, that if after genuine efforts are made by the prosecution to produce its witnesses, the witnesses are unable to appear or cannot be examined and if the same has not caused material or reasonable prejudice to the accused, in such cases non examination of the IO has got no effect. It is clear from the testimonies of the material witnesses as well as from the Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 25/46 documents on record that the injured received injuries at the hands of the accused persons in furtherance of their common intention".
20. There is no doubt that investigating officer is an important witness in a criminal trial who may clarify the process of investigation including the conclusion drawn by the prosecution. Every case has its own facts. In some cases, investigating officer is a very material witness where he collected evidence apart from statement of complainant and the material witnesses. In the present case, prosecution case is based mainly on the complaint of Smt. Sahab Pyari Mishra and the oral testimony of PW2 and PW4. There is no material evidence on record collected by IO apart from the statement of complainant and PW2 and PW4. Therefore, in my opinion, much importance cannot be attached to the non examination of investigating officer. Trial Court record reveals that sincere efforts were being made to summon and examine the investigating officer. The trial was prolonged for about 27 years and in these circumstances, the presence of IO could not be procured and he could not be examined. Even during the course of arguments, nothing material was argued by ld. counsel for appellants in this regard to establish that how prejudice has been Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 26/46 caused to any appellant/accused due to non examination of investigating officer. Ld. trial Court has observed that "it is quality and not quantity of evidence which matters and the evidence is required to be weighed and not counted". Ld. trial Court has cited number of judgments in this regard and some of them are:
➢ State of UP vs. Ballabh Das (AIR 1985 SC 1384) ➢ State of UP vs. Ram Swaroop (AIR 1988 SC 1028) ➢ State of UP vs. M.K. Anthony (AIR 1985 SC 48) After careful consideration, in my opinion, ld. trial Court has rightly observed that non examination of investigation officer is not fatal to the prosecution case and it does not prejudiced any of the accused in any manner.
21. It was submitted by ld. counsels for appellants that specific role of accused Chander Mohan was not specified by PW2 and PW4. PW2 and PW4 have clearly stated about the presence of accused Chander Mohan and other accused persons. PW2 and PW4 has clearly stated that accused Chander Mohan alongwith other accused persons tried to trespass in house bearing no. E8, Swami Nagar, Delhi, occupied by the complainant and PW2 and PW4 and caused injuries on the person of Smt. Sahab Pyari Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 27/46 Mishra with a knife. In view of above findings and reliability of testimony of PW2 and PW4, which finds corroboration from the medical record and the facts & circumstances of the case, I do not find any merit in the said contention.
22. Ld. counsels for appellants submitted that accused Chander Mohan and S.D. Bhandari were not present at the spot and this fact has been corroborated by the defence witnesses and the testimony of defence witnesses has been ignored by ld. trial Court. I have carefully perused the testimony of the witnesses and the documents proved on record. In view of above findings, in my opinion, ld. trial Court has rightly disbelieved this defence plea of the accused person and believed the testimony of PW2 and PW4 and the circumstances of the case. The cross examination of PW2 and PW4 and the statement of accused Chander Mohan reflects the inconsistency and contradictory defence about his presence and role in the incidence in question, which makes the defence story unbelievable. In statement of accused U/S 313 Cr.P.C recorded on 24.04.2003, in response to first question, accused Chander Mohan stated that no such incidence took place. In the same statement, in response to second question, he stated that he received injuries at the hands of Sh. S.K. Mishra, the son of complainant. In response Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 28/46 to the last question, accused Chander Mohan stated that he has been falsely implicated and after giving him beatings, registered this false case. If at all accused Chander Mohan was not present at the spot or no incidence had taken place, there is no explanation as to how he could get injuries and could be medically examined. Further, in his statement, accused Chander Mohan stated that he was posted in Agra and on intimation of incidence, he reached Delhi and lodged a police complaint with P.S. Malviya Nagar. This version of accused Chander Mohan is just contrary to his earlier statement given in statement U/S 313 Cr.P.C. Further, there is no evidence on record to accept that the wife of accused Chander Mohan was in actual and physical possession of the house in dispute on the day of incidence. If accused Chander Mohan was in Agra at the time of incidence, how he could get injuries.
