Delhi High Court
Rakesh vs The State on 14 January, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : January 06, 2009
Judgment delivered on : January 14, 2009
+ (i) Crl. A. No.425/1999
Rakesh ... Appellant
Through: Mr. Ramesh Gupta with
Mr. Sunit Arora and Mr.
Anupam S.Sharma,
Advocates
versus
The State ... Respondent
Through: Mr. Amit Sharma,
Additional Public
Prosecutor for State
(ii) Crl. A. No.444/1999
Narender Kumar ... Appellant
Through: Mr. Ramesh Gupta with
Mr. Sunit Arora and Mr.
Anupam S.Sharma,
Advocates
versus
The State ... Respondent
Through: Mr. Amit Sharma,
Additional Public
Prosecutor for State
(iii) Crl. A. No.458/1999
Sant Ram ... Appellant
Through: Mr. Ramesh Gupta with
Mr. Sunit Arora and Mr.
Anupam S.Sharma,
Advocates
versus
The State ... Respondent
Through: Mr. Amit Sharma,
Additional Public
Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
Crl.A.No.425,444,458 of 1999 Page 1
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. The above titled three appeals arise out of common
impugned judgment and order of 28th July, 1999 vide which,
the three appellants herein have been convicted for
committing the offence under Section 308/34 of the Indian
Penal Code for assaulting Ram Babu and they have been also
convicted for the offence under Section 325/34 of the IPC for
causing grievous hurt to Devender and Parveen. Appellants
Narender, Sant Ram and Rakesh have been sentenced by the
trial court to RI for one year with fine of rupees five thousand,
two years with a fine of rupees ten thousand and three years
with a fine of rupees twenty thousand respectively for the
offence under Section 308/34 of the IPC. For the offence under
Section 325/34 of the IPC, appellants Narender and Sant Ram
have been sentenced to RI for two years each with a fine of
rupees ten thousand each and appellant Rakesh has been
sentenced to RI for four years and to a fine of rupees thirty
thousand. The above sentences have been ordered to run
concurrently by the trial court and it has been ordered that out
of the fine realised, a sum of rupees five thousand each be
given to victim Babu and Jyoti and a sum of rupees ten
thousand each to victim Devender and Parveen.
Crl.A.No.425,444,458 of 1999 Page 2
2. With the consent of both the sides, these three appeals
have been heard together and are being disposed of together
by this common order.
3. The facts of this case as noticed by the trial court are as
follows :-
"On 28.4.1996 at about 6.00 pm, Ram Babu brought a
bucket of milk outside his house to sell. Accused Sant
Ram threw a stone on the legs of his cow which was tied
there. Accused Sant Ram also started abusing Ram Babu
to teach him a lesson. Ram Babu offered to clean the
water filled in the drain in front of the house of the
accused but the said offer was ignored and when the
house of complainant party was under construction, the
accused had given one room to them without rent for
residence and for looking after the construction and they
had also given a cylinder to them for use. This became a
bone of contention subsequently. accused Narender and
Rakesh came out. Appellant Rakesh was wearing a
„panja‟ in his hand and hit with it on the head of Ram
Babu and blood started oozing. Accused Sant Ram gave
pipe blow on the head of Ram Babu and Narender started
beating Ram Babu with „saria‟. When Ram Babu raised a
noise, his brother Devender came out, where upon
aaccused Narender caught hold of him and Rakesh and
Crl.A.No.425,444,458 of 1999 Page 3
Sant Ram started beating him. In the meantime, Jyoti
Prasad and Parveen also came out. Accused Sant Ram
gave pipe blow on the head of Jyoti Prasad; whereas
Narender and Rakesh gave beating to Parveen who also
received injuries on his head and body. Right hand of
Parveen was fractured. Ram Babu received injuries on his
head and thigh. Police reached at the spot and Ram Babu
lodged report Ex.PW.3/A on which formal FIR, carbon
copy of which is Ex.PW9/A, was registered at police
station. During investigation, accused Rakesh and
Narender were arrested on 1.5.1998; whereas accused
Sant Ram was apprehended on 16.7.1998. Injured were
medically examined and grievous injuries were found on
the person of Ram Babu and Parveen. After completion of
investigation, charge-sheet was filed against these
accused in the court concerned.
4. Appellants/accused were put to trial for commission of
the offences under Section 308/325/34 of the IPC as they had
not pleaded guilty and out of the thirteen witnesses, material
ones are the injured witnesses i.e. Parveen Kumar (PW-1), Jyoti
Prasad (PW-2), Ram Babu (PW-3) and Devender (PW-6).
Medical record stands proved by Dr. Rajiv Gupta (PW-4), Dr.
J.S. Purty (PW-5) and Dr. K.C. Mishra (PW-12). Head Constable
Dharambir (PW-11) had investigated this case.
