Delhi District Court
State vs 1.Braham Dutt S/O Sh. Ramji Lal, on 20 March, 2009
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IN THE COURT OF SH. DILBAG SINGH PUNIA: ADDL. SESSIONS
JUDGE 01 (E)/ KARKARDOOMA COURTS: DELHI.
Sessions Case No. 140/07
Date of institution: 01.12.2007
Date on which reserve for order: 06.3.2009
Date of delivery for order: 06.03.2009
State V/s 1.Braham Dutt S/o Sh. Ramji Lal,
R/o 21/194, Trilok Puri, Delhi.
2.Ramji Lal S/o Sh. Jasgi Ram,
21/194, Trilok Puri, Delhi.
3.Ashok Kumar S/o Sh. Ramji Lal,
R/o 21/194, Trilok Puri, Delhi. (Acquitted on 17.9.08).
4.Satish Kumar S/o Sh. Ramji Lal,
R/o 21/194, Trilok Puri,
Delhi. (Acquitted on 17.9.2008)
FIR No. 317/07
PS Mayur Vihar
U/s 307/506/34 IPC & 25 of the Arms Act.
JUDGMENT:
1. Case of the prosecution as disclosed from the report under Section 173 Cr.P.C is to the effect that on receipt of DD No.21 A on 15.8.2007, SI Girdhari Lal alongwith Ct. Shiv Kumar reached the spot situated at 21/163, Trilok Puri, Delhi. He came to know that injured Sandeep had been removed to LBS Hospital. SI reached LBS Hospital and collected MLC No.6537/07 of injured Sandeep. Doctor had kept injury under observation. SI Girdhari Lal recorded the statement of Sandeep, the crux of which is being given infra.
2. Sandeep stated in Ex.PW1/A that he had come out from his house at about 1.45 p.m. after hearing the noise of kite flying. He saw that Braham Dutt @ Tunni was standing outside his gate. When Sandeep was talking on his 2 mobile, Braham Dutt attacked Sandeep with a knife and uttered to the effect that due to meddling in the affairs of others, consequences will be from bad to worst (Isse bhi bura haal hoga). Sandeep fell down and was removed LBS Hospital, by his neighbour Monu. Sandeep further stated that on 12.5.2007, a quarrel had taken place between Braham Dutt and Promila in which Sandeep had intervened alongwith some others. That Vikas, his brother was given beatings by Braham Dutt and his family members. That Ashoki, Satish and his father Ramji Lal were arrested u/s 107/151 Cr.P.C. That Braham Dutt had attacked him in order to take revenge. In the end it was stated that Satish and Ashok had caught hold of him and Ramji Lal had threatened to kill.
3. On the above discussed statement of Sandeep (Ex.PW1/A), SI Girdhari Lal made his endorsement Ex.PW4/B and got the case registered u/s 307/34 IPC. In Ex.PW4/B, it was recorded that SI Girdhari Lal had discussed about the injury of Sandeep with the doctors at Kailash Hospital Noida and the doctors had told him that Sandeep had sustained deep wounds. It also stands mentioned that investigation was kept in abeyance with regard to DD No.21 A.
4. I.O. SI Girdhari Lal prepared site plan of the spot, recorded the statement of witnesses and after collecting proofs, arrested the accused persons. He conducted the personal searches of the accused persons, recorded the disclosure statement of accused Braham Dutt and recovered the weapon of offence at the instance of accused Braham Dutt. Sketch of the knife was prepared and it was seized vide seizure memo. Knife was kept in a cloth and converted into a cloth pullanda which was sealed with the seal of a GLK. 3 SI collected the result of MLC , in which nature of injury was opined as grievous. Accused Ramji Lal was arrested formally on 29.9.2007. Clothes of injured were deposited in the malkhana and after conclusion of requisite investigation, challan was put in court.
5. Ld. M.M.after compliance of requirements of Section 207 Cr.P.C., committed the case to the Ld. Sessions Judge and it was ultimately allocated to my Ld. Predecessor.
6. My Ld. Predecessor on 19.12.2007 , framed charges against the accused persons namely Braham Dutt, Ashok and Satish u/s 307/34 IPC. Charge for the offence u/s 506 IPC was framed against accused Ramji Lal. Charge was framed against accused Braham Dutt for the offence u/s 25 of Arms Act. All the accused persons pleaded not guilty and claimed trial.
