Shankar vs State Govt Of Nct Of Delhi & Ors
2012 Latest Caselaw 1673 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 1074/2011 & CRL. M.A. 10097/2011

%              Judgment delivered on: 12th March, 2012

SHANKAR                                           ..... Appellant
                                 Through : Mr. Ram Bir Chauhan, Adv.
                     versus

STATE GOVT OF NCT OF DELHI & ORS ..... Respondent
                       Through : Mr. Navin Sharma, APP for State.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

1 Vide order dated 23.02.2012, the following order was passed:-

1. The appellant has assailed the judgment dated 29.07.2011 whereby the appellant was held guilty and convicted, and order on sentence dated 03.08.2011, he was sentenced to undergo SI for a period of 3 years for the offence punishable under Section 308 Indian Penal Code, 1860 with fine of Rs.5,000/-.

2. Ld. Counsel has further submitted that fine amount has already been paid by the appellant.

3. It is further submitted that though the appellant has assailed the Judgment / order on sentence dated 29.07.2011 and 03.08.2011, respectively, however on instruction he is not challenging the Order of Conviction, and praying for the modification of order on sentence dated 03.08.2011, seeking benefit under the Probation of Offenders Act.

4. Ld. Counsel has further submitted that in the scuffle, the appellant also received injuries. However, neither the police have registered a case against the opposite party nor has this fact been taken into consideration by the ld. Trial Court.

5. It is further submitted that when the Police did not register a case against the opposite party on the injuries received by the

appellant, he filed criminal complaint under Section 200 of Cr.P.C. before ld. Metropolitan Magistrate, which is still pending and has not been adjudicated till date.

6. Appellant is about 65 years of age, he is a labourer, who resides in the same vicinity. Till date he is not involved in any other case.

7. Ld. APP on the other hand submits that complainant received grievous injury whereas the appellant received the simple one, therefore case against the complainant was not registered. To this effect, the appellant has filed a criminal complaint, however the cognizance has not been taken by the ld. MM.

8. Ld. APP has further submitted that at this stage, before granting the relief sought by the appellant, at least a report from the Probation Officer (North District) be asked for and taken into consideration.

9. Ld. Counsel for the petitioner has clarified that the court has not taken the cognizance because of the fact that MLC of the appellant was lying in the police file, due to which the evidence to this regard could not be produced. Therefore, the trial court could not proceed further to resort legal action against the opposite party.

10. Pursuance to the last order dated 13.01.2012, SI Ramesh Dixit has produced the police file, wherein I find the MLC of the Appellant is there. As per the MLC Report, the complainants has also sustained injuries, however the injuries of the appellant are simple in nature.

11. learned counsel for the appellant has submitted that though he has challenged the judgment/order on conviction and sentence, however upon instructions from the appellant, he submits that the appellant does not want to dispute the order on conviction but only prays for grant of probation under Section 360 Cr.P.C. read with Section 4 of Probation of offenders Act to the appellant.

2. Learned counsel for the appellant submits that fine amount has already been deposited before the learned trial court on 03.08.2011 vide Receipt No. B0946071.

3. Vide order dated 23.02.2012, the Probation Officer (District North)

was directed to submit the report regarding involvement of appellant in any other case.

4. Pursuance thereto, the report dated 06.03.2012 of Probation Officer has been received in this regard, wherein, it is reported that the accused is a senior citizen of 71 years of age. He is at the last stage of his life. He has good reputation in his locality as well as at his work place. He belongs to poor class. He originally hails from U.P, and after coming to Delhi, he started to work as a labour. He is presently working as a Daily Wager and earning Rs. 200/- per day, whenever got job work. It is further recorded, his parents have already expired. There are two brothers of the appellant namely Sh. Sri Chand, aged about 45years, who is working as labourer, the other brother namely Sh. Ram Sevak, aged about 80 years, who earns nothing. He is having four unmarried children.

5. Learned APP on the other hand submitted that the nature of the injuries was opined as grievous on the MLC of Upender, whereas the nature of injuries on MLC of Avinash was opined as simple by the Doctor.

6. Further it is submitted that however, keeping the total sentence awarded to the appellant, i.e. 03 years into view, the appellant may be granted the benefit of probation.

7. On perusal of the report of the Probation Officer, reveals that the appellant is of 71 years of age, he is not associated with any bad elements. He has four children, though they are major, however are unmarried and are fully dependent upon the appellant.

8. Keeping in view the above discussion, facts and circumstances of the case, I deem it appropriate to grant benefit of probation under Section 360 Cr.P.C. read with Section 4 of the Probation of Offenders Act to the

appellant.

9. Accordingly, the appellant shall furnish requisite Bond of good behavior for 01year before the learned trial court.

10. I here make it clear, that if the appellant is found to be involved in any unlawful activity, his benefit of probation will be withdrawn and he shall undergo the remaining un-expired portion of sentence as awarded by the learned trial court.

11. With the above observations, instant appeal and the application is disposed of.

12. Dasti.

SURESH KAIT, J

MARCH 12, 2012 j/jg