Delhi High Court
Mahender @ Guddu vs State on 22 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22nd August, 2014
+ CRL.A. 46/2011
HARENDER ..... Appellant
Through: Mr. Samrat Nigam and Mr.
Rohit Singh, Advocates.
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Additional
Public Prosecutor for the State
with SI Rajiv Kumar Gautam
Police Station Vivek Vihar
+ CRL.A. 69/2011
MAHENDER @ GUDDU ..... Appellant
Through: Mr. Rohit Minocha, Advocate.
versus
STATE ..... Respondent
Through: Mr. M.N. Dudeja, Additional
Public Prosecutor for the State
with SI Rajiv Kumar Gautam
Police Station Vivek Vihar
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. Appellants - Harender and Mahender impugn the judgment
dated 02.12.2010 and order on sentence dated 06.12.2010 passed by
learned Additional Sessions Judge in Sessions Case No.37/10 arising
out of FIR No.238/09 Police Station Vivek Vihar under Section
307/34 of Indian Penal Code by filing aforesaid two appeals. Since
both the appeals arise out of a common judgment as such they are
taken up and disposed of together.
2. A petty quarrel over a seat in the train took a ugly turn resulting
in grievous and dangerous injuries to the complainant, which is borne
out from the prosecution case which reflects that on 28.12.2009, DD
No.8A was lodged in Police Station Vivek Vihar to the effect that
Pawan Kumar son of Jagmal had been admitted in Dr. Hedgewar
Hospital. On receipt of this DD, PW10 - ASI Bhgwat Prasad along
with Constable Devender (PW9) reached at the hospital. Injured -
Pawan (PW1) and eye witness Virender (PW3) met him. ASI
Bhagwat Prasad recorded the statement of Pawan. Virender produced
the weapon of offence i.e. a sua before PW10, who took the same into
possession. PW10 prepared rukka and got the FIR registered.
Subsequently, the investigation was handed over to SI Omkar Singh
(PW8). Accused Mahender @ Guddu was arrested on the same day at
about 8.30 pm near Loni Bus Stand on the identification of the
complainant whereas accused Harender surrendered in the Police
Station on 06.01.2010. After completing investigation, charge-sheet
was submitted against the accused persons.
3. Both the accused abjured their guilt and claimed trial. In order
to bring home the guilt of the accused persons, prosecution examined
as many as 10 witnesses. The case of accused was one of denial
simplicitor. They did not prefer to lead any evidence in defence.
4. Vide impugned judgment, learned Additional Sessions Judge
observed that the prosecution had succeeded in establishing the guilt
of the accused on the basis of testimony of the injured duly
corroborated by PW3- Virender and the medical evidence. As such,
accused were held guilty of offence under Section 307/34 of Indian
Penal Code and were sentenced to undergo rigorous imprisonment for
three (3) years and to pay fine of Rs.1,000/- each and in default to
undergo simple imprisonment for one month.
5. Feeling aggrieved, separate appeals have been preferred by the
appellants. Mr. Rohit Minocha, Counsel for the appellant - Mahender
@ Guddu submitted that there was no motive on the part of the
accused persons to inflict any injuries on the person of complainant.
Moreover, even if the case of the prosecution is accepted, the
appellant was carrying sua and the injuries caused by sua were not
grievous in nature. Five injuries were found on the person of injured
and at the most injuries no.1 and 5 could have been caused by sua
which were neither grievous nor dangerous. Moreover, the appellants
did not share common intention with the co-accused, as such offence
under Section 307 IPC is not made out against him.
6. Mr. Samrat Nigam, Counsel for the appellant - Harender
submitted that as per prosecution version, there was a scuffle over seat
in a running train and co-passengers pacified both the parties.
Therefore, this scuffle on a petty matter cannot furnish a motive for
commission of crime. Moreover, the incident is alleged to have taken
place at about 9.25 am. However, there is no public witness. Even
PW3 - Virender did not come to the rescue of the injured till the
accused left the place. As such, the incident, as setup by the
prosecution is doubtful. Moreover, sua was used by co-accused
Mahender and the knife with which injuries were alleged to have been
inflicted by the appellant - Harender has not been recovered.
