Delhi District Court
Kamaljeet Singh vs State on 3 December, 2024
IN THE COURT OF SHRI KUMAR RAJAT,
ADDL. SESSIONS JUDGE-07, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI.
CNR No. DLSH01-003279-2020
CA No. 59/2020
KAWAL JEET @ KAMAL JEET SINGH VS. STATE
Present: Appellant Kawal Jeet @ Kamal Jeet Singh along
with surety Amrit Pal Singh present in person.
Sh. Parveen Malik, Ld. Counsel for the appellant.
Sh. Sobit, Ld. Addl. PP for the State/Respondent.
JUDGMENT
1. The present appeal has been filed by the appellant Kawal Jeet @ Kamal Jeet Singh against the judgment of conviction dated 27.02.2020 and order on sentence dated 03.03.2020 passed by Sh. Mayank Mittal, Ld. MM, Shahdara Karkardooma Courts, Delhi vide which the appellant/accused has been convicted u/s 338 IPC and sentenced to undergo SI for 1 year and also to pay fine of Rs. 1,000/- and in default of payment of fine, accused has to further undergo SI for 1 month and also sentenced to SI for 6 months for the offence punishable u/s 287 IPC with fine of Rs. 1,000/- and in default of payment of fine, accused has to further undergo SI for 1 month.
2. Ld. Counsel for the appellant has argued that the judgment of conviction dated 27.02.2020 and order on sentence dated 03.03.2020 passed by Ld. Trial Court are totally wrong, illegal and on the basis of wrong facts, which are not on record and against the law and Ld. Trial Court has not properly appreciated the statement of prosecution witnesses and convicted the appellant while there are major and material contradiction on CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 1 of 22 KUMAR Digitally signed by KUMAR RAJAT RAJAT 15:24:51 +0530 Date: 2024.12.03 the record and prosecution witnesses had given the different versions during examination and cross-examination before the Ld. Trial Court and there is also contradiction between ocular and medical evidence and prosecution has failed to prove the case against the appellant beyond reasonable doubt.
3. It is further argued that Ld. Trial Court convicted the appellant u/s 338 IPC while doctor, who opined the injury was not examined. Ld. Trial Court has not considered the cross- examination of the witnesses properly while the testimony of all witnesses have been shattered in the cross-examination and there is no cogent, reliable, trustworthy and sufficient evidence on record to convict the appellant/accused and the order of Ld. Trial Court is based on conjunctures and surmises and against the law and suffer from infirmity and is liable to be set aside. As per the allegation of the prosecution that alleged incident took place in the factory, but no independent witness was joined and examined by the prosecution while admittedly two other workers were also working in the factory at the time of alleged incident and the prosecution only examined the relative/brother-in-law of the deceased, which creates doubt on the prosecution story and Ld. Trial Court did not consider that the injured was the helper of PW2 and the appellant never asked the injured to do work on machine.
4. It is further argued that Ld. Trial Court has failed to examine the expert, who inspected the machine and the said witness was very material for the just trial of the case, while there was no need of shutter in the alleged machine and it was only manual machine and Ld. Trial Court has also failed to appreciate CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 2 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:24:57 +0530 that neither the case property i.e. machine and black plate were produced nor identified before the Ld. Trial Court according to law as prescribed/proved in the Evidence Act and injured was not examined before the Ld. Trial Court.
5. It is further argued that Ld. Trial Court erred in not granting the benefit of Section 360 Cr.P.C. or Section 4 of Probation of Offenders Act, though the appellant is first offender and the sentence passed is harsh in this regard.
6. It is argued by Ld. APP for the State that the prosecution has proved its case against accused/appellant beyond reasonable doubt and Ld. Trial Court has passed a judicious order after considering all the materials on record including the evidence of PWs including eye witness PW Sonu Mishra, who had proved the negligence of appellant/accused that despite request, he did not stall the shutter over injection moulding machine and due to the same, the fingers and wrist of left hand of Akash was thrust inside the said machine and he suffered grievous injuries and nothing has come in the cross-examination of the prosecution witnesses to cause any doubt and even the MLC also support the case of prosecution. The Ld. Trial Court considered all the materials and its judgment of conviction dated 27.02.2020 and order on sentence dated 03.03.2020 date does not need any interference from this Court.
