"REPORTABLE"
* HIGH COURT OF DELHI AT NEW DELHI
+ CRL. APPEAL No. 142/2001
Date of decision : 15.12.2008
# SAYAM SINGH @ SONU ..... Appellant
! Through : Mr.Abhay Kushwaha,
Ms.Abhigya Kushwaha,
Ms.Vandana Sharma &
Mr.Dhruv Kumra, Advocates.
Versus
$ STATE .... Respondent
^ Through : Mr. Lovkesh Sawhney, APP
SI Ramesh Chand.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Aggrieved by the judgment of the Trial Court dated 3.2.2001 and order on sentence dated 6.2.2001 whereby the appellant was convicted for offence under Crl.A. No. 142/2001 Page 1 of 10 Section 324/307 IPC and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5,000/- in default, further simple imprisonment for six months for offence under Section 307 IPC and to under rigorous imprisonment for one year and to pay fine of Rs. 2,000/- in default to undergo simple imprisonment for two months for offence under Section 324 IPC, appellant has filed the present appeal.
2. Allegations of the prosecution as against the appellant are that on 28.04.1997 one person named Sawraj Singh neighbourer of Nand Kishore came and sat on the cot of Nand Kishore in a drunken condition and when complainant Ramwati asked him to leave, he started abusing her and when complainant asked him to deceit from his activities and abuses, the said person became angry and thereafter both indulged into hurling abusive language towards each other. After some time at about 9 p.m., appellant Sonu, who happened to be the son of Sawraj Singh, came there and inflicted knife blows on Nand Kishore, who was sleeping and also stabbed Chander Pal, the younger brother of complainant Ramwati, in his abdomen.
3. Appellant was arrested for having committed offences under Section 324/307 IPC. Charges were accordingly Crl.A. No. 142/2001 Page 2 of 10 framed against him. Prosecution had examined as many as 12 witnesses to support its case including injured Chander Pal and Nand Kishore and other public witnesses. The Trial Court assessed the examination and cross-examination of the witnesses in detail and also the defence evidence adduced on the record, and finding no material contradiction in their testimony came to the conclusion that the case of the prosecution was full proved and accordingly convicted the appellant for the offences under Sections 324/307 IPC.
4. On 5.11.2008 learned counsel for the appellant has submitted that in view of the observations of the Trial Court in the impugned judgment, appellant does not want to challenge the judgment of conviction on merits of the case but has prayed that the order on sentence be suspended and the appellant be released on probation on terms and conditions which the Court may deem fit. Accordingly, the report of the probation officer was called.
5. I have perused the report of the probation officer. As per this report, appellant is presently working as a driver in Continental Canverses Pvt. Ltd., 1333 Durga Chamber, Karol Bagh and is getting salary of Rs. 5,500/- per month. Appellant has submitted that he is Crl.A. No. 142/2001 Page 3 of 10 working as driver in the said company for the last five months and prior to that he was employed with DCM where he used to get Rs. 5000/- per month and he left DCM because he got employment at a higher salary. Report also reflects that appellant belongs to lower income group. He is living in one room in his parental accommodation. He has got three children and a wife to support. The children are school going. The probation officer‟s report also reflects that appellant is well behaved young person though he chews Gutka and smoke cigarette. Temperamentally he is calm and cool and becomes aggressive when provoked as he has got an extrovert type of personality. Even the neighbourers who are questioned by the probation officer have spoken high of his conduct and behaviour. He is not involved in any other criminal or illegal activity.
6. Appellant is convicted for offence under Section 307 IPC for which he can be sentenced upto 10 years and with fine and in case hurt is caused to any person by such act, the offender is liable either to imprisonment for life or for any such period, keeping in mind the facts and circumstances of the case. Thus, it is clear that to attract 307 IPC, it is not necessary that the injuries Crl.A. No. 142/2001 Page 4 of 10 caused should necessary be vital. What is necessary is the requisite intention or knowledge to cause death by an overt act. True that the nature of injuries may often give considerable assistance to the Court in coming to a just conclusion regarding the intention of the accused. However, such intention can also be deduced from other circumstances and may even in some cases be ascertained by inference to the actual wounds inflicted upon the persons attacked. In this case, the appellant had stabbed Chander Pal in his stomach/abdomen which injury was found to be dangerous inviting provision of Section 307 IPC; whereas Nand Kishore was also stabbed on the groin.
7. The condition for applying Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the „PO Act‟) have been delineated in the section 4(1) of the PO Act in the following words:
"(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 Crl.A. No. 142/2001 Page 5 of 10 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."