Moreover, there was no common intention. The injured has been
declared hostile. There are discrepancies in the testimony of the
prosecution witnesses. As such prosecution has failed to substantiate
its case. Alternatively, it was submitted that the accused was 21 years
old at the time of incident, as such, he should have been released on
probation. Even otherwise, he has remained in jail for a period of one
year, as such a liberal view be taken.
7. Countering the submissions of learned Counsel for the
appellants, it was submitted by learned Additional Public Prosecutor
for the State that PW1 - Pawan is an injured witness. He sustained
five injuries on vital part of his body. Testimony of injured witness
stands on a higher pedestal than any other witness inasmuch as his
presence at the spot is not doubtful. Furthermore, his testimony finds
due corroboration from PW3 - Virender and the medical evidence. As
regards submission that there was no other eye witness to the incident,
it was submitted that it is the quality and not the quantity of the
witness which matters. The testimony of injured himself is sufficient
to convict the accused. Further, in the instant case, same finds
corroboration from PW3 and the medical evidence. The common
intention on the part of the accused persons is reflected from the fact
that a minor scuffle over seat had taken place on 26.12.2009 while the
incident took place on 28.12.2009 when both the accused armed with
weapon came and inflicted sua and knife blows resulting in grievous
and dangerous injuries on the person of injured as such the impugned
judgment does not suffer from any infirmity. As regards quantum of
sentence is concerned, it was submitted that although serious injuries
were caused by the accused persons, however, considering their age,
they were sentenced only for a period of three years and the
compensation was granted to the extent of Rs.1,000/- only. As such,
no further leniency is warranted.
8. Police machinery swung into action on an information given to
Police Station regarding admission of Pawan son of Jagmal in Dr.
Hedgewar Hospital by his cousin whereupon DD No.6A was recorded
and assigned to ASI Bhagwat Prasad, who along with constable
Devender reached hospital where injured was declared fit for making
statement and as such he recorded his statement Ex.PW1/A which
became bedrock of investigation.
9. Injured - Pawan stated that he was working in a factory at
Shahdara where mobile chargers are manufactured. On 26.12.2009,
after his duty at about 8 pm he was going in a train. In the train, he
was sitting in a seat. Both the accused caught hold of him from his
shirt and asked him to leave the seat. He objected. Thereupon they
hurled abuses to him. Co-passengers intervened and the matter was
pacified. Accused threatened him with dire consequences. On
28.12.2009 at about 8.10 am, he boarded the train from Kharkari
Railway Station along with his cousin Virender for Delhi. At about
9.15 am they reached at Shahdara Railway Station. When they
reached at Mukesh Nagar, both the accused came from behind.
Accused Guddu attacked him with sua on his back and exhorted
Harender "Sale Ko Khatam Kar Ke Jayenge" and thereafter both the
accused had assaulted him with sua and knife. He sustained injuries
on his back, chest, left hand and ribs. In order to save himself, he ran
for about 15/20 steps and then fell down on the road and got
unconscious. He regained consciousness in Dr. Hedgewar Hospital
where police met him and recorded his statement Ex.PW1/A. The
accused were known to him prior to the incident as they used to travel
in the same train. Accused used to board the train from Loni whereas
he used to board the train from Kharkari. The witness could not
identify the sua and as such he was cross examined by learned
Additional Public Prosecutor for the State and in cross examination he
admitted that sua was lifted by Virender which was thrown by
accused Guddu while running. He, however, denied that the sua was
handed over to the police by Virender in his presence in the hospital
or that the sketch of sua or its seizure memo was prepared in his
presence. He identified his blood stained clothes comprising sweater,
black t-shirt and vest of white colour Ex.PW1/2 to PW1/4 which he
was wearing at the time of incident. In cross examination, he deposed
that Virender was ahead of about 8-10 steps from him while they were
moving towards factory. He had called Virender, but he did not come
to save him. He was discharged from Dr. Hedgewar Hospital on the
same day and thereafter he was taken to St. Stephan Hospital by his
family members where he remained admitted for five (5) days. He
reiterated that the accused were known to him for about one and a half
years prior to the incident as they used to travel in the same train once
or twice a week in which he used to travel.
