Delhi District Court
Smt. Anita Jain vs The State on 31 July, 2023
DLNW010010922019
Presented on : 01-02-2019
Registered on : 02-02-2019
Decided on : 31-07-2023
Duration : 4 years, 5 months,
30 days
IN THE COURT OF
ASJ/SPECIAL.JUDGE(NDPS)
AT NORTH WEST, ROHINI COURTS, DELHI
(Presided Over by Sh. Vikram)
CA No./07/2023
SMT. ANITA JAIN
W/o Late Sh. Sunil Jain,
R/o BN-32, First Floor,
East Shalimar Bagh,
Delhi. .... Petitioner/Revisionist
Vs.
1. THE STATE
GOVT. OF NCT OF DELHI
2. SUSHIL JAIN
S/o Late Sh. Brij Kishore,
R/o BN-32, Ground Floor,
East Shalimar Bagh,
Delhi-110088.
.... Respondents
C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 1 of 9
JUDGMENT
(Delivered on 31-07-2023)
1. This revision petition under Sections 397/401 of Cr.P.C. has been preferred by the petitioner against the judgment/order dated 20.09.2018 and 07.12.2018 passed in a case bearing FIR No. 181/02, P.S. Shalimar Bagh titled as "State Vs. Sushil Jain"
by the Court of Sh. Anurag Thakur, Ld. MM-02, North West, Rohini Courts, Delhi (herein after called the impugned order) whereby the Ld. MM convicted the respondent/accused for the offence under Section 325 IPC and vide order dated 07.12.2018, sentenced the convict by releasing him on Probation of good conduct for a period of 02 years in accordance with Section 4 of the Probation of Offenders Act, 1958 and also awarded compensation to the revisionist/wife of the respondent/accused to the tune of Rs. 5,00,000/- and in default, to undergo simple imprisonment for a period of one year. The first instalment of Rs.1,50,000/- was to be paid within 30 days latest by 07.01.2019 and the second instalment of Rs.1,50,000/- on or before 05.02.20219 and the last instalment of Rs.2,00,000/- on or before 07.03.2019.
2. Brief facts as per TCR are that on 22.03.2022 at about 8.00
-9.00 p.m, at House No. BN-32, East Shalimar Bagh, Delhi, the convict/respondent No. 2 voluntarily caused grievous injuries to one person i.e. his elder brother namely Sunil Jain (since deceased) by pushing his hand after catching hold it and twisting his arms towards glass fixed on a wall (a sharp object). The said injured was rushed to nearby hospital by his wife Smt. Anita Jain (PW1) with the help of his neighbour one Mr. Chugh in his car C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 2 of 9 for his treatment and the injured remained in ICU for 3-4 days. The matter was reported to the police who lodged FIR No. 181/02, P.S. Shalimar Bagh against the respondent No. 2. The IO after completion of investigation filed the charge sheet under Section 326 IPC in the Court. After hearing arguments on the point of charge, the Ld. MM concerned vide order dated 04.12.2003 framed charges under Section 326 IPC against the respondent No. 2/accused to which he pleaded not guilty and claimed trial.
3. In order to prove the allegations under Sections 326 IPC, the prosecution examined the petitioner Smt. Anita Jain (wife of the complainant) as PW-1 who proved the complainant in her testimony. The prosecution also examined PW2 Constable Lalit Kumar who proved the rukka, FIR and arrest of the respondent No. 2/accused by PW6 Inspector Inder Pal. The prosecution also examined PW-3 Sh. Suraj Bhan and PW-4 Sh. Amir Singh who proved the DD No. 30 A and the FIR Ex.PW-1/A being the duty officer respectively. Prosecution also examined PW-5 Dr. Rakesh Ahuja, Assistant Medical Superintendent who proved the MLC No. 4353 of the injured Sunil Jain as Ex.PW-5/B wherein the nature of injuries was opined as "grievous/sharp". The prosecution also examined PW-6 IO Inspector Inder Pal who proved the statement of the injured Sh. Sunil Jain as Ex.Pw-1/A and site plan Ex.PW-6/B prepared at the instance of Smt. Anita Jain.