7. I have heard the rival contentions and perused the record.
8. The FIR in the present case, Ex.PW1/A was registered on the complaint of complainant Sonu Mishra, Ex.PW1/B dated 09.02.2009, wherein he alleged that he was CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 3 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2024.12.03 15:25:03 +0530 residing at MS Park, Delhi and was permanent resident of village Arjunpur, District Hardoi, UP and Akash was his brother-in-law (bahnoi) and was residing with him at above address at Delhi and they were working together at 429/13, Gali No. 1, Friends Colony, Delhi at a Plastic Factory, whose owner was appellant Kawal Jeet @ Kamal Jeet Singh. They used to work together at Injection Moulding Machine where plastic was moulded and plastic mould was taken out by hand and the said machine was not having any shutter and it was opened from all four sides and there was always a fear of cutting of fingers while working and several times the appellant was told to put the shutter for safety of hand/fingers, but the appellant did not pay any heed and simply said that he would get it install. Complainant had worked for two years and Akash had worked for a month and on 08.02.2009, complainant and Akash had gone to the said factory for work and their duty hours were from 9 PM to 9 AM and when they had gone for work, they had again reminded appellant for putting shutter in the said machine and Akash had refused to do the night duty due to non installation of shutter, then appellant/owner Kawal Jeet @ Kamal Jeet Singh did not pay any heed and told that they had to do work and shutter would not be installed and they both started working on the said machine and at about 3 AM on 09.2.2009, while working in the said machine, the hand of Akash got stuck in the machine due to which, his fingers and wrist got injured and he was taken to the General Hospital from where he was referred to GTB Hospital.
9. The FIR was registered u/s 287/338 IPC against the appellant and charge-sheet was filed against appellant Kawal Jeet CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 4 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:25:09 +0530 @ Kamal Jeet Singh u/s 287/338 IPC and charge was framed u/s 287/338 IPC.
10. Section 287 IPC: Negligent conduct with respect to machinery-
Whoever does, with any machinery, any act so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
11. Section 338 IPC: Causing grievous hurt by act endangering life or personal safety of others Whoever causes grievous hurt to any person by doing any act so rashly negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
PW1 proved the FIR, Ex.PW1/A and his endorsement on rukka, Ex.PW1/B.
12. PW2 Sonu Mishra is the eye witness. PW2 deposed that he along with his brother-in-law Akash were working in the factory of appellant at 429/13, Gali No. 1, Friends Colony, Delhi at an injection moulding machine, owned by appellant and plastic mould were taken out from machine by hand and there was no shutter in the machine and despite several requests for installing shutter, the owner/appellant did not pay heed and told them to leave, if they did not want to work.
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13. On 08.02.2009, when he along with Akash went to duty, they told appellant for the shutter and he replied the same and Akash told that he could not work at night on that day, but owner/appellant did not give assurance and at about 3 AM on 09.02.2019, left hand of Akash went inside the said machine and his fingers and left wrist were crushed and he was sent to the hospital. PW2 proved his complaint, Ex.PW2/A and also got prepared the site plan, Ex.PW2/B and the said machine was seized and sealed by the police and accused was arrested vide memo, Ex.PW2/C. In his deposition, PW2 has reiterated the facts mentioned in his complaint and in cross-examination, he stated that he was working in the factory since 2007 as an operator of machine and he was having full knowledge about its operation and Akash joined the factory as a helper and accused had asked Akash to operate the machine at night. This shows that Akash was not having proper training to run the machine and he was forced to do that job by the appellant/accused and that too at night. The contention of accused that he was not present at the factory is not tenable as the injured and PW2 were having night shift from 9 PM to 9 AM and the incident occurred at 3 AM and owner is not supposed to be there at the factory at the middle of the night. PW2 denied the suggestion that he told Akash to work on machine to train him and reiterated that he told the accused regarding shutter on 09.02.2009 in the evening and during the leading question by Ld. APP in re-examination, PW2 admitted and clarified that he had made the complaint on 08.02.2009 in the evening at about 9 PM.
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2024.12.03 15:25:19 +0530
14. PW2 denied the suggestion that on 08.02.2009 at about 9 PM, the appellant was in Punjab from where he was called and also denied that accident occurred due to negligence of Akash. There is nothing in the cross-examination of PW2 to doubt his veracity as a witness and he is consistent enough in his testimony. The accused has not disputed that Akash and Sonu were not his employees or that they were not on duty from 08.02.2009, 9 PM to 09.02.2009, 9 AM.
