Lalit Rai & Anr vs State Nct Of Delhi
2013 Latest Caselaw 4638 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment delivered on: October 07, 2013
+      CRL.A. 1337/2010
       LALIT RAI & ANR
                                                           ..... Appellant
                         Through:     Mr. Mukesh Kalia, Mr. Hansraj
                                      Singh, Mr. Varun Jamwal,
                                      Advocates for Vijay Sharma and
                                      Karan Sachdeva.
                     versus
       STATE NCT OF DELHI
                                                          ..... Respondent
                         Through:     Mr. Sunil Sharma, Additional
                                      Public Prosecutor for the State
                                      with Sub-Inspector Giriraj, Police
                                      Station Nabi Karim, Delhi.
       CORAM:
       HON'BLE MR. JUSTICE KAILASH GAMBHIR
       HON'BLE MS. JUSTICE INDERMEET KAUR

                             JUDGMENT

%

KAILASH GAMBHIR, J.

1. The present appeal under Section 374 of Code of Criminal

Procedure has been preferred by the appellants to assail the judgment

dated 12th October, 2010 and order on sentence dated 18th October 2010,

whereby the appellants have been convicted for committing an offence

punishable under Section 307/34 of IPC and sentenced to undergo life

imprisonment with fine of Rs. 5,000/- each and in case of default thereof,

to further undergo rigorous imprisonment for a period of six months.

2. At the very outset, Mr. Mukesh Kalia, learned counsel for the

appellant made a submission that he was not challenging the conviction

of the appellants but would confine his arguments so as to challenge the

order on sentence.

3. Addressing arguments to challenge the order on sentence, Mr.

Mukesh Kalia, learned counsel for the appellant submitted that the

sentence of life imprisonment as awarded by learned trial court is highly

excessive and disproportionate to the nature of injuries suffered by the

victim. Learned counsel for the appellant also argued that the learned trial

court did not appreciate that both the appellants had also received injuries

at the hands of the victim as per MLCs placed on record by the

prosecution. Learned counsel for the appellant further submitted that the

learned trial court also did not appreciate the fact that cross case vide FIR

No. 20/08, under Section 324/34 of IPC was also registered against the

victim - Umed Kumar and his brother with the Police Station Nabi

Karim. Learned counsel for the appellant further argued that so far as

appellant No.1 Lalit Rai is concerned, he had received lacerated wound

over scalp which was stitched by six stitches while appellant No.2

Dharam Pal had received number of injuries on his person. Learned

counsel for the appellant further argued that neither the prosecution has

produced the doctor, who had conducted the MLC of the victim nor the

prosecution has produced the weapon of offence before the doctor to take

his opinion as to whether the victim could suffer such injuries by the use

of such recovered weapon. Learned counsel for the appellant further

argued that as per the MLC report of the victim, proved on record as Ex.

PW-3/A, he had received injuries in his right lower abdomen which is

4.9 centimetres deep lacerated wound by sharp edged weapon. Learned

counsel for the appellant also argued that no evidence was placed on

record to prove as to how long did the victim remained in the hospital.

Learned counsel for the appellant also argued that the prosecution has

also failed to establish as to what kind of surgery was performed on the

victim and how long did he remain in hospital after the performance of

the alleged surgery.

4. Learned counsel for the appellant further argued that as per own

deposition of the victim -Umed Kumar, he remained admitted in Lady

Harding Hospital for nine days.

5. Learned counsel for the appellant also pleaded for taking a lenient

view on the ground that both the accused are married person with small

children and they being the sole bread earners of their respective families.

Learned counsel for the appellant also pleaded that both these appellants

otherwise have clean antecedents with no other criminal record.

6. The aforesaid submissions made by learned counsel for the

appellant have been strongly refuted by Mr. Sunil Sharma, Additional

Public Prosecutor for the State. Mr. Sharma, learned APP submitted that

the order on sentence passed by the learned trial court is a well reasoned

order and thus the same does not warrant any interference by this court.

Learned APP also argued that the weapon of offence used by the

appellant - Lalit Rai was not an ordinary knife but a sword and the

grievous injury was caused on the abdomen of the victim, which

ultimately resulted in the surgery of the victim and therefore, with such

kind of serious injury caused by the appellants, they cannot claim that the

life sentence is a harsh or excessive punishment. Learned Additional

Public Prosecutor further submitted that the nature of injuries suffered by

the victim could have been proved to be really dangerous and fatal to the

life of the victim but he could survive only on account of his immediate

removal to the hospital and with the prompt medical intervention.

7. We have heard learned counsel for the appellant as well as learned

Additional Public Prosecutor for State at a considerable length and

perused the documents and evidence on record.

