Delhi District Court
State vs Chandra Shekhar on 12 February, 2024
IN THE COURT OF MS.SHEFALI BARNALA TANDON,
ADDITIONAL SESSIONS JUDGE-05, WEST, TIS HAZARI
COURTS, DELHI.
IN THE MATTER OF
CNR NO. DLWT01-009787-2019
SESSIONS CASE NO.703/2019
FIR No. 59/18
P.S ANAND PARBAT
U/S 308 IPC
STATE
VERSUS
Chandra Shekhar
S/o Sh.Satpal Abrol,
R/o C-16/2, Punjabi Basti,
Baljeet Nagar, Anand Parbat,
Delhi.
ORDER ON SENTENCE
12.02.2024 :
Present : Mr.M.A.Khan, Ld. Addl. P.P.for the State.
Convict is in person alongwith Sh.Inderkant Jha, Ld.
Counsel for the Convict.
Brief facts :
1.As per brief facts of the matter, convict Chandra Shekhar has been convicted of charge u/s 308 IPC vide Judgment dated 23.11.2023 as it was proved that on 05.02.2018 in between 09:00 PM - 10:00 AM at C- 16/2, Punjabi Basti, Baljeet Nagar, Anand Parbat, Delhi, he quarreled with Contd......2.
:2:the complainant Rajeev Kumar, who is his real brother and hit the complainant on his head with iron rod due to which the complainant sustained injuries on the right parietal region of his head.
2. Pursuant to the said Judgment, affidavits have been filed by the prosecution with regard to expenditure incurred by the State in prosecuting the present matter as well as by the convict with regard to his assets and income, in compliance of the Judgment passed by the Hon'ble High Court of Delhi in Crl.Appeal No. 352/2020 titled as Karan v. State of NCT of Delhi. The victim impact assessment report has also been filed by the DLSA, West, THC, Delhi.
Arguments on behalf of the Convict :
3. It is submitted by the Ld. Counsel for the Convict that the convict is a poor person and a first time offender. He has further submitted that it was a quarrel between brothers over property dispute which has been given colour of the criminal offence. He has further submitted that the complainant/victim had not sustained any grievous injury and the convict is feeling remorse and hence, he prays for leniency.
Arguments on behalf of the Prosecution :
4. It is submitted by the Ld. Addl. P.P. for the State that assault was committed upon the victim with iron rod and he sustained head injury. Further, it was not an assault at spur of moment rather it was a planned one. Hence, he has prayed for maximum punishment as per law.
Affidavits of Convict, Prosecution and VIR :
5. As per the affidavit of convict Chandra Shekhar, he is 45 years of age; married; educated till 10th class and is an electrician by profession Contd.......3.
:3:earning Rs.6,000/- per month. He is stated to be residing at C-16/2, Punjabi Basti, Baljeet Nagar, Anand Parbat, Delhi which is the address of complainant even, being the family property.
6. As per the affidavit of Prosecution, the expenses incurred by the State in prosecution of the present matter is Rs.12,455/- in total.
7. As per the Victim Impact Report, the affidavit of the convict has been duly verified and during course of inquiry, it was surfaced that convict is residing in the house which is in his father's name. There are two family members of the convict i.e., his daughter aged 15 years and father. It is further stated that wife of convict has already expired in the year of 2018. The convict is an electrician by profession and only earns Rs. 6,000/- per month. There is no movable and immovable property in his name though he has a bank account in Punjab & Sindh Bank with closing balance of Rs.8,118/-. Certified copy of bank account statement has been annexed alongwith the report.
8. Further, as per Victim Impact Report, the victim Mr. Rajeev is 53 years of age and married. The victim is property dealer by profession and earns Rs.25,000/- per month. He sustained simple injury in the present offence and stated to have incurred Rs.20,000/- to Rs.22,000/- in medical expenses, Rs.20,000/- to Rs.22,000/- in legal expenses and Rs.15,000/- to Rs.18,000/- in traveling expenses. The total loss of income is stated to be Rs.6 lacs. It has lastly stated in the Victim Impact Report that a compensation may be granted u/s 357 Cr.P.C. by the Court, however, the Court may not proceed under 357(A) Cr.P.C. unless the offence falls under any of the category of schedule to Part-I of Delhi Victim Compensation Scheme, 2018 since mere simple injury is not covered by the Scheme. Contd.......4.
:4:Aggravating and Mitigating points :
9. As per record as well as submissions, the convict assaulted the complainant/victim Mr. Rajeev Abrol with an iron rod due to which he sustained injury on his head.