15. MLC of injured Akash, Ex.PW3/A was proved by Dr. Khuswant Singh and he deposed that during examination, he found that left hand wrist of injured was completely amputated and this witness was not cross-examined by appellant/accused. Thus, the medical evidence corroborates the testimony of PW2.
16. PW6 Sunil Kumar @ Bobby proved the photographs of the spot, Ex.P1 to Ex.P8 and he was not cross-examined by accused/appellant and these photographs shows that there was no shutter on the machine and it was dangerous to work on it by any of the employees.
17. PW4 SI Tej Bahadur deposed that on 09.02.2009 on receipt of DD No. 5A, Ex.PW5/A, he reached GTB Hospital and met Akash and Sonu Mishra and recorded latter's statement, Ex.PW2/A and then he reached the spot with HC Sanjeev and inspected the factory and machine and found bloodstained plastic patch near the machine and he prepared rukka, Ex.PW5/B and got the FIR registered and prepared site plan at the instance of PW2, which is Ex.PW5/C and 8 photographs were taken by the photographer, Ex.P1 to P8 and he seized the said articles from the spot vide memo, Ex.PW5/D. On 11.02.2009, Akash was CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 7 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:25:24 +0530 discharged from the hospital and he recorded his statement and accused Kawal Jeet @ Kamal Jeet was found the owner of the said factory and the relevant documents were seized vide memo, Ex.PW5/E and PW2 correctly identified the appellant and inspection of the premises was got conducted through Factory Inspector P K Goswami, whose report is Ex.PW5/G and the opinion of PW4 has corroborated the version of PW2 and correctly identified the appellant and also proved the X-ray Plates, Ex.PW4/H and Ex.PW4/H1. Nothing has come in his cross-examination to doubt his evidence and he stood found on his deposition in examination in chief.
18. PW5 Ct. Sanjeev accompanied IO to the spot and investigation and recording of statement of PW Sonu and he also proved the seizure memo, Ex.PW5/D, preparation of site plan, photography of spot, sealing of machine and plate. Nothing has come in his cross-examination to doubt his evidence and he stood found on his deposition in examination in chief. Thus, PW5 corroborated the versions of PW2 and PW4.
19. The accused/appellant had not disputed the identity of said moulding machine during the deposition of PW5 and has not taken a defence that the said machine of factory did not belong to him and the injured and PW2 were not his workers.
Rash and negligent act.- In the ancient decision of Empress V. Idu Beg [ILR 3 All 776] , the topic was dealt with in the following language: "Criminal rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably cause. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 8 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:25:28 +0530 the gross and culpable neglect or failure to exercise that reasonable and proper case and precaution to guard against injury, either to the public generally, or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was imperative duty of accused person to have 'adopted'.
Negligence in common parlance means and implies "failure to exercise due care, expected of a reasonable and prudent person". It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which follow from his act.
Cause and effect - must be direct.- In order to attract the section, death must be a direct result of rash or negligent act of the accused and the act must be sufficient cause without the intervention of another act of negligence. It must be the causa causans, it is not enough that it may have been the cause sine qua non. Thus where death is not the direct result of rash or negligent act on the part of the accused and was not a proximate and sufficient cause without the intervention of another act of negligence, the accused must be acquitted of the charge u/s 304A - Kurban Rangawalla v. State AIR 1965 SC 1616: (1966) 1 SCJ 160; Suleman v. State AIR 1968 SC 829: (1968) 2 SCR 515: 1968 Cr LJ 1013; Ambalal v. State AIR 1972 SC 1150: 1972 Cr LJ 727: Keshab v State (1996) 6 SCC 129.
20. The Hon'ble Supreme Court in Rai Sandeep @ Deepu Vs. State of NCT of Delhi, AIR 2012 SC 3157, held the concept of sterling witness and observed in para-22 as under:-
"22. In our considered opinion, the "sterling witness "should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 9 of 22 Digitally signed by KUMAR KUMAR RAJAT Date:
RAJAT 2024.12.03 15:25:33 statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged".
From the testimony of PW2 Sonu Mishra, who was brother-in-law of injured Akash, it is apparent that he was the witness of 'sterling quality' due to his consistent statement since beginning and he has proved the negligence of appellant, which caused the incident and that it was not a mere accident.
21. No proper suggestion were given to PW2 that PW2 or injured Akash had never told appellant to install the shutters or CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 10 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:25:38 +0530 that machine was not unsafe to work upon or was not hazardous to life and safety of workers or that there was no negligence on the part of the appellant/accused.