Similarly the defence version of accused S.D. Bhandari that he was in 'Satsang' does not inspire any confidence. I do not believe that he has been falsely implicated.
23. It was submitted in support of second appeal that weapon of offence and the blood stained clothes of injured were not recovered and produced before the Court. Keeping in view the nature of testimony of PW2 and PW4, MLCs and other documents, Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 29/46 in my view, in the facts & circumstances of the case, non production of blood stained clothes or the weapon of offence does not create any doubt. In this case, the identity of accused persons is not in dispute and therefore the blood stained clothes cannot further clarify the facts. The nature of injuries have been clearly mentioned in MLCs and therefore, non production of weapon of offence is fatal to the prosecution case.
24. In order to prove its charge, prosecution was required to prove the following essential ingredients:
(a) That all the accused committed offence in furtherance of their common intention;
(b) That in further of common intention, all the accused:
i. voluntarily caused simple injury on the person of the complainant;
ii. voluntarily caused grievous hurt by dangerous weapon or means on the person of complainant; and iii. committed house trespass after preparation for hurt, assault or wrongful restraint.
25. In view of above discussion, the testimony of witnesses and the documents proved on record, it has been Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 30/46 established beyond any doubt that all the accused forcibly entered in the house used by complainant and PW2 and PW4 for dwelling house, with having possession of sharp edged weapon and blunt object and caused hurt on the person of the complainant. The entire sequence of the facts has clearly established that all the accused acted in furtherance of their common intention. Therefore, in my opinion, prosecution has successfully established the charges against accused persons beyond any reasonable doubt by proving all the essential ingredients. Accordingly, in my view, there is no merit in the Ist and IInd appeal in respect of conviction of accused persons recorded by ld. Trial Court and the appeals are liable to be dismissed in this regard.
26. IIIrd appeal has been filed by Sh. Saran Kumar Mishra and Smt. Prabha Mishra being victims/aggrieved persons/complainant for enhancement of sentence awarded by ld. Trial Court. Mainly, it is stated by the appellant that despite their request, Delhi Administration did not file the appeal for enhancement of sentence. It is submitted that ld. Trial Court has awarded inadequate and disproportionate sentence to accused persons without considering the gravity of offence U/S 326 IPC, which is punishable with imprisonment for life or with Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 31/46 imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. It is also alleged that ld. trial Court did not pass any order for compensation to the victims/aggrieved persons. Appellants requested that keeping in view the gravity of offence, in larger interest of society and the agony suffered by the victims/aggrieved persons, the punishment awarded by ld. trial Court may be enhanced and the appellants be sentenced with more severe punishment in accordance with law.
27. Ld. counsels for accused persons submitted that ld. trial Court has already taken a very harsh view on the point of sentence and requested for a lenient view. It was submitted that all the accused are old aged persons. They have faced a long trial for more than 25 years. None of the accused has any previous criminal record. All the accused have family responsibilities and are suffering from various ailments. Ld. counsel submits that ld. trial Court did not consider their plea for grant of probation to the accused persons.
28. The complex question of determination of nature and quantum of sentence comes before the Court after the conviction of an accused. The decision of punishment depends on various relevant factors relating to the nature of offence, the manner of its Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 32/46 commission and the gravity of the same. The horizontal and vertical competing interest between society and individual, the victim and accused and the aspiration of "object to be sought" and the limitations of law require accurate analysis and harmonization of remedial, reformative and preventive steps.
In Giassudin Versus State of Andhra Pradesh, AIR 1977 SC 1932, it was held that...
"a proper sentences is the amalgam of many factors such as the nature of offence, the circumstances extenuating or aggravating of the offence, the prior criminal record (if any) of offender, the age of offender, the record of offender as to employment, the background of offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of offender, the prospects for rehabilitation of the offender, the possibility of return of offender to normal life in the community, the possibility of the treatment or training of offender, the possibility that the Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 33/46 sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to particular type of offence. These factors have to be taken into account by the court in deciding upon the appropriate sentence"
29. In general, while granting the sentence, Court must consider if there is any chance of reformation of the convict. In case the reformation is not possible then Court may also consider other objects of sentence i.e. deterrence and prevention.
