Delhi District Court
State vs . : Dinesh Walecha Etc. on 20 February, 2016
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, NEW DELHI
FIR No. : 127/10
U/s : 323/341/34 IPC
PS : Sunlight Colony
State Vs. : Dinesh Walecha etc.
JUDGMENT
a The Sl. No. of the case : 100/3/11
b The date of commission : 14.04.2010
c The date of Institution of the case : 01.11.2010
d The name of complainant : Manoj Arora
e The name of accused 1 Dinesh Walecha S/o Late R.L.
Walecha R/o H.No. 132A, Pocket
C, Sidharth Extension, New Delhi.
2 Naresh Walecha S/o Late R.L.
Walecha R/o H.No. 132A, Pocket
C, Sidharth Extension, New Delhi.
f The offence complained of : 323/341/34 IPC
g The plea of accused : Pleaded not guilty
h Arguments heard on : 27.01.2016
i The final order : Convicted u/s 323 IPC.
Acquitted u/s 341 IPC
j The date of judgment : 20.02.2016
FIR No. 127/10 1 of 22
BRIEF STATEMENT OF REASONS FOR DECISION:
1 The aforesaid accused persons have been sent for trial on the allegations
that on 14.04.2010 at about 06:50 PM ( hereinafter the date and time of incident) at House No. 131B, in front of Pocket C, Sidharth Extension, New Delhi ( hereinafter spot of incident) within the jurisdiction of P.S. Sunlight Colony, both in furtherance of their common intention wrongfully restrained and caused injuries on the body of complainant and thereby committed offence u/s 323/341/34 IPC. Investigation was conducted and charge sheet was filed in the court on 01.11.2010.
Allegations in detail To discuss the allegations in a more detailed manner, the FIR was lodged by the complainant PW3 on the allegations that he resides at house No. 131 B, Pocket C, Sidharth Extension and on the day of incident he had parked his car near his house. At that time his neighbour Dinesh ( accused) came and protested the wrong parking done by the complainant and told the complainant to remove his car. Complainant also retorted that the place where he has parked his car does not belong to the accused. At that time co accused Naresh brother of accused Dinesh also came and both of them have restrained the complainant and further fisted the complainant. Accused Naresh also hit the complainant on his face due to which his tooth got loosened and the complainant asked for action from the police as both the accused have restrained him and hurt him.
FIR No. 127/10 2 of 22 2 Notice u/s 323/341/34 IPC was framed upon both the accused on 08.02.2010, to which they pleaded not guilty and claimed trial. 3 In order to substantiate its case, the prosecution has examined 8 witnesses.
PW1 is Chhabila, who being an independent witness has deposed that on 14.04.2010 at about 6.45 pm, accused Dinesh whom he correctly identified told the complainant Manoj Arora for removing the vehicle from the gate of house no. 132B, Sidharatha Extension, Delhi. It is further deposed by witness that accused also abused the complainant and when he tried to intervene in the matter, the other accused Naresh whom he also correctly identified, came at the spot and hit the complainant on his face with fist blow, due to which blood oozed out from the mouth of the complainant and one tooth of complainant was also got loosened. However, he intervened and separated the complainant and accused. Thereafter, he alongwith the complainant went to the doctor and got the first aid. The complainant called the police, police came at the spot, enquired the complainant , shifted the complainant to the hospital and IO of the case also got recorded statement of PW1 to this effect.
PW2 is HC Roop Singh, who being the Duty Officer, has proved the registration of FIR in the present case vide Ex. PW2/A and his endorsement on the rukka vide Ex. PW2/B. PW3 is Manoj Arora, who being the complainant in the present case has deposed that in the year 2010 on 14.04.2010 at around 6.30/6.45 pm he was standing in front of his house and in the meanwhile accused Dinesh Walecha told him to remove his car ( Esteem) parked in front of his house. PW3/Complainant FIR No. 127/10 3 of 22 asked the accused to wait for a while as at that time he was not having the keys of the car with him upon which accused Dinesh manhandled and abused him. Thereafter, accused Naresh also came there and both the accused started beating the complainant with fist blows. Accused Naresh punched him on his face due to which his one tooth was broken. He made call to the PCR and he thereafter on his own immediately rushed to the Dentist and got his medical examination done from there vide prescription slip Mark A. In the meanwhile police also reached at the Clinic at 133A, Pocket C, Sidharth Extension and thereafter alongwith police he went to Trauma Centre where his medical examination was done and at around 12 midnight he reached back home. PW1 has further deposed that on the same day at around 7.30/ 8 pm, IO recorded his statement/complainant vide Ex. PW3/A. PW1 has also deposed that from the hospital they reached at police station where accused persons were also called through police official and both the accused were arrested vide memos Ex. PW3/B and PW3/C and IO of the case has also prepared site plan at his instance.