22. The accused had admitted the said inspection report of Factory Inspector PK Goswami dated 26.02.2009, Ex.PW5/G and he has reported that at the time of inspection, Horizontal Moulding Machine was not found provided with safety guard/safe arrangements to prevent such an accident. It proves that even the appellant was aware of the fact that he was negligent of not providing the safety guard in the said machine. The appellant has also admitted the MLC, Ex.PW3/A wherein the injury opined as grievous in nature due to sharp and heavy substance and injured was unfit for statement.
23. Section 134 Number of witnesses.- No particular number of witnesses shall in any case be required for the proof of any fact.
In Raja Vs. State 1997 (2) Crimes 175 Delhi, it was held that reliance can be place on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of case of prosecution and courts are concerned with the merits of the statement of a particular witness and not with the number of witnesses examined.
In State of UP vs. Kishan Pal 2008 (11) SCALE 233, it was held that it is the quality of evidence not the quantity, which is required to be judged by the court to place credence on the statement.
24. The negligent act of appellant has been proved beyond reasonable doubt by the prosecution from the testimony of PW2 Sonu Mishra, who was the eye witness and remained consistent through out his testimony and remained firm even in CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 11 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:25:43 +0530 his cross-examination as discussed above and in view of Raja (Supra) and Kishan Pal (Supra), it is the quality of evidence and not the quantity that matters and if, the evidence of solitary witness is trustworthy, cogent, reliable, consistent and does not suffer from any material illegality, it can be relied upon to convict the accused. The contention of appellant is that injured Akash was not examined, will not enure any benefit to him as he had expired during the trial and thus, he could not be examined though IO had recorded his statement u/s 161 Cr.P.C. on 11.02.2009 and the manner of crime and the negligence of accused was proved by the prosecution from the evidence of PW2, which was further corroborated by PW3, PW4, PW5 and PW6.
The prosecution has successfully proved that injured Akash was the worker of appellant in his factory and on 09.02.2009 at about 3 AM, he suffered grievous injuries after his hand was stuck in the injection moulding machine while working and it was not guarded.
25. In view of the discussion above, judgment of conviction dated 27.02.2020 and order on sentence dated 03.03.2020 of Ld. Trial Court does not suffer from any illegality and is upheld. Hence, the appeal of the appellant, being devoid of merits, is hereby dismissed.
26. It is submitted by Ld. Counsel for the appellant that Ld. Trial Court erred in not granting the benefit of Section 360 Cr.P.C. or Section 4 of Probation of Offenders Act, though the appellant is first offender and the sentence passed is harsh in this regard and prays that the benefit of Probation under above CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 12 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2024.12.03 15:25:51 +0530 provisions may be given to the appellant as 15 years have elapsed since the offence, which allegedly occurred in 2009. The victim/injured, who sustained grievous injury has already expired after many years and he did not die due to said injury. There is no other victim or his family members traced despite efforts by the court and police to compensate them and appellant is ready to compensate either victim or his legal heirs as recommended in the VIR and he is also ready to compensate the prosecution and pay the fine imposed by the Ld. Trial Court. The appellant is now aged 57 years and facing the court in trial and appeal since last 15 years and he has reformed himself and undertakes that he will not commit any such crime in future and he has never been involved in any other case and his father is suffering from various age related ailments. Ld. Counsel has relied upon the judgment of Parmod Kumar Kushwaha Vs. State of Delhi 2023 SCC Online Del 240 in support of his contention.
27. Ld. APP for the State has opposed the plea of appellant on the ground that due to negligence of accused/appellant, the young man had lost his fingers and wrist of the hand and it caused permanent disability and they should not be any leniency shown to the appellant and his negligence has been conclusively proved before the Ld. Trial Court.
28. I have heard the rival contentions and perused the record.
29. The relevant provisions of releasing the convict on Probation are enshrined u/s 360 Cr.PC and section 4 of Probation of Offenders Act, 1958.
CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 13 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:25:56 +0530 "360 Cr.PC. 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 term 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 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 where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).
2) xxxxxx
3) xxxxxx CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 14 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT 15:26:01 Date: 2024.12.03 +0530
4) An order under this section may be made by any Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
5) xxxxxx
6) xxxxxx
7) xxxxxx
8) xxxxxx
9) xxxxxx
10) Nothing in this section shall affect the provisions of the Probation of Offenders Act, 1958 (20 of 1958), or the Children Act, 1960 (60 of 1960), or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders.