10. It is settled law that testimony of an injured witness stands on a
higher pedestal than any other witness, inasmuch as, he sustain
injuries in the incident. As such, there is an inbuilt assurance
regarding his presence at the scene of the crime and it is unlikely that
he will allow the real culprit to go scot free and would falsely
implicate any other persons. In Abdul Sayeed v. State of Madhya
Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
"28. The question of the weight to be attached to the evidence of a
witness that was himself injured in the course of the occurrence has been
extensively discussed by this Court. Where a witness to the occurrence has
himself been injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness that comes
with a built-in guarantee of his presence at the scene of the crime and is
unlikely to spare his actual assailant(s) in order to falsely implicate
someone. "Convincing evidence is required to discredit an injured
witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State
of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat,
Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P.,
Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan,
Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of
Maharashtra.]
29. While deciding this issue, a similar view was taken in Jarnail Singh
v. State of Punjab, 2009(9) SCC 719 where the Court reiterated the special
evidentiary status accorded to the testimony of an injured accused and
relying on its earlier judgments held as under:
"28. Darshan Singh (PW 4) was an injured witness. He had been
examined by the doctor. His testimony could not be brushed aside
lightly. He had given full details of the incident as he was present
at the time when the assailants reached the tubewell. In
Shivalingappa Kallayanappa v. State of Karnataka, this Court has
held that the deposition of the injured witness should be relied
upon unless there are strong grounds for rejection of his evidence
on the basis of major contradictions and discrepancies, for the
reason that his presence on the scene stands established in case it
is proved that he suffered the injury during the said incident."
30. In State of U.P. v. Kishan Chand, a similar view has been
reiterated observing that the testimony of a stamped witness has its own
relevance and efficacy. The fact that the witness sustained injuries at the
time and place of occurrence, lends support to his testimony that he was
present during the occurrence. In case the injured witness is subjected to
lengthy cross-examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide Krishan v. State of Haryana).
Thus, we are of the considered opinion that evidence of Darshan Singh
(PW 4) has rightly been relied upon by the courts below.
31. The law on the point can be summarised to the effect that the
testimony of the injured witness is accorded a special status in law. This is
as a consequence of the fact that the injury to the witness is an inbuilt
guarantee of his presence at the scene of the crime and because the
witness will not want to let his actual assailant go unpunished merely to
falsely implicate a third party for the commission of the offence. Thus, the
deposition of the injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis of major
contradictions and discrepancies therein."
11. A perusal of testimony of Pankaj reflects that he had given a
graphic description of the entire incident including the role played by
both the accused. His testimony is consistent, cogent, trustworthy and
reliable. The incident took place at about 9.25 am. Thereafter, the
police was informed who reached hospital and recorded his statement
Ex.PW1/A. At that time also, he had given minute details of the
incident as well as the role played by both the accused. As such at the
very first available opportunity, the injured had not only named both
the accused but also specified the role played by them. The witness
was subjected to cross examination by learned Counsel for the
appellants, however, nothing material could be elicited to discredit his
testimony. Both the accused were known to him before as they used to
travel in the same train in which the injured used to travel. Except for
the quarrel on 26.12.2009, which was also pacified by the co-
passengers, there is absolutely no animosity which may provoke the
injured to falsely implicate the accused in this case and allow the real
culprits to go scot free. Under the circumstances, his testimony is
sufficient to convict the accused persons. Mere fact that he was
declared hostile by the prosecution on the point of seizure memo of
sua is not sufficient to discard his testimony because it is settled law
that merely because a witness is declared as hostile, there is no need to
reject his evidence in toto. The evidence of hostile witness can be
relied upon at least to the extent, it supports the case of prosecution as
held in Sathya Narayanan v. State rep. by Inspector of Police, (2012)
12 SCC 627.
12. In the instant case, his testimony finds substantial corroboration
from the other material on record. PW3 - Virender was travelling
along with PW1 - Pawan on the fateful day. This witness has also
deposed that on 28.12.2009 at about 8.10 am, he along with his cousin
Pawan boarded a train from Kharkari Railway Station and reached
Shahdara Railway Station at 9.15 am. They used to work in the same
factory at Shahdara. They were going to factory from the station.
