Harish Chander vs The State (Govt. Of Nct Of Delhi)
2009 Latest Caselaw 4388 Del

               HIGH COURT OF DELHI: NEW DELHI

+              CRL. A. No. 173/2001

%              Judgment delivered on: 29th October, 2009


HARISH CHANDER                              ..... Appellant
                         Through: Mr. S.C. Phogat, Adv.

                 Versus
THE STATE (GOVT. OF NCT OF DELHI) .....Respondent
                 Through: Mr. Lovkesh Sawhney, APP

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?       No

       3. Whether the judgment should be           No
          reported in the Digest?

A.K. PATHAK, J. (Oral)

1. Appellant has filed this appeal against the judgment

dated 2nd March, 2001 passed by the Additional Sessions

Judge, whereby he has been convicted under Section

325/34 IPC as also against the order on sentence dated 3rd

March, 2001, whereby he has been sentenced to undergo

rigorous imprisonment for a period of one year with

imposition of fine of Rs.10,000/- and in default of payment

of fine to further undergo simple imprisonment for a period

of three months.

2. In brief, prosecution case is that on 7th February, 1999

at about 1.00 PM the appellant along with his son Vikram

and wife Dhanpati intercepted the complainant/injured, Sh.

Ishwar Singh, S/o Jage Ram, who was their neighbour, and

picked up a quarrel with him. Appellant and Vikram were

having lathis in their hands. Appellant caught hold of

complainant/injured by his neck and exhorted that he

should be finished that day. Complainant got himself

released and tried to run away but the accused Dhanpati

caught hold of him from behind and Vikram gave a lathi

blow on his head. Appellant and Vikram continued to give

lathi blows to the complainant even after he fell down.

Some passersby intervened and saved the complainant.

3. After the information regarding incident was received

in the Police Station Kanjhawla, D.D. No. 14-B was recorded

and handed over to Head Constable Raj Kumar for enquiry,

who along with Constable Hare Ram reached the spot and

came to know that complainant/injured had been removed

to DDU hospital by a PCR Van. Thereafter, Head Constable

Raj Kumar reached DDU hospital and recorded statement of

complainant/injured, wherein he narrated the incident in

the manner, as has been mentioned in para 2 hereinabove.

On the basis of his statement, FIR No. 16/1999 under

Sections 323/341/34 IPC was registered. Accused persons

were arrested. Subsequently, they were released on bail.

4. After completion of investigation, Challan was filed in

the Court of learned Metropolitan Magistrate, who took

cognizance of offence and committed the case to Sessions

Court for trial. Charge under Section 308/34 IPC was

framed against the appellant and other co-accused Vikram

and Dhanpati, to which they pleaded not guilty.

5. Prosecution examined nine witnesses to support their

case. Complainant/injured namely Ishwar Singh was

examined as PW-5. He corroborated the version of the

prosecution fully. He supported his statement Ex.PW-5/A

recorded by the Police. So far as other witnesses are

concerned, they are formal in nature. PW-1 Dr. Pradeep

Soni, PW-4 Dr. Deven Seth and PW-9 Dr. Suresh Khurana

have proved MLC of complainant as Ex. PW1/A and the

endorsement made therein regarding the nature of injury as

Ex. PW1/B. PW-2 Dharamvir was witness regarding arrest

of accused Dhanpati. PW-3 Head Constable Baljit Singh

had recorded the FIR on the basis of Rukka sent by Head

Constable Raj Kumar and he proved the same as Ex.PW-

3/A. PW-6 SI Om Prakash was subsequent Investigating

Officer and had prepared the site plan Ex.PW-6/A. PW-8

Head Constable Raj Kumar is the initial Investigating Officer

and he deposed about the investigations conducted by him.

6. After conclusion of prosecution evidence, statements of

appellant and other accused persons were recorded under

Section 313 Code of Criminal Procedure, 1973 wherein they

had denied their complicity in the crime and claimed

themselves to be innocent. According to them,

complainant/injured had falsely implicated them. They also

examined one Shri Puran Singh as DW-1, who deposed that

the appellant was with him, between the period of 10 A.M.

to 4/5 P.M. on 7th February, 1999 and had been falsely

implicated.

7. Learned trial court, after scrutinizing the evidence led

by the parties, came to the conclusion that appellant along

with his co-accused Vikram and Dhanpati had assaulted

the injured Ishwar Singh resulting in grievous injuries to

him and convicted them under Section 325/34 IPC.

8. Learned counsel for the appellant has not pressed this

appeal against his conviction. However, he has assailed the

order on sentence. He has contended that the appellant is

working as Sub Inspector in the Technical Branch of Delhi

Police. Some disputes arose between the appellant and his

neighbour, wherein injuries were caused to complainant in

a spur of moment. There was no intention of the appellant,

his wife and son to cause any injury to the complainant.

Incident relates back to the year 1999. As of today, about

10 years have gone by. Appellant has 37 years of

unblemished service record. If he is sent to jail, he would

lose his job, as a result whereof his family would suffer

immensely. He has further contended that co-accused were

released on probation by the learned Additional Sessions

Judge. Role of the appellant was not graver than that of his

co-accused. Accordingly, learned Additional Sessions Judge

should have also released the appellant on probation to give

him a chance to improve himself.

9. Though appellant has not assailed his conviction on

merits, however, I have gone through the trial court file

carefully including the statement of all the witnesses, more

particularly that of PW-5 Ishwar Singh and I find that same

is trustworthy. While deposing in the court PW-5 has

described the incident in the same manner in which it

stated in the FIR. Injuries on the person of PW-5 were

proved as grievous, in view of the MLC Ex. PW1/A.

Accordingly, I am of the view that learned Additional

Sessions Judge rightly convicted the appellant under

Section 325/34 IPC.

10. So far as, order on sentence passed by the learned

Additional Sessions Judge is concerned, I am of the view

that same requires to be modified in the peculiar facts of the

case. Appellant has no previous criminal record. He is

working in the Technical Branch of Delhi Police for the last

thirty seven years. Two co-accused, whose roles was similar

to that of the appellant, were given benefit of Probation of

Offenders Act, 1958 by the learned Additional Sessions

Judge. In my view appellant is also entitled to benefit of

Section 4 of Probation of Offenders Act in the facts of this

case. Accordingly, while the conviction of the appellant is

maintained, I modify the order on sentence and direct that

the appellant be released on probation on furnishing a

personal bond in the sum of Rs.10,000/- with one surety of

the like amount for keeping his good conduct for a period of

one year. Needless to add that appellant would also be

entitled to benefit of Section 12 of Probation of Offenders

Act, 1958. The bond be furnished within four weeks, to the

satisfaction of learned trial court.

11. Appeal is disposed of in the above terms.

12. Trial court record be sent back.

A.K. PATHAK, J

OCTOBER 29, 2009 AG