30. The provision of Section 4 of Probation Offender Act are bit wider.
"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 CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 15 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2024.12.03 15:26:16 +0530 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 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.
3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.
4) The Court making a supervision order under sub-
section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 16 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT 15:26:21 Date: 2024.12.03 +0530 offender.
5) The Court making a supervision order under sub- section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned."
31. As per section 360 Cr.PC, if a person, who is more than 21 years of age is convicted of an offence punishable with fine only or imprisonment of 7 years or less and no previous conviction is proved against him, he can be released on probation after considering his antecedent, age and character. If a person is under 21 years of age or any woman and is convicted for an offence not punishable with imprisonment of life or death, he/she can be released on probation subject to above other conditions.
32. It is apparent from section 360 Cr.PC that convict can be released on probation for the offence u/s 287/338 IPC in which maximum punishment is upto 2 years. Section 4 Probation of Offenders Act, 1958 is to be read in addition to section 360 Cr.PC in view of Section 360 (10) Cr.PC and even Section 4 of PoO Act, 1958 does not rule out the probation in such offences.
33. A report of the Probation Officer dated 22.08.2024 was received, which says that there is no previous criminal record of the appellant found. His family comprises of his father, aged about 90 years, his wife, aged about 57 years and his son, aged about 37 years (residing abroad) and he has to look after them and whole family is dependent upon him. If he is sentenced, then his old aged father and wife will find it difficult to get their CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 17 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:26:27 +0530 livelihood and live a smooth life. The mental and physical status of the appellant is normal and he is living a normal life with said family members and whole family is dependent upon the appellant.
34. In the judgment of Arvind Mohan Sinha Vs. Amulya Kumar Biswas, 1974 (4) SCC, it was held that the Probation of Offenders Act is a re-formative measure and its object is to reclaim amateur offenders, who if he spared the indignity of incarceration, can be usefully rehabilitated in society.
In Lakhvir Singh Vs. State of Punjab, 2021 SCC Online SC 25, Hon'ble Apex Court held that to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self- reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved.
35. In Parmod Kumar Kushwaha (Supra), conviction of appellant u/s 304A IPC was upheld by the Appellate Court and his sentence was reduced to 1 year with directions to pay compensation to LRs of the deceased. Hon'ble Delhi High Court considered that whole family was dependent upon the appellant and that he was the first time offender with no previous criminal record and had gone through judicial process for the last 20 years and held that the provisions of the Probation of Offenders Act empower the courts to release the convict on good conduct, and the nature of the offence and the behaviour of the convict need to be taken into consideration while granting the probation. The grant of relief of probation under the said Act varies from case to CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 18 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT 15:26:31 Date: 2024.12.03 +0530 case and thus needs to be scrutinized independently in each case and granted the benefit of probation under Sections 3 and 4 of the Probation of Offenders Act, 1958 to the appellant.
36. Considering the above judgments, socio-economic condition of the convict, his age, his no previous involvement and having liability to look after his family including old age father, the convict Kawal Jeet @ Kamal Jeet Singh is granted the benefit of Section 4 of Probation of Offenders Act, 1959 r/w Section 360 Cr.PC on furnishing a personal bond in the sum of Rs. 50,000/- with one surety of like amount and he shall give an undertaking by way of bond to the effect that he shall maintain peace and good behaviour during the period of two years from today and not commit any such offence during said period.
37. Grant of compensation is also an important component of the Order on Sentence. The compensation to the victim is to be granted under section 357-A Cr.P.C and under Part-II of the Delhi Victim Compensation Scheme, 2018.
5. Power of court to require released offenders to pay compensation and cost (1) The court directing the release of an offender under section 3 or section 4, may, if it thinks fit, make at the same time a further order directing him to pay-
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and
(b) such costs of the proceedings as the court thinks reasonable.
(2) The amount ordered to be paid under sub-section CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 19 of 22 Digitally signed by KUMAR KUMAR RAJAT Date: RAJAT 2024.12.03 15:26:37 +0530 (1) may be recovered as a fine in accordance with the provisions of Section 386 and 387 of the Code.
(3) xxxxxxxx
38. An application was filed on behalf of Ld. APP for the State in the present appeal for grant of compensation to the victim and also the expenses incurred by the prosecution and relied upon Ankush Shivaji Gaikwad Vs. State of Maharashtra (2013) 6 SCC 770 and Karan Vs. State of NCT of Delhi in Criminal Appeal No. 352/2020 decided on 27.12.2020.