They had just covered a distance of 15/20 paces when both the
accused attacked Pawan from behind. Pawan was walking 8-10 steps
behind him. Pawan called him by name and when he looked
backward, he saw both the accused assaulting him. Accused Guddu
was assaulting Pawan with a sua while accused Harender was
assaulting him with a knife. Virender got scared that they will also
attack him and due to his reason he did not come to save Pawan.
Pawan ran into the street to save himself. He was followed by both the
accused. He fell down on the road and became unconscious. Both the
accused ran away from the spot. Guddu had thrown the sua in the
drain. He picked that sua from the drain. Pawan had sustained injuries
on his backside, behind abdomen, on the left side of his chest and left
side of his elbow. He took Pawan to Dr. Hedgewar Hospital in a
rickshaw. Police met him in the hospital and he handed over sua
Ex.P1 to the police which was taken in possession vide memo
Ex.PW1/PX2. He joined investigation. He was brought to the spot by
the police and police prepared the site plan Ex.PW3/A at his instance.
Thereafter, they returned back to the hospital. He along with the
police went to Ram Vihar, Banthia near Loni where accused Guddu
used to reside but he was not available at his house. When he was
returning to his village, he found Guddu at the bus stand and then he
informed the police. Police immediately reached the spot and
apprehended Guddu and arrested him vide memo Ex.PW3/B. He
further deposed that on 06.01.2010, he received a call from police
informing him that accused Harender had been apprehended. He went
to Police Station and identified him. He was arrested vide memo
Ex.PW3/C.
13. The testimony of this witness has been assailed by learned
Counsel for the appellants on the ground that despite the fact that he is
a close relative of the injured and was called by him to save him but
he did not go to save Pawan and, therefore, his presence at the spot is
highly doubtful. I find the submission devoid of any merit inasmuch
as mere fact that the witness did not go to help the injured while he
was being attacked by the accused persons does not cast any doubt
about his presence at the spot or witnessing the incident. In Rana
Pratap and others v State of Haryana [(1983) 3 SCC 327], Hon'ble
Supreme Court observed that every person who witnesses a murder
reacts in his own way. Some are stunned, become speechless and
stand rooted to the spot. Some become hysteric and start wailing.
Some start shouting for help. Others run away to keep themselves as
far removed from the spot as possible. Yet others rush to the rescue of
the victim, even going to the extent of counter-attacking the assailants.
Every one reacts in his own special way. There is no set rule of
natural reaction. To discard the evidence of witnesses on the ground
that he did not react in any particular manner is to appreciate evidence
in a wholly unrealistic and unimaginative way. Similar view was
taken in Abu Thakur and Ors. Vs. State of Tamil Nadu, (2010) 2
SCC (Cri) 1258 wherein it was held by the Apex Court that
behavourial pattern of individual differs and response of each
individual may not be similar. In that case, after witnessing ghastly
attack on deceased, witnesses fled away from place of occurrence and
did not report the matter to police, it was held that presence of
witnesses at place of occurrence cannot be disbelieved on that ground.
14. Under the circumstances, the mere fact that this witness did not
come to the rescue of injured while he was being attacked by the
accused persons does not cast any doubt on his presence at the spot or
witnessing the incident inasmuch as after the accused ran away from
the spot, it was he who removed the injured to hospital which finds
corroboration from MLC Ex.PW4/A wherein in the column of
'brought by', the name of Virender son of Rich Pal has been
mentioned. Further, according to this witness, accused Guddu had
thrown sua in the drain which he had picked up from the drain. When
the police officials came to the hospital, he handed over sua to the
police which was taken into possession vide memo Ex.PW1/PX2. Not
only that accused Mahender @ Guddu was arrested on the
information given by him to the police and the arrest memo
Ex.PW3/B bears his signatures. It has also come in the testimony of
this witness that both the accused were known to him from before as
they used to travel in the same train for the last one and half years in
which they used to travel. There was no altercation with them prior to
the incident. Under the circumstances, the witness has no animosity,
ill-will or grudge against any of the accused for which reason he
would falsely implicate them in this case.