PW4 is Ct. Kartar Singh , who being deputed with the IO of the case on the date of incident has deposed about the investigation done by IO in the present case and exhibited the documents prepared during the course of investigation.
PW5 is Dr. Gurinder Mohan Singh Sambhi, who being the doctor/dentist has deposed that on 14.04.2010 at about 7 pm, one Mr. Manoj Arora i.e. complainant came to his clinic who was bleeding from his mouth, on inquiry it was revealed that he has suffered a fist blow on his face and upon FIR No. 127/10 4 of 22 examination upper front central tooth of the complainant was found to be displaced into the mouth. Xray of the complainant was also done but no fracture was visible in the Xray film. Thereafter the complainant was administered local anesthesia and PW5 proceeded to reposition the tooth to its original position and during the process stainless steel wire splint alongwith composite material were also applied. Thereafter the patient was prescribed an enzyme with pain killer vide prescription Mark A. IO also recorded his statement to this effect.
PW6 is HC Manoj Kumar, who being deputed Duty Office on the date of incident has deposed about receiving a DD No. 18, handing over same to Ct. Kartar to be sent to Hc Devender and exhibited the said DD vide Ex. PW6/A. The witness on being cross examined by Ld. APP has admitted the DD no. as 18A instead of 18.
PW7 is Rajender Singh, who being the Record Clerk has proved the preparation of MLC bearing No. 205638 dated 14.04.2010 by Dr. Vikas Kaushal.
PW8 is ASI Devender Singh, who being the IO of the present case has deposed about the investigation done in the present case by him and exhibited the documents prepared during the course of investigation and apart from the aforesaid documents he has further exhibited site plan Ex. PW8/A. 4 Statements of accused persons were recorded U/s 313 Cr.PC., wherein they took the plea of false implication and pleaded innocence and stated that the complainant himself has been harassing the residents of the society by parking his car wrongly alongwith PW5 who also indulges in likewise activities and since they have previously made complaint against the complainant, therefore, FIR No. 127/10 5 of 22 complainant in connivance of PW5 has got them implicated falsely in this case. Both the accused have preferred to lead evidence in their defence and have examined DW1 Smt. Indira Dhall, DW2 Inderjeet Walecha, DW3 HC Ram Kumar, Reader to SHO P.S. Sunlight Colony to depose about the various complaint received against the complainant /PW3 about wrong parking and DW4 Naresh Walecha to exhibit the photographs about wrong parking of the car in front of house of the accused, in their defence.
5 I have heard Ld. APP for the State and Ld. Defence counsel for both accused as well as gone through case file very carefully.
6 The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused persons.
7 Ld. Defence counsel on the other hand has argued that the accused are being wrongly associated with the offence in question and as such the accused are entitled to acquittal in the present case.
8 I have perused the case file very carefully and have duly considered the respective arguments.
9 It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the FIR No. 127/10 6 of 22 trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
10 Relevant Law:
Section 319 IPC Hurt Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
Section 321 IPC Voluntarily causing hurt Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 323 IPC Punishment for voluntarily causing hurt Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished 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.
Ingredients of the offence of voluntarily causing hurt:
(i) An act is done by the accused which has caused bodily pain, disease or infirmity to the victim.
(ii) Such act has been done by the accused either with the intention to cause hurt or with the knowledge that the accused is likely to cause hurt to the victim.
Section 339 IPC Wrongful restraint - whoever voluntarily obstructs FIR No. 127/10 7 of 22 any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
Section 341 IPC Punishment for wrongful restraint Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both.
11 Analysis of the evidence:
Now it is to be seen whether the prosecution has been able to prove the ingredients by leading such evidence beyond reasonable doubt.
(i) An act is done by the accused which has caused bodily pain, disease or infirmity to the victim.