8. The case of the prosecution in brief can be summarised as under:-

"Accused no.1, Lalit Rai and accused no.2 Dharampal are real brothers, son of Jagdish Rai. They are residents of house no. 10638, Jhandewalan, Nabi Karim, Delhi. It appears that Umed Kumar (PW-

1) is also resident of same premises, though in a separate adjoining portions. On 27.01.2008 at about 07:30 p.m. in Gali Katra, opposite the said house accused no.1 and accused no.2, in furtherance of their common intention accosted PW1 Umed Kumar (victim) and on the instigation and assistance of accused no.2, accused no.1 caused an injury in his abdomen with a sword. The information of the above said incident was received in PS Nabi Karim at around 8:25 p.m. from the Police control room(PCR). On receiving the information PW9, the IO set out for the place of occurrence along with the constable Babu Lal (PW-6). Upon arrival, IO found at the place of occurrence three persons in injured state, they being accused no.1, accused no.2 and PW1. All the three injured person were sent with the two constables to Lady Harding Medical College and Sucheta Kriplani Hospital. In the hospital, the three injured persons were medically examined"

9. As per the MLC Report the victim Umed Kumar had suffered an

injury on his abdomen which is 4.9 centimetres deep. The MLC further

states that a sharp edged weapon was used by the assailant in inflicting

the said injury at the abdomen of the victim. The MLC also records that

the victim was operated upon in the same hospital on 13 th February 2008.

The said MLC was proved on record as Ex.3/A in the deposition of PW-4

and we are not persuaded to accept the plea raised by learned counsel for

the appellant that the MLC of victim was not properly proved in the

absence of examination of the concerned doctor, who had examined the

victim and prepared the said MLC. PW-4 Dr. Anita, Medical Officer,

Lady Harding Hospital in her deposition clearly deposed that Dr. Riti

Mala who had examined the victim had left the service and her present

whereabouts are not known. She had also identified the signatures of Dr.

Riti Mala on the MLC as she was conversant with her signatures having

worked with her. In her cross-examination, when a question was put to

her that whether an injury which was inflicted on the abdomen of the

victim could be by a screw driver or not?, she categorically replied that

this sort of injury can be inflicted by any sharp edged weapon.

10. The sword which was allegedly used by the assailant Lalit Kumar

was recovered from his residence during the course of his disclosure

statement and at the time of recovery of sword, blood stains were found at

the tip of sword. Since we are not examining the merits of the case, as far

as the conviction of the appellants is concerned, therefore we will not

comment upon as to whether the prosecution has succeeded in

establishing the fact that the victim had sustained the injury with the use

of a dangerous weapon in the nature of sword or not. However, from the

nature of injuries, as sustained by the victim Umed and as opined in the

MLC, we find that the victim had received a sharp edged injury on his

abdomen to the extent of 4 x 9 centimetres and the same injury was

described as subcutaneous tissue deep. With this nature of injury

sustained by the victim on his abdomen, we are not persuaded to give

credence to the prosecution version that the appellant had the intention to

kill the victim. Certainly the use of sword with some little force would

have caused more serious injury than the one which was found on the

abdomen of the victim. As per the victim he remained in the hospital for a

period of nine days. He had also undergone an operation but the

prosecution has failed to bring on record as to for how long the victim

remained in hospital on account of said surgery undertaken by him. In

any event, the nature of injury he had sustained as opined in the MLC, the

sentence of life imprisonment awarded by the learned trial court appears

to us to be harsh and excessive. We cannot be oblivious of the fact that

both the appellants had received injuries and in fact the appellant Lalit

Rai had received injuries on his scalp and got six stitches.

11. We also cannot lose sight of the fact that as per the victim of crime

(PW-1) Umed as well as the defence taken by the appellants, a sudden

quarrel had taken place between the parties in which both the parties had

suffered injuries. As per the deposition of PW-1, the motive disclosed for

such a sudden quarrel was that the appellant Lalit Rai abducted his niece

Kimi and thereafter had married her though she was a minor at that time,

due to which the relationship between the appellants and the victim

became strained. It is also the case of the prosecution that on 27 th January

2008, at about 7.30 PM both the accused persons hurled abuses at the

victim and when the victim objected to the hurling of such abuses then

quarrel took place between both the parties.

12. The criminal law adheres in general to the principle of

proportionality in prescribing liability according to the culpability of each

kind of criminal conduct. However there is no straightjacket formula for

determining a just and appropriate punishment in each case as there are

infinite variety of circumstances that may help in assessing the gravity of

the crime such as the nature of offence, the manner in which the offence

is executed, the weapon with which offence is committed, the impact on

the society, the repercussions on the victim, the proportionality of

punishment etc. All these circumstances in which a crime has been

committed are to be delicately balanced in a dispassionate manner by the

Court and for this purpose law allows significant discretion to a Judge in

arriving at a sentence depends on the fact of each case.

13. The Hon'ble Apex Court in the case of Gopal Singh v. State of

Uttarakhand reported in 2013 (2) SCALE 533, while dealing with the

philosophy of just punishment which is the collective cry of the society,

held as under:

"That just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors."

14. In light of the above discussion, present appeal filed by the

appellants is disposed of while holding the appellants guilty under

Section 307 Indian Penal Code, 1860 for having committed the offence of

attempt to murder, we convert the sentence of life imprisonment imposed

upon him by the Ld. trial court to the Sentence of rigorous imprisonment

for a period of 5 years while maintaining the fine of Rs. 5000/- each and

in case of default of payment, the appellants shall further undergo

rigorous imprisonment for a period of six months each.

15. The appeal stands disposed of in the above terms.

KAILASH GAMBHIR, J

INDERMEET KAUR, J OCTOBER 07, 2013 pkb