15. As regards the submission that there is no other eye witness to
the incident although the same had taken place at 9.15 am, this
submission deserves outright rejection inasmuch as it is settled law
that the court is concerned with the quality and not with the quantity
of evidence which is necessary for proving or disproving a fact. The
legal system has laid emphasis on the value, weight and quality of
evidence rather than on quantity, multiplicity or plurality of witnesses.
That is the logic of Section 134 of the Evidence Act [Vide Sunil
Kumar v State of Govt. of NCT of Delhi (2013) 11 SCC 367,
Namdev v State of Maharashtra (2007) 14 SCC 150].
16. At the cost of repetition, it may be mentioned that testimony of
injured himself is sufficient to sustain conviction, but, in the instant
case, the same finds substantial corroboration from the testimony of
PW3 - Virender. There is nothing on record to show whether the
incident was witnessed by any other person and even if so non-
examination of any other independent witness does not cast any doubt
on the testimony of injured duly corroborated by PW3-Virender.
17. Furthermore, their ocular testimony finds substantial
corroboration from medical evidence. PW4 - Dr. Abhishek Biswas
was on duty as causality medical officer on 28.12.2009 when the
injured - Pawan was brought to hospital by Virender with alleged
history of assault. He was medically examined by him vide MLC
Ex.PW4/A, and found that the injured had sustained five injuries. The
patient was conscious and oriented, his vitals were stable. On local
examination, he found following injuries:
(i) Incised wound about 8 cm x 1 cm over back about 2 cm
from vertebral LI on right side.
(ii) Stab wound about 2 cm x 1 cm over back about 2 cm
from vertebral LI on right side.
(iii) Stab wound about 2 cm x 1 cm left side of chest, about 2
cm inferio-lateral to left nipple.
(iv) Stab wound 2 cm x 1 cm in left subcostal region in
anterior axillary line.
(v) Incised wound about 7 cm x 2 cm over left elbow, joint
capsule open.
18. According to him, injuries no.1 and 5 were incised wound
while injuries no.2,3 and 4 were stab wound. The blood stained
clothes of the injured were seized by him and handed over to police
officials. PW5 - Dr. Yoel Dewa Paljor from St. Stephan Hospital,
Delhi went through the treatment record of the patient - Pawan and
gave certificate Ex.PW5/A opining the nature of injuries to be
grievous and dangerous. One injury has perforated the left lung
leading to leakage of air into the chest cavity and subcutaneous tissue.
As such, the oral testimony of prosecution witnesses finds substantial
corroboration from the medical evidence. The weapon of offence i.e.
sua used by accused Mahender was seized from the spot whereas the
chura (knife) could not be recovered. It is a matter of record that
accused Harender was arrested on 06.10.2010. He made a disclosure
statement that he had thrown the knife in the bushes. However, the
same could not be recovered. The non-recovery of weapon of offence
does not cast any dent on the prosecution version.
19. Hon'ble Supreme Court in Umar Mohammad and Ors.Vs.
State of Rajasthan (2007)14SCC711 has held:
"In any event, non recovery of incriminating material from the accused
cannot be a ground to exonerate them of the charges when the eye-
witnesses examined by the prosecution are found to be trustworthy.
35. In Krishna Mochi and Ors. v. State of Bihar 2002 CriLJ 2645 , this
Court held:
It has been then submitted on behalf of the appellants that
nothing incriminating could be recovered from them, which goes
to show that they had no complicity with the crime. In my view,
recovery of no incriminating material from the accused cannot
alone be taken as a ground to exonerate them from the charges,
more so when their participation in the crime is unfolded in
ocular account of the occurrence given by the witnesses, whose
evidence has been found by me to be unimpeachable."