It is clear from the evidence of PW1 the alleged eyewitness Sh. Chhabila who is stated to be working with the complainant and from the evidence of PW3 complainant that both the accused beat the complainant with fist and blows. Accused Naresh hit the complainant on his face by such means and due to the said fact upper front central tooth of the complainant was displaced into the mouth. Such observation has been made in the MLC No. 205638. Though such MLC has not been exhibited, however, it is settled law that one of the reason for exhibiting a document is identification which different from the proof of the same. The MLC No. 205638 clearly makes the medical examination of the complainant identifiable and it is clear from the MLC that the accused has suffered laceration and upper incisor injury which means displacement of the upper central FIR No. 127/10 8 of 22 tooth. I hasten to add that even if the MLC is not read into the evidence, in my view proof of the same is not necessary to show that the accused suffered bodily pain which is one of the necessary ingredients u/s 319 IPC r/w 321 IPC. It has been stated by PW1 as well as PW3 that the complainant Manoj Arora was punched on his face due to which blood came out and it is natural that a person will suffer bodily pain on being fisted on the face. In this regard evidence of PW5 Dr. Sambhi is also an important piece of corroborative evidence. PW5 has deposed that on the day of incident at about 7 pm he saw the complainant PW3 bleeding from his mouth due to receiving of a blow on the face. His evidence is relevant as res gestae as provided u/s 6 of Evidence Act. He provides corroboration of a contemporaneous event happening soon after the crime i.e occurrence of bleeding due to displacement of tooth. Thus there is sufficient corroboration of the fact of receipt of blow on the face on being fisted by both the accused as stated by PW3 complainant, in the testimony of PW1, contents of FIR Ex. PW2/A, PW5, PW4 Ct. Kartar Singh and PW8 IO that the complainant was taking medical aid at the clinic of Dr. Sambhi. PW4 and PW8 have deposed this relevant fact of visit by complainant to Dr. Sambhi which shows the conduct of the complainant soon after the receipt of blow on his face. As there is sufficient corroboration of the testimony of PW3/complainant, it will not matter even if the IO has not seized the cloths of the complainant which were stated to be coloured with the blood. Also it is settled law that the FIR is a corroborative piece of evidence of the witness on whose statement the FIR was lodged if that witness is examined. Section 157 of Evidence Act is the genesis of this law. However, for FIR No. 127/10 9 of 22 the sake of reference regarding the settled law, the same is provided in Madusudhan Singh vs. State 1997 SCC (CRI) 187 as per which FIR can be used for corroborating or contradicting the informant if he is examined as a witness. In the FIR 127/2010 it has been clearly stated by the complainant that both the accused stopped the complainant and thereafter accused Naresh hit the complainant with fist and accused Dinesh also attacked the complainant with fist and kicks due to which his tooth got loosened. Hence, the FIR Ex. PW2/A provides corroboration for the necessary particulars regarding the fact that both the accused hit the complainant with fist blows and accused Naresh also hit the complainant on his face. Therefore, it is proved that bodily pain was caused to the complainant PW3 on being attacked by both the accused with common intention to teach the complainant a lesson for wrong parking of the car and due to which common intention the coordinated attack was made by both the accused. Hence, this ingredient stands proved.
(ii) Such act has been done by the accused either with the intention to cause hurt or with the knowledge that the accused is likely to cause hurt to the victim.
It is also proven that the attack by both the accused was coordinated, both the accused came together, picked up a fight on the car parking row and attacked the complainant with a premeditated plan to teach a lesson so that in future complainant does not park his car wrongly and thus is restrained from blocking the way of others. The motive is clear from the statement of the FIR No. 127/10 10 of 22 accused made u/s 313 Cr.P.C as well as from the defence evidence led by the witnesses on behalf of the accused wherein it has been admitted that the complainant used to park his park wrongly due to which various neighbours including the accused were unhappy with the complainant. Hence, this ingredient that the act of causing wrongful act was caused common intention to cause hurt to the complainant stands proved.
12 Discussion of the arguments on behalf of the defence:
Ld. Counsel for the accused submitted written arguments in support of the oral arguments before the judgment and vehemently argued in favour of acquittal of the accused by stating that there are various circumstances to show that both the accused have been falsely implicated and deserve an acquittal. The discussion is as follows.
(i) It is submitted by the counsel that PW1 and PW3 complainant have been examined by the prosecution as the only two eyewitnesses in the case. However, a closer look of the testimony will show that they differ in material particulars. PW3 has testified about the incident and the attack committed by the accused persons but he does not mention that his employee PW1 was present at the time whereas PW1 states that he tried to remove the vehicle.