39. On the said application and considering the above judgments, the Ld. Predecessor had taken the affidavit of appellant regarding his income and assets for seeking Victim Impact Report from DLSA and the said affidavit was furnished by him on 21.12.2021 and sent to the DLSA, Shahdara for VIR. Ld. APP has furnished the affidavit that an expense of Rs. 17,500/- was incurred in the prosecution of the present case against the appellant Kawal Jeet @ Kamal Jeet Singh before the Ld. Trial Court and his Appellate Court.
40. Ld. Counsel for the appellant has argued that he did not have much capacity to pay the compensation, however, he is ready to compensate the victim and State and is also ready to pay the fine imposed by the Ld. Trial Court.
The VIR was submitted by DLSA, Shahdara dated 24.02.2022 wherein a compensation of Rs. 5 lacs is recommended to the victim considering the loss of hand, income and medical and other expenses.
41. It is also mentioned in the said Report that victim Akash was not traceable despite best efforts by the police and no CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 20 of 22 Digitally signed by KUMAR KUMAR RAJAT RAJAT Date:
2024.12.03 15:26:42 +0530 information was found regarding his wife or relatives and even they could not be reached through mobile numbers and as such victim information could not be earned as he is untraceable. Further, this Appellate Court also made efforts to trace the victim Akash or his family members, but none of them could be found and as per the record of the Ld. Trial Court, Akash had expired.
42. As per affidavit of appellant, his annual income is Rs. 3,84,000/- pm and he is self-employee and he had sole proprietorship of Sadhna Auto Industries and business of Injection Moulding Machine, but factory is closed, so he has no monthly income from same and he has joint property with his wife at Chander Nagar, Ghaziabad and a Honda Scooter in his name.
43. Having heard Ld. Addl. PP for the State, report of the Ld. Secretary, DLSA (Shahdara) and the counsel for appellant considering the facts and circumstances as discussed above, victim Akash had suffered loss of hand as he was having grievous injury and the Court is of the opinion that victim and his family members suffered mental trauma and inconvenience due to said injury due to the act of appellant.
44. Keeping in view the above facts, circumstances and submissions of respective parties, victim is entitled to compensation of Rs. 5,00,000/- (Rupees Five Lakhs Only). The said amount of Rs. 5 lacs be released to the legal heirs of victim Akash (now deceased) as and when they are traced and also the appellant has given an affidavit/undertaking in this regard that he is ready to pay the said amount to his legal heirs.
CA. No. 59/2020 KAWAL JEET @ KAMAL JEET SINGH VS. STATE page 21 of 22 Digitally signed KUMAR by KUMAR RAJAT RAJAT Date: 2024.12.03 15:26:47 +0530
45. The appellant is also directed to pay the fine of Rs. 1,000/- each for offence u/s 287/338 IPC as directed by Ld. Trial Court i.e. total Rs. 2000/-. Fine paid.
46. The appellant is also directed to pay Rs. 17,500/- to the prosecution towards the expenses of the Prosecution. The amount of Rs. Seventeen Thousand, Five Hundred (Rs. 17,500/-) paid and same be released to the Prosecution towards the cost/expenses incurred in the prosecution.
47. The Bond u/s 125 BNSS in the sum of Rs. 50,000/- with one Surety of like amount furnished by the appellant today i.e. 03.12.2024, shall remain in force for a period of two years.
48. The appellant shall remain under the supervision of the Probation Officer, Karkardooma Courts, Delhi for a period of 2 years and shall report the Probation Officer once in three months. In case, the appellant does not maintain good conduct during the period of probation, then he shall be liable to undergo the substantive sentence as ordered by the Ld. Trial Court vide order on sentence dated 03.03.2020.
Copy of the Order on Sentence be provided free of cost to the appellant. A copy of the order be also dispatched to the Secretary, Shahdara District Legal Services Authority, Karkardooma Courts, Delhi and be also sent to Probation Officer, Karkardooma Courts, Delhi for compliance.
Copy of judgment be sent to Ld. Trial Court with TCR and be uploaded on the website. The appeal file be Digitally signed by consigned to Record Room after necessary compliance.KUMAR KUMAR RAJAT Date:
RAJAT 2024.12.03
15:26:57
+0530
(Kumar Rajat)
ASJ-07/SHD/KKD Courts/Delhi
03.12.2024
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