Delhi District Court
Kishore vs The State on 15 January, 2007
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IN THE COURT OF SH V.K. GOYAL, ADDL. SESSIONS JUDGE: DELHI.
CRIMINAL APPEAL NO. 43/2006.
KISHORE,
S/O SH.NAND LAL,
R/O.B-127, SHARDANAND COLONY,
BHALSWA DAIRY,
DELHI.
........ APPELLANT.
VERSUS
THE STATE ... RESPONDENT.
JUDGMENT:-
1. This is an appeal under section 34 of Bombay Prohibition of Begging Act, 1959, against the impugned judgment dated 27/09/2006 and order on sentence dated 29/09/06 passed by the learned trial court.
2. In brief, the facts are that accused was booked vide Kalandra u/s.4(1) BPB Act, 1959 and after recording the evidence, he was convicted vide judgment dated 27/09/2006 and order on sentence dated 29/09/06.
3. The impugned judgment and order on sentence have been challenged on various grounds.
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4. It is alleged that the sentence awarded to the appellant is harsh and against the facts on records.
5. It is further alleged that the family of the appellant is consisting of appellant himself, his wife and four children and old aged parents and appellant used to work to sale vegetable and work of beating of drum in party and festivals etc.
6. It is further alleged that the Ld.Trial Court has failed to consider the facts of the documents and character certificate.
7. It is further alleged that the Ld.Trial Court has failed to consider the facts that the appellant is not a beggar as alleged by the police and also failed to consider the fact that the Investigating Officer/Prosecution has not made any public witness, despite presence of public and falsely stated that no public witness/person agreed to join them.
8. It is further alleged that the Ld.Trial Court has failed to consider that there is no complainant in the case, who comes forward to say that the appellant was begging from the complainant at any time.
9. It is further alleged that the Ld.Trial Court has failed to consider that the witness in his statement/cross examination stated that he did not see anyone while giving alms to the accused.
10. It is further alleged that the Ld.Trial Court has failed to 3 consider the defence witnesses.
11. It is further alleged that the Ld.Trial Court has failed to consider that the appellant is first offender and never involved in any other case throughout his life.
12. It is further alleged that the applicant/accused has been involved in the case first time by the police, and he has no role in any crime. In view of the submissions made above, and as per the Hindu mythology and religious books like SHANI SHATRU NAHIM MITAR HAI written by Pt.Shyam Sunder Lal Vats, and SHANI KE NIMIT DAAN DHAKONT KO HI DIYA JAEGO, and SHANI MANGAL SHROTAM AND MAHARAJ DASHRATH KRIT SIDH SHANI SROT KATHA. The appellant is a Dhakot Brahmin.
13. It is thus prayed that the impugned judgment dated 27/06/2006 and order on sentence dated 29/09/06 be set aside.
14. I have heard learned counsel Sh.Ram Kumar Prabhakar for the appellant and learned APP for the State and have also gone through trial court record carefully.
15. Ld.counsel for the appellant has contended that in the statement of witness i.e. PW-1, it has been admitted by the witnessthat he did not see anyone giving alms to the accused. I have gone through the statement of witnesses i.e. PW-1 and PW-2. Both the witnesses 4 have stated that accused was begging. Begging is different and giving alms in pursuance of begging is the act in furtherance. In section 2 of the Act, begging has been defined where soliciting and receiving alms have been mentioned differently. Hence, the plea of the ld.counsel for the appellant is not forceful in any manner.
16. Secondly, ld.counsel for the appellant has contended that appellant be admitted to probation and in support has relied upon various judgements :
1. 1981 CAR 1 (SC) titled as Ved Parkash Vs. State of Haryana.
2. 1981 CAR 40 (SC) titled as Bhausaheb Kalu patil Vs. The State of Maharashtra.
3. 1981 CAR 152 (SC) titled as Dudh Nath Pandey Vs. State of Uttar Pradesh.
4. 1981 CAR 430 (SC) titled as Roshanall Burhanali Syed Vs. State of Gujarat.
5. 2004 CRI.L.J. 3109 titled as Nathu Ram and Mange Ram Vs. State.
17. I have gone through the provisions of section 5 of the Act. As per the provisions, if the court is satisfied with the circumstances of the case, that the person found to be a beggar, is not likely to beg again, it may after due admonition release the beggar on a bond for the beggar's 5 abstaining from begging and being of good behaviour, being executed with or without sureties as the Court may require by the beggar or any other person.
18. Considering the age of the appellant, who is aged 30 years old having a family of 10 to 12 persons residing at Bhalswa Dairy and studied upto 3rd or 4th class only and considering that he is having four children to maintain, I am of the opinion that the appellant be admitted to probation of good behaviour u/s.5(5) of the Act on furnishing a bond by the appellant giving an undertaking in respect of abstaining himself from begging alongwith a bond of Rs.5,000/- with one surety in the like amount for the period of one year subject to the report of Probationary Officer. Appeal is disposed of accordingly. ANNOUNCED IN THE OPEN COURT ON 10.01.2007.
( V. K.GOYAL) ADDL. SESSION JUDGE, DELHI.
6CR-43/06 10.01.2007.
Present :- Appellant in person.
APP for the State.
Vide my judgment announced of even date on separate sheets, I am of the opinion that the appellant be admitted to probation of good behaviour u/s.5(5) of the Act on furnishing a bond by the appellant giving an undertaking in respect of abstaining himself from begging alongwith a bond of Rs.5,000/- with one surety in the like amount for the period of one year subject to the report of Probationary Officer. Appeal is disposed of accordingly.
Report of the Probationary Officer be called for 15/01/07.
(V.K.GOYAL) ASJ/DELHI.
10.01.2007.
7CA-43/06 15.01.2007.
Present :- APP for the State.
Appellant in person with counsel.
Report received regarding the release of the appellant on probation. It is positive and it is submitted that the case may be considered to extend the benefits of the probation to the appellant. Accordingly, report is accepted. Bond furnished. Accepted. In case of default, the appellant will produce himself before the court for acceptance of the sentence. Trial court record be sent back with the copy of this order. Appeal file be consigned to record room.
( V.K.GOYAL ) ASJ/DELHI 15.01.2007.
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