Sayam Singh @ Sonu vs State
2008 Latest Caselaw 2250 Del

                "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

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

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

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

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

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

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

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.

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.

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.