30. Under Chapter XXIX title "Appeals", section 372 Cr.P.C provides that:
"372. No appeal to lie unless otherwise provided: No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the tie being in force.
[Provided that the victim shall have a right to Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 34/46 prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court]".
31. Section 377 Cr.P.C provides that:
"377. Appeal by the State Government against sentence: (1) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present (an appeal against the sentence on the ground of its inadequacy)
(a) to the Court of Session, if the sentence is passed by Magistrate; and
(b)to the High Court, if the sentence is passed by any other Court;
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 35/46 Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may also direct] the Public Prosecutor to present [an appeal against the sentence on the ground of its inadequacy,__________
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b)to the High Court, if the sentence is passed by any other Court;] (3) When an appeal has been filed against the sentence on the ground of its inadequacy, [the Court of Session or, as the case may be, the High Court ] shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 36/46 accused may plead for his acquittal or for the reduction of the sentence".
32. Careful perusal of Section 377 Cr.P.C makes it clear that against the sentence, appeals may be filed by the State U/S 377 Cr.P.C. In the present case, the state has not filed any appeal against the sentence in accordance with section 377 Cr.P.C.
Proviso to Section 372 Cr.P.C provides that "the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation". From the bare reading of Section 372 and 377 Cr.P.C, it is clear without any doubt that though victims have been given a right to file an appeal U/S 372 Cr.P.C, but they can file an appeal only in three eventualities i.e. i. against acquittal of accused;
ii. against inadequate compensation; and iii. against conviction for lesser offence.
33. In view of section 372 and 377 Cr.P.C, in my opinion, on the appeal of victim U/S 372 Cr.P.C, the sentence cannot be Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 37/46 enhanced but the plea against "inadequate compensation" may be considered. It is not the case of appellant in third appeal that accused persons have been convicted for a lesser offence or they have been acquitted. Therefore, appeal may be considered only on the ground of inadequate compensation.
34. Ld. counsels for appellants requested for probation to the accused persons on account of their clean antecedents, old age, ailments etc.
35. Section 360 Cr.P.C provides that when any person is not under twentyone years of age is convicted with fine only or with imprisonment for a term of seven years or less, subject to other conditions, he may be released on probation.
36. It is clear that offence U/S 326 IPC is punishable with imprisonment of life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Therefore, as far as accused Chander Mohan, who has been convicted for the offence U/S 326/452/34 IPC is concerned, his case is not covered U/S 360 Cr.P.C.
The other two accused namely S.D. Bhandari and Nathi Lal have been convicted for the offences U/S 323/452 IPC. Offence U/S 452 IPC is punishable with imprisonment of either Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 38/46 description for a term which may extend to seven years and shall also be liable to fine, whereas for the offence U/S 323 IPC, accused may be sentenced 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.
37. The proved facts against accused persons are that in furtherance of their common intention, they forcibly entered in the house of complainant, used criminal force and caused simple and grievous injuries on the person of complainant with sharp edged and blunt object. The sequence of facts, which resulted in commission of offence itself indicate the gravity of offence. If the people are allowed to take the law in their own hands or to enter in residential houses of others to cause grievous injuries in order to take forcible possession of the properties, then it will be difficult for the society as a whole. These type of crimes creates fear in the minds of society at large. In my opinion, these offences are serious in nature. Therefore, in my opinion, keeping in view the facts & circumstances of the case, these are the special reasons to decline the probation to accused S.D. Bhandari and Nathi Lal also. Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 39/46
38. The plea of appellant in third appeal is against the impugned order on sentence on the plea that compensation has not been awarded by the ld. Trial Court to the victims. Section 357 Cr.P.C, which deals with order to pay compensation provides that:
"357. Order to pay compensation: (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 40/46 offence, in paying compensation to the persons who are, under the Fatal Accident Act, 1853 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 41/46 (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused persons has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section".