8. Thus, it is clear that before a relief as envisaged in Section 4(1) of the PO Act is granted, Court must take into account the circumstances of the case, wherein the nature of the offence and the character of the offender must have over-riding considerations. After bestowing judicial consideration on these factors, the court must form an opinion as to whether, it would be appropriate in a particular case to release the accused therein as envisaged in the sub-Section. Therefore, the benefits mentioned in Section 3 and 4 of the PO Act can be given to an accused subject to the limitation laid down in these provisions and therefore, the word „May‟ appearing in Section 4 of the PO Act cannot be understood as „Must‟.
9. Court has to adopt a realistic view to the gravity of the offence while considering the nature of the offence and the impact, which the offence could have had on the victims and whether consideration of deterrence could be over-looked. No specific yardstick can be laid down to measure the nature of offence for releasing an offender on probation or dying the probation keeping in Crl.A. No. 142/2001 Page 6 of 10 mind the spirit of Section 4 of the PO Act. „Character‟ of the offender is to be considered by the Court in the ordinary meaning whereas section 4 of the PO Act provided sufficient indication that releasing the convict person on probation of good conduct must appear to the Court to be „expedient‟. The word „expedient‟ has been defined in Black‟s Law Dictionary, Fifth Edition, 1979 as "apt and suitable to end in view"; "whatever is suitable and appropriate in reason for the accomplishing of a specified object." In State of Gujarat v. Jamunadas G. Pabri, (1975) 1 SCC 138 , the word expedient has been defined as : "Again, the word „expedient‟ used in this provisions, has several shades of meaning. In one dictionary sense, „expedient‟ (adj.) means „apt and suitable to the end in view‟, „practical and efficient‟; „politic‟; „profitable‟; „advisable‟, „fit, proper and suitable to the circumstances of the case‟. In another shade, it means a device „characterised by mere utility rather than principle, conducive to special advantage rather than to what is universally right‟ (see Webster‟s New International Dictionary)."
10. The Court, therefore, must construe the word „expedient‟ keeping in view the context and objects of the provision in its widest amplitude. The word „expedient‟ used in Section 4 of the PO Act is in the context of casting a duty on the Court to consider and Crl.A. No. 142/2001 Page 7 of 10 take into account the circumstances of the case including the nature of the offence. It is only after consideration of the facts and circumstances of the case and the nature of the offence that Court has to form its opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct.
11. Offence under Section 307 IPC is an offence of attempt to murder and serious in nature. However, what is required to be considered by the Court is the intention of the accused in causing the injury though it may be grave in nature. The state of the accused person‟s mind has to be inferred from the surrounding circumstances. The existence of a motive is a relevant consideration. Thus knowledge but not intention of the appellant in this case could be gathered from the weapon he used i.e. knife in inflicting injuries in the abdomen of Chander Pal, which was opined as dangerous. Appellant who happened to be the son of Sawraj Singh, used the knife for stabbing Chander Pal on provocation as a quarrel had ensued between Sawraj Singh and injured Nand Kishore when Sawraj Singh sat on the cot of injured Nand Kishore in a drunken condition and abusive words were exchanged between the two. Crl.A. No. 142/2001 Page 8 of 10
12. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In releasing such like offenders on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, appellant has no previous history of enmity between the parties nor was he involved in any criminal activities. The occurrence took place due to sudden flare up of his father Sawraj Singh with Nand Kishore. Appellant had no intention to commit murder of any person.
13. Keeping in mind the facts and special circumstances of this case, good conduct of the appellant and the report of the probation officer that appellant is dedicated to his family and has to support three children and one wife and also the fact that he has been facing trial of the case since the year 1997 and remained in custody only for about 20-22 days but, since after his release on bail, he has not misused the bail in any manner. He has no past history and has no criminal antecedents. Consequently, the extension of beneficial legislation, applicable to first offenders, to the appellant would be appropriate.
Crl.A. No. 142/2001 Page 9 of 10
14. Hence, appellant is released on probation of good conduct for a period of two years on his executing bond for good behaviour with two sureties and shall report to the Probation Officer Mr. R.K. Yadav, after every 15 days. During his period of probation, the appellant shall not leave the National Capital Territory of Delhi without the prior permission of the Probation Officer and shall inform the probation officer of change of residence, if any. In case, during the period of probation period, he is found having committed any offence is bond shall stand forfeited and he would be liable to receive sentence inflicted upon him by the trial court in this case. However, this order shall not be considered as a precedent for seeking probation of an offender for offences under Section 307 IPC.
15. Appeal stands disposed of accordingly.
(ARUNA SURESH) JUDGE DECEMBER 15, 2008 Rd.
Crl.A. No. 142/2001 Page 10 of 10