4. In Section under Section 313 Cr.P.C. R-2 claimed innocence and stated that he has been falsely implicated to C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 3 of 9 pressurize him to ready with demand to give more share from the property. R-2 opted to lead evidence in defence and brought one tenant in DE.
5. Ld. MM after hearing the parties and perusal of record convicted R-2 under Section 325 IPC and vide order dated 07.12.2018 after hearing on sentence released R-2 on furnishing personal bond and surety bond of Rs. 50,000/- under Probation of Offenders Act 1954. At the same time R-2 was also directed to pay compensation of Rs. 5 lacs to the petitioner.
6. The petitioner impugns the judgment as well as sentence order on the ground that the conviction of R-2 under Section 325 IPC, when charges are framed under Section 326 IPC, is illegal as the prosecution had proved that the injury was caused by sharp edged weapon and ld. MM once accepted that the injury was caused voluntarily should not have reduced the charge under Section 325 IPC while convicting R-2 for same injuries. The petitioner has also contended that even the release of R-2 on probation is illegal as R-2 has committed a heinous offence and the ground given by the ld. MM releasing the accused on probation of good conduct were not justified.
7. Per contra it is submitted on behalf of respondent that the petitioner cannot challenged the conviction under Section 325 IPC to enhance it to Section 326 IPC in revision petition as it would amount to an appeal and the petitioner has been consistently pressing this case to be treated as revision because of which detailed order dated 22.03.2019 was passed to treat the C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 4 of 9 case as revision petition for the enhancement of sentence only. It is also submitted on behalf of respondent that although it was not a case where R-2 should have been convicted as there was no intention but R-2 has challanged the conviction under Section 325 IPC, however, there is no illegality in the order of ld. MM in releasing the R-2 on probation of good conduct with compensation of Rs. 5 lacs. It is further submitted that at this stage the probation period has already expired and the compensation amount has already been deposited with the Trial Court.
8. Before proceeding further, it would be appropriate to have glance over the relevant provision i.e. Section 4 of the Probation of Offenders Act, 1958 which reads as follows :
Power of Court to release certain offenders on probation of goods 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 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 C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 5 of 9 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...".
9. Ld. Counsel for petitioner submitted that Ld. MM could not release the respondent No. 2/accused on probation in view of Section 14 of Probation of Offenders Act, 1958 and Section 360 of Cr.P.C.
10. The prayer of petitioner in the revision petition are two fold. The prayer clause in petition is - "It is, therefore, most respectfully prayed that this Hon'ble Court may graciously please to allow the revision petition and modify the impugned order dated 20.09.2018 and 07.12.2018 passed by the Court of Sh. Anurag Thakur, MM-02, North-West District, Rohini, Delhi in FIR No 181/2002, PS Shalimar Bagh in a case titled 'State Vs. Sushil Jain' thereby convicted the respondent no. 2 under Section 326 IPC and passing appropriate sentence under Section 326 IPC against the respondent no. 2 in the above case, in the interest of justice and equity."
11. The prayer clause by itself shows that in the form of revision petition the petitioner has cahllanged the acquittal of R-2 from offence under Section 326 IPC with which R-2 was charged, but convicted under Section 325 IPC. This was, therefore, an appeal filed in the form of revision. The petitioner has failed to explained how the reason given by ld. MM not convicting the R-2 under Section 325 IPC instead of Section 326 C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 6 of 9 IPC was wrong. The evidence clearly shows that the injury was caused from a glass of window pane and that glass was not used by R-2 as a weapon. It happened as the R-2 hit the arm of injured against window pane, during exchange of words between both brothers. Therefore, ld. MM was right in observing that there was absence of mens rea to use the window pane or the glass as a weapon. Before ld. MM there was no evidence to show that window was already broken before the arm of injured was hit against same. Therefore, no ground is made out to convert the finding of ld. MM convicting the R-2 for the offence under Section 325 IPC to Section 326 IPC as charged.
