Jitender & Anr. vs Manohar Lal & Ors.
2014 Latest Caselaw 822 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.A. 924/2010

%                                       Date of decision: February 12th, 2014

JITENDER & ANR.                                      ..... Petitioners
                          Through: Mr. H.K. Monga, Adv.

                          versus

MANOHAR LAL & ORS.                          ..... Respondents
                Through: Mr. O.P. Verma, Advocate for R-1 to 4.
                         Mr. Satish Kumar Verma, APP for State.

CORAM:
HON'BLE MS. JUSTICE VEENA BIRBAL

VEENA BIRBAL, J.

1. The present appeal is filed against the order of sentence dated 16.4.2010 passed by the learned ASJ, Delhi in SC No.147/2009 titled State vs. Manohar Lal & Ors., FIR No.221/2004 under Section 308/506/34 IPC P.S. Prasad Nagar on behalf of the complainants.

2. The brief facts leading to the filing of present appeal are as under:-

On 4.9.2004 at about 9.37 a.m. DD No.11A Ex.PW8/A was recorded in P.S. Prasad Nagar about a quarrel having taken place at house No.7091/10 Mata Rameshwari, Nehru Nagar, Karol Bagh, New Delhi. On the same day, another DD No.14A Ex.PW8/B was recorded around 10.20 am at the aforesaid police station on the information received from RML Hospital that injured

persons, namely, Manoj and Jitender were got admitted in the hospital by their father Khem Chand. The DD entry was handed over to HC Ashok Kumar who reached the aforesaid hospital where injured Manoj was declared unfit for statement and injured Jitender was found to be fit for statement. HC Ashok Kumar recorded the statement Ex.PW4/A of Jitender wherein he had alleged that they were having litigation qua property with respondent No.1/accused Manohar Lal due to which there was an enmity between them. On 3.9.2004, they had won the property case. On 4.9.2004 at about 9.00 a.m. while he was present in his house all the four respondents/accused persons came there and started abusing their father Khem Chand. On hearing the noise, appellant Jitender and his brother Manoj came out and told the respondents/accused persons not to quarrel with them. Thereupon, respondent No.4/accused Ashok Kumar and his brother Ravi i.e. respondent No.3 started beating Jitender. Respondent No.1 i.e. Manohar Lal and respondent No.2 Chand Prakash gave beatings to his brother Manoj with "saria" while respondents No.3 and 4 had caught hold of him and also gave kicks and fist blows to him. They had also given beatings to their parents. In the meanwhile, persons collected there and with their intervention the appellants were saved. The appellant No.1 informed the police and PCR van came there and removed them to hospital. During investigation, the spot was inspected. After completion of investigation, charge sheet was filed against the respondents No.1 to 4 for having committed offence punishable under Section 308/506/34 IPC.

3. The case was committed to Sessions wherein charge under Section 308/34 IPC was framed against the respondents.

4. To prove its case, prosecution in all had examined 15 witnesses, out of which Khem Chand PW2, Jitender PW4, Kamla Devi PW6, Manoj PW11 are the injured/eye witnesses. Remaining evidence relates to police and medical witnesses and remain unchallenged. The statement of respondents No.1 to 4 under Section 313 Cr.P.C. was recorded where they denied the incriminating evidence against them and pleaded innocence. In defence, the respondents had examined 5 witnesses i.e. DW1 to DW5.

5. Considering the evidence of the eye witnesses and medical evidence on record, the learned ASJ held the respondents guilty for the offence punishable under Section 308/34 IPC vide judgment dated 13.4.2010.

6. After hearing on the point of sentence, the learned ASJ observed that since the respondents were not having any involvement in any other criminal case and they were having family to support as sole bread earners and considering the age and other relevant factors and Probation Officer's Report, the respondents No.1 to 4 were released on probation for a period of one year on furnishing personal bond in the sum of Rs.10,000/- each with one surety in the like amount. It was further ordered that during the said period the respondents/accused persons shall maintain good behaviour and keep peace.

7. Aggrieved with the order of sentence, the present appeal has been filed by the appellants/injured persons.

8. The grievance of the appellant is that the learned trial court was not justified in extending the benefit of The Probation of Offenders Act, 1958 (hereinafter referred to as "the Act") to the respondents. It is also submitted that even after the release on probation, the respondents had threatened them.