7. To substantiate the charge, prosecution has examined PW1 Shri Sandeep Singh, PW2 Shri Monu, PW3 Const. Anil Kumar, PW4 SI Girdhari Lal, PW5 Dr. S.Prashad, PW6 SI Shahid Khan and PW6 Col. Paikary.
8. PW1 Shri Sandeep Singh is the material eye witness of the case on the testimony of which final outcome of the case hinges. He has testified about the manner in which he was attacked. He has proved his report as Ex.PW1/A. He has also testified about his remaining admitted in the hospital for about 14 to 15 days. He has identified the pant, shirt and baniyan as Ex.P1 to Ex.P3.
9. PW2 Shri Monu is the witness of post incident stage. He has removed the injured to LBS Hospital on his motorcycle. He has testified that Sandeep was not in his senses.
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10. PW3 Const. Anil Kumar is a witness who has remained associated with the IO in the investigation. This witness has stated that he had been to LBS Hospital on 15.8.2007 and again joined the investigation on 20.8.2007. He has testified that accused Braham Dutt, Ashok and Satish were arrested from a th place near 17 Block, Bara Park, vide arrest memos Ex.PW3/A to Ex.PW3/C respectively. He has proved the personal search memos as Ex.PW3/A1 to Ex.PW3/C1 respectively. He has testified about taking of the accused persons to Kailash Hospital Noida where Sandeep identified them. He has also testified that disclosure statement was made by accused Braham Dutt and in pursuance of the same knife was recovered. He has proved disclosure statement of accused Braham Dutt, sketch of the knife, seizure memo of the parcel of knife as Ex.PW3/D to Ex.PW3/F respectively. He has identified the knife as the same which was recovered at the instance of accused Braham Dutt.
11. PW4 SI Girdhari Lal IO of the case has testified about the manner in which the investigation of the case was conducted. He has proved the ruqqa as Ex.PW4/B, arrest memo of accused Ramji Lal as Ex.PW4/C, site plan as Ex.PW4/D, seizure memos of the blood stained clothes of injured as Ex.PW4/E and Ex.PW4/F. He has identified the knife as Ex.P3 and shirt as Ex.P2. (Ex.P3 has been given to baniyan as well as knife and it should have been given Ex.P4).
12. PW4 Dr. S.Prashad has proved the medical examination of Sandeep Singh by him. He has proved the MLC as Ex.PW5/A and has testified that he had found an incised wound on left side of abdomen having a dimension of 5 approximately 2 cms. He has also testified that another incised wound on lower lateral left thigh was also noted by him. He has also testified that injuries were caused by a sharp edged object. In cross examination, he testified that patient was referred to surgical department.
13. PW6 SI Shahid Khan has proved the copy of FIR as Ex.PW4/C.
14. PW7 Dr. Col. Paikary, CMO, Kailash Hospital, has testified about the nature of injuries having been sustained by the injured. He has testified that Dr. B.K. Patta who wrote the MLC , had died on 23.1.2008. That he was well conversant with his handwritings and signatures for the reason that Dr. B.K.Patta had worked with him. This witness has testified that Sandeep was admitted in Kailash Hospital vide IPD No.7/9994 on 15.8.2007, at around 18.52 hours. That his exploratory laptrotomy was done. He has further testified that there were stab injuries in three places in small intestine. That haemoparitonium (abdominal cavity) was noted. That all the stab wounds were repaired and patient was discharged on 28.8.2007. About the diagnose, he has testified that Sandeep was having stab injury over the abdomen with faecal peritenotis (Infection of abdominal cavity) with multiple perforation of small bowel. He has opined the nature of injury as grievous and has proved the report as Ex.PW7/A.