12. The conviction under Section 325 IPC was not the only grievance of petitioner. Ld. MM released the R-2 on furnishing bond of good conduct under Section 4 of Probation of Offenders Act. It is submission of ld. Counsel for petitioner that the respondent has committed a heinous crime and the facts and circumstances of case did not warrants the R-2 to left on probation.
13. As per sentence order dated 07.12.2018, ld MM while hearing on sentence took note of the fact that there was no criminal antecedents of R-2 and at that time he had undergone cancer treatment and was unable to eat anything without assistance of family members. Therefore, ld. MM released the R- 2 on probation of good conduct for two years and at the same time awarded compensation of Rs. 5 lacs to be paid to the wife of injured (petitioner) as the injured had already expired. Ld. MM also took note of the fact that R-2 had suffered ordeal of trial for C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 7 of 9 16 years before its conclusion.
14. It was the submission on behalf of petitioner that since Section 325 IPC is a heinous offence, R-2 should not be released on probation of good conduct. Ld. Counsel for petitioner in support of his arguments placed reliance on Rajender Dutt Vs. State of Haryana 1993 CRI.L.J 1025, Manjapaa Vs. State of Karnataka 2007, CRI.L.J 3220, Shakeel Ahmad Vs. State NCT of Delhi 2014 (4) JCC 2777, Virender Singh Vs. State 43 (1991) DLT 546, Dalbir Singh Vs. State of Haryana 2000 CRI.L.J 2283, Ram Narayan & ors. Vs. State of UP 1971 CRI.L.J 649, Emperor Vs. Bhano Bhojo AIR (31) 1944 Sind 186. In all the above referred cases the benefit of probation of offender Act for Section 360 Cr.P.C. was not afforded to the convict. However, none of these cases referred have the facts similar to the case in hand. In none of the above cases, it was a fight between two brothers on a little issue of parking. In none of the cases, the accused had no previous antecedents nor they were suffering from any life threatening disease like cancer.
15. In Bharat Bhushand & Anr. Vs. Kanta Devi & Anr. 2016 1 JCC 410 before Hon'ble High Court of Delhi against the conviction under Section 325 IPC, it was held by Hon'ble High Court of Delhi that it is well settled that the provisions of Section 360 & 361 are mandatory in nature. The benefit of probation can be denied only if there are special reasons which are required to be recorded by the Court and it is the duty of the Court to consider why compliance of Section 360 could be dispensed with even if the accused did not make any such request for his release C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 8 of 9 on probation.
16. Ld. MM had good reasons considering the antecedents, age and the physical condition of R-2 to release him on probation.
17. Even otherwise, the period of probation in this case has already completed and the R-2 has already submitted Rs. 5 lacs of compensation amount before ld. Trial Court. In case before Hon'ble Supreme Court in State through CBI Anti Corruption Branch Vs. Sanjeev Bhalla, 2014 (4) JCR (SC 37) Hon'ble Supreme Court has refused to reverse the finding of granting probation to accused persons taking into consideration the date of incident and the fact that the probation period has already been completed and sureties have been discharged. Therefore, since the petitioner has been duly compensated no ground is made out to modify the order releasing R-2 on probation.
18. The petition is, therefore, dismissed.
19. Copy of this judgment be sent to ld. Trial Court alongwith TCR.
Date : 31.07.2023 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/31.07.2023 Dictated on : 31.07.2023 Transcribed on : 31.07.2023 checked on : 31.07.2023 Signed on : 31.07.2023 (Vikram) ASJ-02/Spl. Judge (NDPS), North West, Rohini Courts, Delhi/31.07.2023 C.A No. 7/2023 Smt. Anita Jain Vs. The State & Anr. Page 9 of 9