However, Ld. Defence counsel has not put forth this question or suggestion either to PW1 or to PW3 and hence in absence of any chance of explanation given to the said witnesses in the cross examination, the said contradiction will not go against the prosecution case. Even otherwise this FIR No. 127/10 11 of 22 contradiction in my view does not go to the root of the matter to show that the complainant was not hurt by the accused persons. Hence, this argument does not sound meritorious.
(ii) The next argument of the Ld. Defence Counsel is that MLC or the prescription of PW5 Dr. Sambhi who is the friend of PW3 and a Dentist who treated PW3 complainant have not been exhibited and they cannot be relied upon.
This point has already been dealt with in ingredient (i) of Section 321 IPC above in para 11 and need no further discussion.
(iii) Thereafter Ld. Counsel has highlighted some more contradictions regarding the place the complainant PW3 went after the incident and what immediately followed after the incident. Ld. Counsel has stated that the complainant has stated in the examination in chief that he went to his home at about 12 midnight from AIIMS Trauma Centre but in the same vein he stated that from the hospital he went to the police station. A person cannot go simultaneously to two places. He can either go at home or to police station from the AIIMS Trauma Centre. Thereafter, Ld. Counsel has stated that there is material contradiction regarding the manner of arrest of the accused persons and preparation of their arrest memos in as much as PW3 has stated at one place that he after the hospital went to the police station where the accused persons were also called and thereafter arrested whereas PW4 has stated that after visiting the hospital they came back to the spot of the incident where accused persons were standing and where they were arrested. As per the arrest memo the place of arrest is shown at House No. 131B, Pocket C, Sidharth Extension. PW8 IO also states FIR No. 127/10 12 of 22 the same version regarding the manner of arrest as PW4 Ct. Kartar. It is further stated that both PW1 and PW3 have claimed that after the accused persons protested the wrong parking by the complainant/PW3, both of them have stated that they tried to remove the car. It is further submitted that whereas PW4 Ct. Kartar states in examination in chief that he alongwith IO reached doctor Sambhi's Clinic where PW3/complainant was taking first aid but PW8 IO has stated that they reached the house of the complainant on receiving the information of quarrel. It is also stated that there is no personal search memo of accused available on record nor any application for medical examination. PW4 claims that there was no injury marks on the face of the complainant but PW1 and PW3 have stated that the tooth was broken. Further it is stated that the arrest memo of both the accused as stated by PW4 were written with one pen but the document show they were written by different pens have different inks.
As far as injury marks is concerned, even PW1 and PW3 have not stated that there was injury mark on the face which is different from breaking of the tooth. As far as non availability of the personal search memo and application for medical examination of complainant are concerned it does not go to highlight any lacuna in uncovering the facts in investigation. Further this court has not placed reliance on the MLC to base its judgment as the same has not been exhibited. In my view these contradictions do not go to the root of the matter because one has to remember that human being does not have a computer memory to remember each and every details meticulously after about 10 months from the date of incident to when the witnesses came to depose. Also one has to remember FIR No. 127/10 13 of 22 that falsus in uno falsus in omnibus is a dangerous maxim to follow as there are many circumstances due to which memory may fade and every detail may not be correctly furnished. However, if the testimony withstands regarding the material particulars and there is no reason to doubt the testimony of the witness, then such contradictions will not be fatal to the prosecution case. Though it can be stated that PW3 is an interested witness because the incident allegedly happened with him but if he sounds credible then there is no reason not to place reliance upon his testimony, otherwise there can be no conviction on the basis of the testimony of interested witness because in every trial every witness comes with a certain interest but it does not make the testimony illegal, inadmissible or unreliable. Hence, this argument of the Ld. Counsel does not hold any water.
(iv) It is further submitted by the Ld. Defence counsel that the testimony of all the material witnesses have been recorded six days after the alleged incident and as per 2011 (2) JCC 819 judgment of Delhi High Court in para 10 it has been held that inordinate delay in recording the statement of material witnesses would make the same unreliable and accused have to be acquitted.
In my view the judgement of Hon'ble Delhi High Court was given in that particular set of circumstances and do not apply to the facts of the case in hand where as already stated, all the material ingredients have been proved by the testimony of prosecution witnesses and there is no motive tainted in nature so as to show that the accused persons have been falsely implicated by the delay in recording the statement. Even otherwise there is no delay in recording the FIR in which all the material details deposed by the complainant in court have been FIR No. 127/10 14 of 22 provided and which corroborates all the material particulars. Hence, this argument does not sound meritorious.