Appellants/accused in their statements under Section 313 of
Crl.A.No.425,444,458 of 1999 Page 4
the Cr.PC recorded by the trial court had denied the
prosecution case but had not led any evidence in their
defence. After the trial, appellants/accused stands convicted
as noticed above.
5. Both the sides have been heard and the evidence on
record has been perused.
6. The undisputed facts are that the appellants/accused and
the complainant party are the neighbours and there was a
dispute between them over a drain and the complainant party
was running a milk dairy and they used to tie their animals in
the gali outside their houses. It is also not in dispute that when
the house of the complainant party was under construction,
the accused party had given one room and a gas cylinder to
them for use, without any rent etc., to look after the
construction. It has also come in the evidence that prior to this
incident, there was no quarrel between the parties. However,
happening of this incident stands established from the
evidence of the injured, which is duly supported by the medical
evidence.
7. In view of the aforesaid, learned counsel for these three
appellants has rightly not challenged the conviction of the
appellants on merits and has prayed for taking a lenient view
on the point of sentence by highlighting that the appellants
have clean antecedents and they have remained in custody in
Crl.A.No.425,444,458 of 1999 Page 5
this case for a period ranging from about eight days to forty
five days and it has been stated that by now appellants are
middle aged persons, having families to support and they have
faced the trial and the appeal proceedings for the last one
decade i.e. since April, 1998. It is also stated that the fine
imposed by the trial court stands deposited. Thus, prayer for
releasing the appellants on probation has been made by
relying upon judgments reported in 116 (2005) DLT 344,
2004 IV AD (Crl.) DHC 553; 1977 Crl.L.J.1601 and
Criminal Appeal No.318 of 1976 decided on 3.3.1992.
8. In view of the aforesaid stand taken on behalf of the
appellants, report regarding the antecedents of the appellants
was called for and as per the report submitted by the State,
these three appellants are not involved in any other case. It is
noticed in the impugned order that these three appellants
were the students at the time of commission of this offence,
still the prayer for taking lenient view was not considered by
the trial court.
9. In the case of Suresh Kumar & Others V. State 116
(2005) Delhi Law Times 344, this Court had granted the
benefit of probation in a case under Section 324/325/34 of the
IPC as the accused of the said case was not having any
criminal antecedents. It is pertinent to note that the
punishment for the offence under Section 325 of the IPC and
Crl.A.No.425,444,458 of 1999 Page 6
for the offence under Section 308 of the IPC is the same i.e.
extendable up to seven years with no minimum sentence.
10. In the case of Daljit Singh & Others V. State of Punjab
2006 (6) AD SC 619, Apex Court has declared that the
probation of Offenders Act has much wider scope and it applies
to a person found guilty for committing an offence not
punishable with death or imprisonment for life.
11. In the case of Roshanali Burhanali Syed Vs. State of
Gujarat AIR 1982 SC 784 the apex court has held that even if
the accused is above 21 years of age, still he can be released
on probation under the Probation of Offenders Act.
12. In case of Ved Prakash Vs. State of Haryana AIR
1981 SC 643, a fire-arm was used by the accused but still he
was released on probation under Section 4 (1) of the Probation
of Offenders Act, 1958, by observing as under:-
"Sentencing an accused person is a
sensitive exercise of discretion and not a
routine or mechanical prescription acting
on hunch. The Trial Court should have
collected materials necessary to help award
a just punishment in the circumstances.
The social background and the personal
factors of the crime-doer are very relevant
although in practice Criminal Courts have
hardly paid attention to the social milieu or
the personal circumstances of the offender.
Even if S.360, Cr.P.C. is not attracted, it is
the duty of the sentencing Court to be
activist enough to collect such facts as
have a bearing on punishment with a
rehabilitating slant. The report indicates
that he is an agriculturist, pursuing a
peaceful vocation. His parents are alive
Crl.A.No.425,444,458 of 1999 Page 7
and he has a wife and children to maintain.
These are stabilising factors in life. A long
period of litigation and the little
period of imprisonment suffered, will
surely serve as a deterrent."
13. Considering the nature of the offence and the character
of the offenders/appellants, while maintaining the conviction of
these three appellants, it is directed that appellants Narender
Kumar S/o Ashok Kumar, Rakesh and Sant Ram both sons of
Bal Kishan be released on probation for a period of one year
each upon their executing personal bonds in the sum of rupees
twenty thousand each for keeping peace, good behaviour and
good conduct during the said period. For this purpose,
appellants are directed to appear before the trial
court/successor court within two weeks from today. In case,
any of the appellants defaults, then he shall be liable to
undergo the sentence as already awarded by the trial court.
The fine imposed shall be treated as the costs of the
proceedings of this case and out of the said amount,
compensation as directed by the trial court will be payable to
the victims.
14. With the aforesaid modification, these three appeals
stand partly allowed to the extent indicated above.
SUNIL GAUR, J
January 14, 2009
dkg
Crl.A.No.425,444,458 of 1999 Page 8