20. Similar view was reiterated in Ram Singh vs. State of
Rajasthan, (2012) 12 SCC 339; Amit vs. State of Uttar Pradesh,
(2012) 4 SCC 107; Ambika Prasad Vs .State 1997CriLJ2853;
Joginder Singh @ Mor vs. State of Delhi, 2014(1)JCC51.
21. As regards submissions of learned Counsel for the appellants
that there was no motive to commit the crime, it is settled proposition
of law that when a case is based on eye witness account of the
incident, the motive pales into insignificance. Moreover, the evidence
regarding existence of motive which operates in the mind of accused
is very often very limited and may not be within the reach of others.
The motive drives the accused to commit offence will be known to
him and to no other. In Tarseem Kumar v. Delhi Admn., AIR 1994
SC 2585, the Hon'ble Supreme Court pointed out that where the case
of prosecution has been proved beyond all reasonable doubts on the
basis of the materials produced before the Court the motive looses its
importance. Moreover, when direct evidence regarding the assault is
worthy of credence and can be believed, the question of motive more
or less become academic as held in Molu versus State of Haryana,
1976 (4) SCC 362. Sometimes motive is clear and can be proved and
sometimes, however, the motive is shrouded in mystery and it is very
difficult to locate the same. If, however, the evidence of eye witness is
creditworthy and is believed by the court which has placed reliance on
that, the question whether there is motive or not become wholly
irrelevant. In the instant case, it has come on record that a quarrel had
taken place on 26.12.2009 between PW1-Pawan on the one hand and
both the accused on the other regarding seat in the train as the accused
persons asked Pawan to leave the seat which he refused to vacate.
Thereupon, accused persons hurled abuses to him and also threatened
him of dire consequences. Therefore, the accused persons may have
nurtured ill-will and grudge against Pawan and with that intent in
view, on 28.12.2009 both the accused persons armed with weapons
came and attacked Pawan and accused Mahender exhorted accused
Harender to finish him that day. Thereupon, they inflicted grievous
and dangerous injuries with sua and knife on vital parts of his body as
a result of which he had to remain in hospital for a period of five days.
As such, the motive to commit the crime in the instant case is duly
proved.
22. A suggestion was given to the prosecution witnesses that the
injured sustained injuries by falling on the road where glass pieces
were lying. This suggestion was not only denied by PWs Pawan and
Virender but also by Dr. Abhishek Biswas as well as Dr. Yoel Dewa
Paljor who went a step further by deposing that in such circumstances,
the person will also suffer abrasion on other parts of the body which
were not so in the instant case.
23. There is absolutely no substance in the submissions of learned
counsel for the appellant Mahender @ Guddu that he was only armed
with sua and at the most inflicted injuries no.1 and 5 as per the MLC
and, therefore, he did not share common intention with accused
Harender inasmuch as both the accused used to travel in the same
train in which injured Pawan used to travel. The quarrel on
26.12.2009 had taken place between the complainant and both the
accused and at that time they not only hurled abuses to him but also
threatened him with dire consequences. Pursuant thereto, on
28.12.2009, both the accused persons armed with sua and knife came
and attacked Pawan. At that time accused Guddu attacked Pawan with
sua on his back and exhorted Harender "Sale Ko Khatam Kar Ke
Jayenge" and thereafter they both assaulted him with sua and knife.
As observed in Ashok Kumar v. State of Punjab (AIR 1977 SC 109),
the existence of a common intention amongst the participants in a
crime is the essential element for application of this Section. It is not
necessary that the acts of the several persons charged with
commission of an offence jointly must be the same or identically
similar. The acts may be different in character, but must have been
actuated by one and the same common intention in order to attract the
provision. In fact, in Chinta Pulla Reddy v. State of A.P., 1993 (Supp
3) SCC 134, the Supreme Court held that Section 34 is applicable
even if no injury has been caused by the particular accused himself.