(v) It is further stated that as per the testimony of PW1 other two employees Aalam and Arun were present but their testimony has not been recorded but said fact is not stated by the complainant. Further the IO has also admitted that there was a crowd gathered at the spot but he did not record the statement of the said witnesses.
In my view this point is not worth examining but since it has been argued, it would be pertinent to mention that PW1 has stated this fact only when he was asked about the same in the cross examination but PW3 has not been asked this question in the cross examination. Even otherwise it is settled law that a particular number is not required to prove the case and even if the testimony of a solitary witness sounds credible, conviction can be based upon the same. Hence, this argument does not sound meritorious.
(vi) It is further stated that PW7 Record Clerk has not given any explanation as to why the doctor who made MLC could not be produced.
The counsel is not at liberty to take the support of this argument as this question was not asked from this witness in cross examination. Even otherwise as already stated this court has not placed reliance on the MLC alone for basing its conviction but has placed reliance on the testimony of the witnesses which sounds true and reliable in material particulars.
(vii) It is further submitted that incident pertains to FIR No. 127/10 15 of 22 14.04.2010 but PW4 Ct. Kartar who proceeded to the spot alongwith the IO regarding DD 18A about the incident, he states that he was posted on 15.04.2010 at PS Sunlight Colony hence he cannot be present at the spot.
The counsel is not at liberty to take the support of this argument as this question was not asked from this witness in cross examination and further it appears to be a typographical error in the total context of the case.
(viii) It is further submitted that as per PW1 the spot was outside the house 132B, but as per PW4 the spot was at the house of the complainant 131B.
The counsel is not at liberty to take the support of this argument as this question was not asked from this witness in cross examination. Even otherwise as both the places are very near to each other, it will be mere hairsplitting exercise to rely on this point advanced by the counsel.
(ix) It is further submitted by the defence counsel that PW8 did not investigate about the car as to the place where it was parked which is the origin of the incident and it shows that investigation was casual and hence accused persons cannot be convicted on such investigation. It is further submitted that there is some difference in time as to when PW4 and PW8/IO the police officials who reached the spot on receipt of information of quarrel, as to when they reached the AIIMS Trauma Centre, when they came back to the spot, when the rukka was prepared, when the Ct. went for registration of FIR, when he came back to the spot after receiving the copy of the FIR, till what time they reached the spot and when the investigation was completed.
FIR No. 127/10 16 of 22 Here it would be pertinent to mention that one should remember that police officials have multifarious duties and conduct investigation in many cases and it cannot be expected that they will remember such minute details in every case of completed investigation. Ld. Counsel has not highlighted that the timings are so impossible that the event cannot take place or that the FIR has been falsely prepared. Further in my view though the investigation is not exactly done in a professional manner but lacuna in investigation cannot exculpate the accused if it appears that the police had no motive to falsely implicate the accused. Also if evidence is otherwise credible, minor contradictions in evidence do not go to the root of the matter. It is settled law that loopholes in the investigation do not help the accused if otherwise the evidence is sufficient and credible to convict the accused thereon.
(x) It is further stated that statement of PW1 and PW5 were recorded by the IO without issuing any notice u/s 160 Cr.P.C.
In my view if a witness is otherwise ready to participate in the investigation and to give the statement, then under no law issuance of notice u/s 160 Cr.P.C is mandatory.
(xi) It is further submitted that the accused persons have been falsely implicated because the complainant had a motive to do so and because the complainant was aggrieved with the accused persons that they have dared to protest against him against wrong parking of the car. In this regard the accused persons have also led defence evidence in the testimony of DW1 Indira Dhal and DW2 Madan Kesri who have testified that there are various complaints FIR No. 127/10 17 of 22 againt the complainant for wrong parking but no action was taken.