15. Statements of the accused namely Ramji Lal and Braham Dutt were recorded under Section 313 Cr.P.C. without oath in order to give an opportunity to the accused persons to explain the circumstances appearing in evidence against them. Accused Ramji Lal has admitted about his arrest aspect but has 6 submitted that he is innocent and falsely implicated. He submitted that he has been roped in in this case due to enemical terms. Similarly, accused Braham Dutt has also taken the same defence and has admitted about arrest and conducting of personal search. I deem it pertinent to mention that vide orders dt. 17.9.2008, accused Satish and Ashok Kumar were acquitted in view of the testimony of PW1, wherein PW1 had mentioned that accused Satish Kumar and Ashok Kumar had not played any role in the incident.In view of this position being admitted by Ld. Public Prosecutor, recording of statement of accused Satish Kumar and Ashok Kumar was dispensed with and they were acquitted. I also deem it pertinent to mention that application u/s 311 Cr.P.C. was moved which was dismissed vide orders dt. 27.1.2009, and this is being mentioned to present the complete sequence of events of trial.
16. Arguments were heard at the bar. Ld. Counsel Shri V.S.Panwar, has submitted that prosecution has failed to establish its case and accused persons have been falsely implicated. He has submitted that no intention to kill has been proved on record by the prosecution and question of attraction of Section 307 IPC does not arise. He argued that parties were on enemical terms and quarrel took place at the spur of the moment and hence Section 307 IPC cannot be said to be attracted. He argued that offence u/s 307 IPC is not made out and accused persons are entitled to acquittal. In the alternative, he submitted that at the maximum offence under Section 324 IPC is made out. He has assailed the case of the prosecution on the ground that as per MLC police had got injured Sandeep admitted whereas PW Monu has testified that he had got the injured 7 admitted and on this account accused persons are entitled to benefit of doubt. He has also drawn my attention towards the version of the injured, in his statement wherein injured stated that Monu had got him admitted in the hospital. He has argued that Satish and Ramji Lal were implicated in this case as is evident from a bare perusal of Ex.PW1/A. He has submitted before me that if last three lines of Ex.PW1/A are read, then last two lines can be said to be an after thought, concoction and additions. That I.O. has testified that statement of the injured was recorded in LBS Hospital whereas injured has stated that it was recorded in Kailash Hospital. He has also argued that knife was not sent for opinion of the doctor. He has also argued that no public witness was joined at the time of recovery of knife from a park. That story of recovery of knife from a park, a place accessible to all is not trustworthy and prosecution case should be discarded. He has argued that injured was involved in quarrel somewhere and has taken benefit of the same by falsely roping in the accused persons on account of enemical relations due to kulandra u/s 107/151 Cr.P.C. He has also argued that mother has not acted like a mother and this goes to substantiate his argument that injured has falsely implicated the accused. That mother should have got Sandeep admitted in the hospital.
17. Ld. Public Prosecutor on the other hand has refuted the submissions made by the Ld. Defence Counsel and has submitted that prosecution has established its case beyond the shadow of reasonable doubt. 8
18. I have carefully the records of the case and considered the submissions. In order to establish a case u/s 307 IPC, prosecution has to establish the following ingredients: (1)The accused did some act;
(2)Such act was done with intention or knowledge that hurt was likely to be caused to the victim by the act.
Section 307 was considered in State v/s Virendra reported in AIR 2004 SC 1517, wherein it was held that to constitute an offence u/s 307 two ingredients of the offence must be present:
(a) an intention or or knowledge relating to commission of murder, and
(b) the doing of an act towards it.
19. At the outset, I deem it pertinent to mention that prosecution has failed to establish its case against accused Ramji Lal who was charged u/s 506 IPC. The reason for saying so is that PW1 Sandeep Singh has not deposed about the words of exhortation uttered by Ramji Lal. Another reason is that he has improved his version by testifying that exhortation was heard in semi conscious state. PW1 has also not testified in this regard in consonance with Ex.PW1/A wherein categorical role of giving of threat to kill was assigned to accused Ramji Lal. In the absence of the words, used by accused Ramji Lal, he cannot be connected with the commission of the offence and has to be, thus, acquitted.