10. However, admittedly, the complainant and convict are real brothers and the present dispute was stated to be over family property which is still in the name of father of both complainant and convict. The father is stated to have been residing with the convict. Further, as per the MLC, there is only simple injury sustained by the complainant and the treatment was done in Lady Hardinge Medical College, which is a govt.
hospital, though he has stated in the Victim Impact Report that he has incurred Rs.20,000/- to Rs.22,000/- in medical expenses and Rs.15,000/- to Rs.18,000/- in traveling expenses. It has also been stated in VIR that the complainant incurred Rs.20,000/- to Rs.22,000/- in legal expenses though as per the entire record, he has not pursued the present matter independently and the prosecution was only conducted through State. The loss of income is also stated to be Rs.6 lacs by the complainant which is also far fetched. Whereas the convict is a poor man who is working as an electrician and only earning Rs. 6,000/- per month while having the liability of minor daughter as well as aged father. He does not have any movable or immovable property and the bank account shows only the credit balance of Rs.8,118/-. There is no previous involvement/conviction report which has been brought on record.
Observation/Sentence :
11. Section 308 IPC states that :
'Attempt to commit culpable homicide - Whoever does any Contd.......5.:5:
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.'
12. Considering the aggravating as well as mitigating factors, before awarding sentence to the convict, this Court deemed it appropriate to look into the provision of Section 4 of the Probation of Offenders Act, which reads as under :
"4. Power of court to release certain offenders on probation of good 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 Provided that the court shall not direct such release of an Contd.......6.:6:
offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2)Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"
13. Similarly Code of Criminal Procedure also provides the release of convict on probation of good conduct or admonition. Relevant Section reads as under :
"360. Order to release on probation of good conduct or after admonition
1. When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a terms of seven years, or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering Contd.......7.:7:
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; xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx"
14. This Court place reliance upon following judgments rendered by the Hon'ble Apex Court.
(i) In State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others reported in (2004) 7 SCC 659 it has been observed as under:
"The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbors. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour."
(ii) Hon'ble Apex Court in Sita Ram Paswan & Anr vs State Of Bihar reported in (2005) 13 SCC 110, has held that :
"For exercising the power which is discretionary, the Court Contd.......8.:8:
has to consider circumstances of the case, the nature of the offence and the character of the offender. While considering the nature of the offence, the Court must take a realistic view of the gravity of the offence, the impact which the offence had on the victim. The benefit available to the accused under Section 4 of the Probation of Offenders Act is subject to the limitation embodied in the provisions and the word "may"
clearly indicates that the discretion vests with the Court whether to release the offender in exercise of the powers under Section 3 or 4 of the Probation of Offenders Act, having regard to the nature of the offence and the character of the offender and overall circumstances of the case. The powers under Section 4 of the Probation of Offenders Act vest with the Court when any person is found guilty of the offence committed, not punishable with death or imprisonment for life. This power can be exercised by the Courts while finding the person guilty and if the Court thinks that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, benefit should be extended to the accused, the power can be exercised by the Court even at the appellate or revisional stage and also by this Court while hearing appeal under Article 136 of the Constitution of India."
15. A joint reading of Section 4 of the Probation of Offenders Act and Section 360 of the Code of Criminal Procedure and also the judgment referred above, this Court finds that the Convict is having a permanent place of abode, convict is a first time offender and also he is repenting on his acts, this is fit case to release the convict on probation of Contd.......9.
:9:good conduct as a chance be given to him. Therefore, convict Chandra Shekhar is released on probation of good conduct for a period of two years subject to furnishing the probation bond in the sum of Rs.10,000/-with one surety in the like amount. In the meanwhile, convict is directed to maintain peace and good behaviour.
Compensation to Victim/State :
16. The Court cannot lose sight of the complainant/victim and as per the affidavit on record the complainant had incurred Rs.20,000/- - Rs.22,000/- towards his medical treatment and it is also stated he has suffered financial loss of Rs.6 lacs, however, the same seems to be accelerated as the complainant has only sustained simple injury as per the medical opinion. Even the convict does not have financial capacity to pay any amount of compensation and the same cannot be granted u/s 357A Cr.P.C. since the offence/injury sustained is not covered in the scheme, as it does not fall under any of the category of schedule to Part-I of Delhi Victim Compensation Scheme, 2018. Therefore, the Court cannot grant compensation to the victim or State in the present set of facts & circumstances.
17. Time sought by the Ld. Counsel for the convict for filing Probation bonds till tomorrow. Heard. Considered.
18. Put up the matter on 13.02.2024 at 02:00 PM.
Digitally signed by SHEFALI SHEFALI BARNALA
BARNALA TANDON
Date:
TANDON 2024.02.13
15:11:01 +0530
ANNOUNCED IN THE OPEN (SHEFALI BARNALA TANDON)
COURT ON: 12.02.2024 ASJ-05 (West), THC, Delhi