39. As per section 357 Cr.P.C, when fine forms the part of sentence imposed by the ld. Trial Court, the Court may order for the payment of compensation from the fine recovered from Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 42/46 convicts. But, when Court imposed sentence of which fine does not form a part, the Court may order the accused persons to pay by way of compensation to the specific persons who had suffered any loss or injuries by reason of act of the accused. Section 357 Cr.P.C. makes it clear that compensation may be awarded either from the fine recovered from the accused persons or where fine is not a part of sentence, the compensation may be separately directed. U/S 357 Cr.P.C, the award of compensation over and above the fine is not permissible.
In the present case U.S 326 IPC and 452 IPC alongwith the imprisonment provided for these offences, accused shall also be liable to fine. Therefore, in this case, as per section 326 Cr.P.C and 452 IPC, it is mandatory for the Court to impose fine alongwith imprisonment of sentence. Therefore, the question of grant of compensation to the victims may be considered only out of the fine recovered from the accused persons and order for compensation in addition to the fine is not permissible U/S 357 Cr.P.C. As discussed above, the enhancement of fine will amount to enhancement of sentence which is not permissible U/S 372 Cr.P.C.
Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 43/46
40. In view of above discussion, in my opinion, in IIIrd appeal filed by the victims/aggrieved persons, in accordance with Section 372 Cr.P.C, enhancement of sentence of imprisonment or fine is not permissible and therefore, the plea of enhancement of sentence cannot be allowed. In my view, ld. trial Court has considered all incriminating and mitigating circumstances while passing order on sentence and therefore there is no reason to interfere in the findings of ld. trial Court on the question of sentence of imprisonment and fine. However, the appellants in IIIrd appeal are also victims of the crime as accused persons tried to trespass in their house. Therefore, they deserve the payment of compensation. In view of above discussion, fine recovered from the accused persons be paid to appellants of IIIrd appeal namely Saran Kumar Mishra and Smt. Prabha Mishra in equal share. In my view, the case is not squarely covered to invoke Section 357A Cr.P.C in respect of the compensation.
41. In view of above discussion, Ist criminal appeal No. 11/15 filed by Chander Mohan and IInd criminal appeal no. 12/2015 filed by S.D. Bhandari and Nathi Lal are dismissed and the conviction and sentence of accused persons recorded by ld. trial Court is upheld in the following manner:
Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 44/46 ➢ Appellant Chander Mohan is convicted U/S 326 IPC and 452 IPC and sentenced as under:
1. To undergo simple imprisonment for one year and to pay fine of Rs. 1,000/ U/S 326 IPC. In default of payment of fine he shall further undergo simple imprisonment for one month.
2. To undergo simple imprisonment for six months and to pay fine of Rs.1,000/ U/S 452 IPC. In default of payment of fine he shall further undergo simple imprisonment for one month.
➢ Appellants S.D. Bhandari and Nathi Lal are convicted U/S 323 IPC and 452 IPC and sentenced as under:
1. To undergo simple imprisonment for six months U/S 323 IPC.
2. To undergo simple imprisonment for six months and to pay fine of Rs. 1,000/ U/S 452 IPC. In default of payment of they will (each) further undergo simple imprisonment for one month.
All sentences shall run concurrently.
42. The IIIrd appeal bearing no. 20/2015 filed by Saran Kumar Mishra and Smt. Prabha Mishra is partly allowed with Crl. appeals no. 11/15, 12/15 & 20/15 01.08.2015 Page no. 45/46 respect to award of compensation. The fine recovered from accused persons be paid to both the appellants in equal share as compensation.
43. Accordingly, personal bond and surety bonds of appellants in Ist and IInd appeal stands cancelled. They be taken into custody. Necessary custody warrants be prepared. It is stated by the prosecution and the appellants that none of the accused remained in custody during investigation or trial. Therefore, there is no question of benefit under Section 428 Cr.P.C.
44. Copy of the judgment be given to the appellant/accused persons free of cost. One copy of the judgment be sent to ld. Trial Court alongwith the trial Court record.
45. Original judgment be placed on the file of appeal no. 11/2015. Photocopy of judgment be placed on the files of appeals no. 12/2015 and 20/2015.
46. Files be consigned to record room after due compliance.
Announced in the open court
on 01.08.2015 (Sanjeev Jain)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Courts,
New Delhi
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