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20. However, I have no hitch in returning a finding about the involvement of the accused Braham Dutt in the commission of the offence u/s 307 IPC. The reason for saying so is that ingredients of Section 307 IPC stand brought on record by the prosecution by virtue of testimony of PW1 Sh. Sandeep Singh. This witness has testified that accused Braham Dutt @ Tunni had inflicted knife blow on his stomach and left thigh when he was talking on mobile phone. He has further testified that due to knife blow given by Braham Dutt @ Tunni he had fallen down. He has also testified that accused Braham Dutt had tried to assault him again twice with knife but at that juncture his mother had reached there and had rescued him. That he became unconscious. In cross examination, this witness has testified that accused Braham Dutt had stabbed him again and he had seen him while stabbing. He also testified that his mother had reached when accused was trying to stab him thrice. This version is in substantial consonance with the version of this witness in Ex.PW1/A. Therefore, there is no hitch in returning a finding that his version is worthy of belief. I have no hesitation to observe that in Ex.PW1/A this witness had given a little bit exaggerated version with regard to other accused and this witness made amends while deposing on S.A. His conscience did not permit him to assign roles to accused Ashok, Satish and Ramji Lal.
21. When this testimony is read in juxta position with the testimony of PW5 Dr. S.Prasad and PW7 Dr. Col. Paikary, no doubt is left in one's mind, that injury could have led to the homicidal death of the witness PW1. Doctor has opined the nature of injury as grievous. PW Sandeep Singh remained admitted 10 in the hospital for a considerable period from 15.8.2007 to 28.8.2007. He had suffered stab injury in three places in his small intestine. Injury sustained by him is grievous and has been caused by a knife. Had the witness not been provided medical aid in time, the result would have been definitely fatal. Intention as well as knowledge can be clearly inferred on the part of the accused in this case in view of testimony of PW1 read with the testimony of the doctors. It is a common man's presumption that when one is hit with force time and again on the stomach which is a vital part with a sharp edged weapon like knife and grievous injuries are caused, the person who inflicts the injuries can be said to be having the requisite intent and knowledge to cause culpable homicide amounting to murder. In this case, had the mother of the witness not arrived at the scene, accused would have given other knife blows and the intervening circumstances have saved the life of the PW1. The intervening factors prevented accused to reach the fourth stage and case remained at third stage Section 302 IPC.
22. During cross examination PW1 has not staggered, tottered and faltered. He has remained firm on his assertion concerning material ingredients of the offence. He has warded off the defence successfully. He has denied that proceedings u/s 107/151 Cr.P.C. were wrongly drawn. Moreover, once the matter was compromised which is not disputed, ground u/s 107/151 Cr.P.C. became unavailable to the defence. He has denied that he was not stabbed by accused Braham Dutt. Assertion that Ex.PW1/A was not made by PW1 as so admitted by PW1 in cross is of no help as it has be read alongwith other infra 11 and supra assertions from which only inference which is deducible is the inference that police recorded Ex.PW1/A as so given by PW1 in the hospital and some discrepancies which have crept in are inconsequential. Thus, PW1 has stood true on the touch stone of cross examination.
23. Motive stands proved by the prosecution in this case in the second para of the testimony of PW1 at page 1, wherein PW1 has detailed that his younger brother Ashok had intervened in an altercation and accused persons were arrested in that case and matter was got compromised. At the next page, this witness has testified that on account of that incident accused had started bearing grudge against him. This version is in conformity with the version of PW1 in Ex.PW1/A. This aspect, thus, proves the motive. It is well settled that motive is not an essential ingredient to be proved while returning a finding of guilt. But if motive is brought on record by the prosecution, then it reinforces the conclusion beyond every doubt instead of reasonable doubt. In the present case, proving of motive on the part of the prosecution, thus, gives me an additional substantial ground to give a finding to the effect that prosecution has established its case u/s 307 IPC.
24. Section 307 IPC requires that inference of intention and knowledge on the part of the accused has to be drawn on the basis of the acts committed by the accused prior to the incident, at the time of incident and subsequent to the incident. Nature of injury, extent of force, number of injuries, the weapon used, the intervening factors etc. etc., are the factors which have to be considered by the court while giving a finding that attempt to murder was made. In the 12 present case, prosecution has brought on record all the ingredients required u/s 307 IPC from the testimony of PW1 itself.
25. Testimony of PW1 gets corroboration fully from medical evidence. I have already given the details about the injuries suffered and their extent in para 14 and I am not repeating the same for the sake of brevity. Suffice to say that injuries are more than sufficient to infer requisite intent and knowledge on the part of the accused when viewed in the light of the facts and circumstances of the case. From the above discussion of testimony of PW1, there is no hitch in observing the ingredients required to be proved u/s 307 IPC stand brought on record by the prosecution and accordingly accused is held guilty for the offence u/s 307 IPC.