In my view motive does not have any significance when occurrence of the offence is proved by direct evidence. On the other hand this admitted motive by the accused persons may infact suggest that they had a cause to pick up a fight against the complainant to teach him a lesson for wrong parking. Hence, again this argument of Ld. Counsel does not hold any water. 13 In the end it would be apt to mention that though there are contradictions and omissions in the testimony of complainant/PW3 about absence of PW1, breaking of tooth as stated by PW1 and PW3 instead of loosening of tooth, manner or genesis of incident and there are some lacunas in the investigation as discussed above but many times such contradictions infact assure the court that prosecution witnesses were not tutored and court can place reliance on their testimony to base conviction if the same is found credible in material particulars. As far as the use of different vocabulary regarding the description given by PW1 and PW3 that the tooth was broken whereas PW5 who is professional Dentist states that the tooth was loosened or displaced, it is not to be given much importance because firstly this is only a minor contradiction arising due to use of language by a layman on one hand and the professional on the other and secondly it is already stated that the testimony of witnesses sounds truthful in material particulars. In view of the aforesaid circumstances, the accused persons are convicted u/s 323 IPC r/w 34 IPC as it is proved that the offence of voluntarily causing hurt was done with a premeditated and common intention. However, the ingredients of section 339 IPC regarding the offence of wrongful restrained are completely different from FIR No. 127/10 18 of 22 section 321 IPC which defines the offence of voluntarily causing hurt. In section 321 IPC intention should be to voluntarily cause hurt and u/s 341 IPC the intention is to voluntarily restrain a person from proceeding in a particular direction where the overriding or dominant intention is to voluntarily cause hurt by beating, that act suo moto cannot fall within the four corners of the offence u/s 341 IPC where there is no particular intention to voluntarily obstruct a person from going in a particular direction. Hence, the accused is acquitted for allegation u/s 341/34 IPC because it has not been proved by the prosecution that there was any particular intention of the accused to voluntarily obstruct the victims from proceeding in any particular direction and only intention was to have quarrel and beat the victims. There is no indication of the direction of which the accused wanted the complainant to keep from going. Let the accused be heard on the point of sentence in respect of offence 323/34 IPC.
Announced in the open (Ashok Kumar)
Court on 20.02.2016 MM(South East)07,
Saket, New Delhi.
FIR No. 127/10 19 of 22
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, NEW DELHI
FIR No. : 127/10
U/s : 323/34 IPC
PS : Sunlight Colony
State Vs. : Dinesh Walecha etc.
ORDER ON POINT OF SENTENCE
Presence : Ld. APP for the State,
Both Convicts in person with proxy counsel Sh. Syed Nooruzzama. Vide separate judgment dated 20.02.2016, both the convicts has been convicted for offences u/s 323 IPC r/w 34 IPC. It is pertinent to note that there is no provision in the Cr.PC which mandates the postponement of the sentence to another date after a judgment of conviction. Further in my view there is nothing in the case which needs inquiry on any point which requires postponement of sentence for the purpose of analyzing aggravating or mitigating circumstances in the sentence.
Heard on point of sentence.
Ld. APP for the State says that no leniency should be shown in sentencing the convicts and maximum sentence should be imposed upon them as provided under law.
FIR No. 127/10 20 of 22 Ld. Counsel for both the convicts says that both the convicts are real brothers and have family to support consisting of old aged widow mother, wife and children. Convict Dinesh Walecha is self employed and convict Naresh Walecha is working as Principal in Shivnand Public School, Ashram and also does part time business in property dealing. The convicts are not a previous convicts. Hence the convicts be given benefit of probation as per the Probation of Offenders Act.
I have heard both the counsel for convicts as well as Ld. APP for the State. The purpose of sentencing after conviction is a balancing act. On one hand, punishment should be sufficient to deter the accused not to repeat the offence in future and become a good member in the society. On the other hand, the punishment should not be too harsh which results in accused becoming a hardcore criminal.
In my view the accused persons are not entitled for probation which is a discretionary power as per the special provisions of the Probations of Offenders Act. Probation should be granted when the accused persons are repentant and when seeing their circumstances it might be expected that they were driven with rage and hence the offence was committed. In the present case the offence was committed in a premeditated manner. Further the neighbours cannot be allowed to take law into their own hands and sort out the dispute by fighting as this will encourage antisocial elements and a disorderly behaviour in the society. In these circumstances a deterrent punishment should be given to discourage this conduct in future. Accordingly, in view of above, both the convicts are directed to undergo FIR No. 127/10 21 of 22 one month RI each and also to pay fine of Rs. 1000/ in total. In default of payment of fine, the convicts are directed to undergo one month RI in addition to the substantive sentence of one month for offence u/s 323/34 IPC. Hence in case of non payment of fine, total sentence will be of two months RI. However, in view of the facts and circumstances the fine of Rs. 1000/ will be paid as compensation to the complainant/victim. A separate copy of judgment and order on sentence be provided to Counsel of convicts free of cost. File be consigned to record room.
Announced in the open (Ashok Kumar)
Court on 20.02.2016 MM(South East)07,
Saket, New Delhi.
FIR No. 127/10 22 of 22