For applying Section 34 it is not necessary to show some overt act on
the part of the accused. In the instant case, the injured was unarmed
and there was absolutely no physical assault from his side and both
the accused came together to the spot, armed with sua and knife and
accused Mahender @ Guddu exhorted his co-accused to finish him.
All these circumstances make it clear that both the accused shared
common intention. Under these circumstances, the conclusion arrived
at by the learned Trial Court holding both the accused guilty of
offence under Section 307/34 Indian Penal Code does not suffer from
any infirmity which calls for any interference.
24. Coming to the quantum of sentence, it was submitted by
learned Counsel for the appellant - Harender that he was only 21
years old at the time of incident as such he should have been granted
benefit of probation. Moreover, he has already remained in jail for a
period of one year.
25. To appreciate the contention of learned Counsel for the
appellant, it would be appropriate to extract the provisions of Section
4(1) of Probation of Offenders Act, 1958 which reads as under:
"Section 4(1) in The Probation of Offenders Act, 1958
(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."
26. Thus, it is evident that the provisions of Section 4 are attracted
when a person is held guilty for an offence not punishable with death
or imprisonment for life. In the instant case, admittedly the injured
suffered grievous and dangerous injuries and as per the provisions of
section 307 IPC, the offenders were punishable with imprisonment for
life or imprisonment which may extend upto 10 years and with fine.
The question for consideration is if one of the possible punishment in
the instant case was imprisonment for life and fine, whether the case
would be out of bound for the applicability of Section 4 of the Act of
1958.
27. The question came up for consideration before a learned Single
Judge of this Court in Nadeem v State of NCT of Delhi and others,
[Crl. Appeal No.852/2011], wherein it was held as under:
"13. In Chaman Singh v. State, 1999(49) DRJ 182, the
question directly fell for consideration before a learned
Single Judge of this Court and while relying on Som Nath
Puri v. State of Rajasthan, AIR 1972 SC 1490, State of
Gujarat v. V.A. Chauhan, AIR 1983 SC 359 and State of
Rajasthan v. Kailash Chandra, 1995 SCC(Cri) 249 it was
held that where an accused is convicted of an offence
punishable under Section 307 IPC which is an offence
punishable with life imprisonment, the offender is not
entitled to the benefit of the Act of 1958. A Division Bench
of this Court in Manoj Tyagi v. Gaurav @ Chotu & Anr.,
(Crl.A.37/2011) decided on 25.05.2011 observed that when
an offender is held guilty under Section 307 IPC in case an
injury has been caused on the person of the victim, the
provision of Section 4(1) of the Act of 1958 will not be
applicable. Thus, if a person is held guilty for the offence
punishable under Section 307 IPC, he will not be entitled to
the benefit of Section 4 of the Act of 1958."
28. As such, appellant was not entitled to the benefit of probation.
Moreover, the offence committed by the appellants is quite grave and
serious in nature inasmuch as on a very trivial issue, grievous and
dangerous injuries were caused by them on the vital parts of the body
of injured, as such, the punishment extends up to imprisonment for
life or ten years and fine. However, keeping in view the young age of
the appellants coupled with their antecedents that they were not
involved in any other criminal case, they were sentenced to undergo
rigorous imprisonment for three (3) years and minimal amount of fine
of Rs.1,000/-, which in the facts and circumstances of the case, cannot
be said to be harsh which may warrant any further leniency. Under the
circumstances, the order on sentence dated 06.12.2011 does not call
for any interference.
29. The result of the aforesaid is that the appeals being bereft of any
merits are hereby dismissed.
30. The sentence of the appellant-Harender was suspended vide
order dated 21.07.2011 while that of Mahender @ Guddu on
01.08.2011. Both the appellants are directed to surrender before the
learned Additional Sessions Judge within ten days to serve the
sentence, failing which, necessary steps be taken by learned ASJ to
get the appellants arrested for serving the sentence.
A copy of the judgment along with Trial Court record be sent
back forthwith.
At the request of the counsel for the appellants, a copy of this
judgment be given dasti under the signature of the Court Master.
(SUNITA GUPTA)
JUDGE
AUGUST 22, 2014
rd