26. PW1 is supported by PW2 Mr. Monu whose presence at the spot was natural. He has removed PW1 to the hospital. This witness has cleared the mist by testifying that his statement was recorded in the hospital, which had taken place due to stating by PW1 that his statement was recorded at Kailash Hospital. PW4 has corroborated PW1 when he stated that doctors had informed him that Sandeep had sustained deep injuries and knife had pierced (wrongly typed as pears) upto his intestines. PW3 and PW4 have categorically testified about recovery aspect of knife. It was not asked from PW4 as to why the knife was not sent to the doctor for opinion as so contended at the time of final arguments.
27. Thus, there is no hitch to return a finding that prosecution has successfully established its case u/s 307 IPC as in view of acts of the accused 13 prior to the incident, at the time of incident and after the incident, it is inferable that accused entertained intention and knowledge to commit murder and reached attempt stage. Murder was prevented due to the intervening circumstances which were beyond contemplation of accused.
28. Coming to the offence under section 25 of the Arms Act, I am of the view that prosecution has established the case under section 25 of the Arms Act also. The reasons for the same are as follows: As per the recovery memo Ex.PW3/F, knife was recovered on 20.08.2007 in the presence of SI Giridhari Lal and Ct. Anil Kumar from the bushes at 25 Block, Trilok Puri, Delhi. Ct. Anil Kumar has testified that accused was arrested on 20.08.2007 and had made a disclosure statement and had led them to bushes located in the area of 25 Block Trilok Puri. He has also testified that accused picked up a knife from the bushes (middle of examinationinchief, dated 10.04.2008 on first page). This witness in crossexamination was not suggested that knife was not recovered from the bushes. No suggestion was given to this witness that the place from which the accused had got recovered the knife was accessible to all and could not have been within the exclusive knowledge of the accused. PW3 has not been shaken in crossexamination concerning recovery of knife having taken place at the instance of the accused. This witness testified in crossexamination that no person was present near the place of recovery of knife and this fact goes to establish that place of recovery was an isolated place. Moreover, from the facts put forth, fact of knife being in the bushes was in the exclusive knowledge of the accused can be presumed.
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29. Another reason to hold that offence under section 25 of the Arms Act is made out against the accused is the testimony of PW4, who has testified that accused Braham Dutt had led them to a park, located at 25 Block, Trilok Puri. He has further testified that accused Braham Dutt picked up a knife from the bushes and thus from examinationinchief ingredients required under section 25 of the Arms Act stand established by the prosecution. In crossexamination, SI Giridhari Lal has given the details of topography of the park. He has testified that some safeda trees were near the bushes from where knife was recovered. In the next line he has stated that place of recovery was an isolated place. He has denied the suggestion that knife Ex.P3 was not recovered at the instance of the accused. From examinationinchief and crossexamination of PW4 it stands categorically established that place of recovery was an isolated place. This inference is also possible for the reason that PW3 Anil Kumar has also testified that no person was present near the place of recovery of knife. Time of recovery was around 3:00 pm as per version of PW3 and this aspect has gone unchallenged and uncontroverted. His testimony to the effect that no person was present near the place of recovery of knife goes to corroborate the version of PfW4 concerning the place being isolated. Ld. Defence counsel has taken the inadvertent inference from the crossexamination of PW3 and has argued that place of recovery was accessible to all for the reason that he has mixed up the park from where the accused persons were arrested and the park from which the recovery of knife was affected. Accused persons were arrested th from the 17 Block, Bada Park and recovery of knife was affected from the 15 th bushes, located near 25 Block, Trilok Puri. Thus, the inference is deducible that place of recovery was an isolated place and chances of planting of the knife stand ruled out. Moreover, recovery of knife as put forth has to be viewed in the light of the fact that on 15.08.2007 accused had caused injuries with a knife. Recovery was affected on 20.08.2007 at the instance of the accused and every possibility of the recovery of knife from the accused was there. No doubt public witnesses should have been joined by the I.O in order to give full credence to his investigation. However, in view of the peculiar facts of the case, I deem it expedient to hold that nonjoining of public witnesses has not affected the veracity of the case of prosecution concerning recovery of the th knife. PW3 has testified that at 3 p.m., there was no person in the park of 25 Block of Trilok Puri. This goes to show that place of recovery was not a place frequented by public and recovery version cannot be doubted. Recovery was from bushes and this aspect guarantees the truthfulness of recovery.