Learned counsel has referred to complaint dated 1.6.2006 and another complaint dated 16.5.2010 addressed to SHO P.S. Sabzi Mandi and some other complaints made against the respondents during the pendency of the trial in the concerned police station. It is submitted that Manoj PW11 suffered serious injuries and as such it was not a fit case for the grant of probation.

9. On the other hand, learned counsel for respondent has argued that the alleged complaints relied upon are frivolous and false. None of these were brought to the notice of the learned trial court. It is submitted that one of the alleged complaint is after the passing of the judgment and even that has not been brought to the notice of the trial court otherwise the probation granted to the respondent would have been cancelled. It is further submitted that no action was also taken by the police as the complaints were not genuine. It is further submitted that even the appellant Manoj is normal after the incident and not paralyzed as is alleged. Even after the incident, he has got married and has two sons. He has got a separate business. It is submitted that a CD was also placed on record to substantiate their stand before the learned trial court. It is submitted that the same was even furnished before the trial court.

10. Learned counsel for respondents submits that considering the age, background and other relevant factors and after considering the Probation Officer's Report about each of the respondents, the benefit has been given.

11. I have heard counsel for the parties and perused the material on record.

12. The Act is a reformative measure and its object is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful

offenders are sentenced to undergo imprisonment in jail. The above object is in consonance with the present trend in the field of penology, according to which effort should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Modern criminal jurisprudence recognises that no one is a born criminal and that many crimes are the product of socio-economic milieu. Although not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of young offenders not guilty of very serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore provided that youthful offenders should not be sent to jail, except in certain circumstances. Reference is made to the judgment of Supreme Court, Jugal Kishore Prasad v. State of Bihar; AIR 1972 SC 2522.

13. The incident in the present case is of the year 2004. The matter was decided by the learned trial court on 16.4.2010. At the time of passing order on sentence, the age of respondents/accused persons Ravi, Ashok, Chander Parkash and Manohar Lal was 28 years, 37 years, 44 years and 51 years respectively and it was also noted by the learned trial court that both the parties were related to each other and were having family dispute. The respondents were not involved in any other criminal case. The report of The Probation Officer about each of the respondent/accused was also taken into consideration and were first offenders otherwise having good character. It was also observed that the respondents were sole bread earners of their family. It is not disputed by the learned counsel for appellant that the provisions of the Act are not

applicable in the present case. The learned trial court has exercised its discretion and released the respondents on probation under Section 4 of the Act. Even the nature of offence is also taken into consideration. There is nothing on record to show that appellant Manoj suffered paralysis nor is this pleaded before the learned trial court nor any document is placed on record to substantiate the same even at this stage. The MLC Ex.PW12/A dated 12.9.2004 on record shows that the appellant Jitender suffered simple injuries, MLC of Manoj Ex.PW10/A shows such kind of head injury can be sustained by fall.

14. The copy of the complaint to the SHO P.S. Sabzi Mandi alleged to have been made by petitioners against the respondents has been perused. No proof has been furnished to substantiate that the same was received in the concerned police station. It is alleged in the complaint that same was sent by post to the concerned police station. However, no postal receipt is annexed with the petition. The allegations in the complaint are that the respondents had pressurised the father of petitioners to withdraw civil case against them, failing which they would face dire consequences. It is not their stand that the alleged complaint was brought to the notice of learned Civil Judge where the civil suit is stated to have been pending. The stand of the respondents is that the alleged complaint is false and the same was never filed before the ld.trial court. No reason has been given as to why same was not filed before the ld.trial court which has granted the benefit of probation to the respondents. In these circumstances, a doubt is created about the genuineness of the aforesaid complaint. The other alleged complaints relied upon relate to the period when

the trial of the case was going on. The allegations in the alleged complaints are that respondents had pressurised the petitioners not to depose against them. The stand of the respondents is that alleged complaints are false and manipulated one and same were never placed before the ld.trial court also. Perusal of the record shows that there is no reference of the alleged complaints in their evidence also. In these circumstances, the contentions of petitioner has no force. The appellants have suffered the litigation for about 10 years including the present appeal. The requisite bonds had already been furnished by them and the probation period is over long back. There is nothing on record to show that the respondents are involved in some other case after the alleged incident.

In these circumstances, no illegality is seen in the impugned order. The appeal stands dismissed.

VEENA BIRBAL, J th FEBRUARY 12 , 2014 kks