30. Arguments advanced by Ld. Defence Counsel are not tenable in view of the testimony of PW1. Argument that quarrel was sudden and unmeditated is not tenable as accused had hit PW1 from behind and no role on the part of PW1 was there , at all. The argument that in the MLC it stands mentioned that police has got the injured admitted in the hospital whereas PW Monu has testified that it was he who had removed PW1 to the hospital, is of no help to the accused as this can be said to be an irregularity at the maximum, which does not go to the root of the case of the prosecution. Argument that three versions have come on record concerning admission of the injured in the 16 hospital also meets the same fate. The argument concerning the last lines of Ex.PW1/A is of no help as far as accused Braham Dutt is concerned. This argument holds ground with regard to other accused who stand benefited from the same. In Ex.PW1/A clear and categorical role stands assigned to this accused and this role has been reiterated in the statement on oath by PW1. Argument concerning recording of statement by the I.O. in LBS Hospital and testification by PW Sandeep concerning recording of his statement in Kailash Hospital, is similarly of no help as nothing material turns out of the same. Moreover, this was a post event act. Condition of PW Sandeep was not medically fit and he might have remained confused about the place of recording of his statement being LBS Hospital or Kailash Hospital. Moreover, the accused and the injured are known to each other and there is no question of disputed identity involved. This aspect, thus, is no help to the accused and is discarded. What is material is the substance of the statement and not the place where it was recorded. The argument that PW1 was not in a position to see the accused and has deposed falsely is not tenable for the reason that PW1 has reaffirmed this in cross examination dated 10.4.2008, by stating that he saw Braham Dutt stabbing him. For the sake of convenience - version is being reproduced:
" when accused Braham Dutt stabbed me again, I saw him stabbing me"
th th (6 and 7 lines of crossexamination dated 10.04.2008).
31. PW1 has denied the suggestion in this regard and no evidence has been brought by the accused in his defence in substantiation of this suggestion. 17 The argument that mother of PW1 has not acted like a mother is of no help as answer to this question could have been given by the mother of PW1, who has not been examined by the defence in this regard. Moreover, what line of conduct a witness will follow after an incident is a matter concerning which no set prediction can be made as different persons react differently to particular fact situation. So, the argument is rejected. Arguments that mother should have got the injured admitted in the hospital is again of no help as PW2 Sh. Mannu had taken the injured to the hospital on his motorcycle. Mother would have been definitely interested in immediate removal to the hospital of his son. Another person had helped PW2 Mannu in removing PW1 to the hospital and hence mother of PW1 must have gone separately to the hospital as on the motorcycle only three persons could have been accommodated. One Mannu, one Sandeep and another person whose name was not recollectable to PW Mannu were on the motorcycle. So, the argument is rejected. No other argument was advanced.
32. Realiance of Ld. Defence counsel on 1995 JCC 148 (Rajesh @ Vimal Kumar Vs State) , 1994 JCC 689 (Nazar Mohd. @ Hanuman Vs State of Delhi) and 1991 JCC 2 (Swaran Singh Vs State) is of no help to him as the facts of the present case are different. In the cases relied upon it was the record clerk who had proved the MLCs and the reasons were not on record on the basis of which an inference of grievous injury can be deduced. The injured persons had not testified about their injuries in these cases. In the present case it is not so. Para 14 of my judgment makes the cases relied upon entirely distinguishable 18 and clearly meets out the arguments of Ld. Defence Counsel. Hon'ble Supreme Curt has mandated in umpteen number of cases that proving of grievous injury is not required in a case under Section 307 IPC. Illustrations appended to Section 307 IPC make it categorically clear. Hon'ble supreme Court, in 1983 Cr.L.J. 331, mandated that High Court was not correct in acquitting the accused of the charge under Section 307 IPC merely because the injuries inflicted on the victims were in the nature of a simple hurt (Para 9 and 10). Thus, the judgments placed reliance upon, with due deference are of no help to the accused persons and arguments of Ld. Defence Counsel based upon the same are disallowed.
33. In view of the above going discussion, accused Braham Dutt is held guilty for the offence punishable under section 307 IPC and is accordingly convicted. He is also convicted under section 25 of the Arms Act. Let he be heard on the point of sentence.
Announced in the open court (Dilbag Singh Punia)
Dated:06.3.2009 Additional Sessions Judge01(E)
Karkardooma Courts, Delhi
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IN THE COURT OF SHRI DILBAG SINGH PUNIA: ADDL.SESSIONS JUDGE01(E):
KARKARDOOMA COURTS: DELHI. SC No.140/07
State V/s 1.Braham Dutt S/o Sh. Ramji Lal,
R/o 21/194, Trilok Puri, Delhi.
2.Ramji Lal S/o Sh. Jasgi Ram,
21/194, Trilok Puri, Delhi. (Acquitted on 6.3.2009).
3.Ashok Kumar S/o Sh. Ramji Lal,
R/o 21/194, Trilok Puri, Delhi. (Acquitted on 17.9.08).
4.Satish Kumar S/o Sh. Ramji Lal, R/o 21/194, Trilok Puri, Delhi. (Acquitted on 17.9.2008) FIR No. 317/07 PS Mayur Vihar U/s 307/506/34 IPC & 25 of the Arms Act.
ORDER ON THE POINT OF SENTENCE:
1. I have heard the convict and Ld. Defence Counsel Sh. V.S.Panwar on the point of sentence. Ld. Defence Counsel has submitted that convict was 21 years of age at the time of commission of offence. That he was doing private service of a sweeper. That he is unmarried. That he has three brothers and two sisters who are also working as private sweepers. That father of the convict was a safai karamchari in MCD who stands dismissed from service. That mother of the convict also remains ill. That convict has remained in J.C. for a period of 3 ½ months at the time of his arrest. A request for taking a lenient view and for releasing the convict on probation has been made.
2. Ld.Publc Prosecutor on the other hand has requested for award of harsh sentence on the convict for the reason that injuries caused on the person of the injured were serious. That had medical aid not been provided in time, injured must have died. He has drawn my attention towards the injuries sustained by the injured and has 20 requested for taking a stern view.
3. I have carefully perused the records of the case and considered the submissions. Before adverting to sentencing, I deem it expedient to discuss the legal position with respect to sentencing a little bit.
4. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SC 17, has provided apposite guidelines in this regard. In this judgment reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC 220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.
5. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC (13) and State of Barkare @ Dalap Singh (2005 (5) SCC 413). Reliance has also been placed on Dennis Councle MCGDautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.
6. I am not referring to the mandates of the above mentioned judgments as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society on the one hand and the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction. 21
7. I have kept in my mind the above mentioned position of law and the facts of the case. In the present case , the submissions made by the Ld. Counsel for the convict and convict are the mitigating circumstances whereas the submissions made by Ld. Public Prosecutor are the aggravating ones. Request of Ld. Defence counsel for release of the convict on probation cannot be allowed as the same is not allowable under the Probation of Offenders Act. The same is not allowable under Section 360 Cr.P.C. as well. The reason for saying so is that offence u/s 307 IPC is punishable upto life imprisonment, when hurt is caused. In the present case the hurt has been caused and for that reason request for release on probation is not statutorily permissible.
8. The submission of Ld. Defence Counsel that convict was 21 years at the time of commission of offence is negatived from the records of the prosecution case wherein he has been shown as 22 years of age as on the date of commission of offence.
9. Making a balance between the aggravating and mitigating circumstances, convict is sentenced to undergo RI for a period of 7 years and a fine of Rs.10,000/ u/s 307 IPC. In default of payment of fine he shall undergo further RI for a period of 9 months. Convict is further sentenced to undergo RI for a period of three years and to pay fine of Rs.1000/ u/s 25 of the Arms Act. In default of payment of fine , he shall undergo RI for a period of two months. Both the sentences shall run concurrently. Convict shall get the benefit of set of Section 428 Cr.P.C. A copy of the judgment and order of sentence be given to the convict free of cost.
Announced in the Open Court (DILBAG SINGH PUNIA)
9 th day of March, 2009 Additional Sessions Judge01(E):
Karkardooma Courts, Delhi.