Delhi High Court
Suresh vs State on 10 January, 2014
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 838/2001
SURESH ..... Appellant
Through: Mr. Arvind Kr. Patil, Advocate
versus
STATE ..... Respondent
Through: Mr.P.K.Mishra, Additional Public
Prosecutor for Respondent-State
with ASI N. Ram, P.S. Sarojini
Nagar
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 10.01.2014
Vide impugned judgment of 9th October, 2001 appellant herein has
been convicted for the offence under Section 307/324/34 of IPC and vide
order of 10th October, 2001 he has been sentenced to rigorous
imprisonment for three years with fine for the offence under Sections
307/34 of IPC and for the offence under Section 324/34 of IPC, he has
been sentenced to rigorous imprisonment for two years with fine and with
default clause. Both the sentences are to run concurrently. The factual
background of this case emerging from impugned order is as under: -
"Police has filed the present challan against accused
Gopi and Suresh U/s 307/324/34 IPC. The facts leading to the
filing of the present challan are that one Pramod Yadav
lodged a report with the police of police station Sarojini
CRL.A. 838/2001 Page 1
Nagar alleging that on 15.8.2000 it was the day of Raksha
Bandhan when accused Suresh and Gopi who were his
neighbours picked up a quarrel with him. Again on the same
day at about 9 P.M. his nephew injured Chotu Shah was
going towards the toilet near Indira Camp juggi when
accused Suresh is alleged to have caught hold of him and
accused Gopi is alleged to have inflicted knife injuries on his
abdomen and on his other parts of the body. When
complainant Pramod Yadav reached there to intervene
accused Suresh also caught hold of him and accused Gopi
stabbed him to his right side thigh with a knife as a result of
which both of them sustained injuries. Both the accused
allegedly fled away from the spot. Both the injured persons
were removed to AIIMS hospital by one Ramchander. On the
basis of statement of Pramod Yadav police registered the case
and started the investigation. Subsequently both the accused
persons were allegedly arrested and from the possession of
accused Gopi one button-actuated knife was allegedly
recovered. On the MLC of Chotu Shah injury were opined to
be grievous whereas injury on the person of Pramod Yadav
were opined to be simple caused by sharp edged object.
Accordingly the present challan was filed against the accused
persons."
During trial, deposition of eight witnesses has been recorded to
prove prosecution's case. Appellant in his statement under Section 313 of
CRL.A. 838/2001 Page 2
Cr.P.C. has denied the prosecution case and had pleaded false
implication. Trial concluded with conviction of appellant and his co-
accused, which is under challenge in this appeal.
The material deposition is of injured-Chotu (PW-5); Ram Chander
(PW-1), who had removed the injured to the hospital and has provided
corroboration to the ocular version. Dr. Vinit Malik (PW-3) has proved
the MLC of the injured. SI Raj Kumar (PW-8) is the Investigating Officer
of this case, who had filed charge-sheet after completion of the
investigation.
At the hearing, impugned judgment was assailed by learned
counsel for appellant on the ground that even if substratum of prosecution
case is accepted, still the offence under Section 307/34 of IPC is not
made out. Lastly, it was submitted on behalf of appellant that appellant is
a poor person who earns is livelihood by working as a Rickshaw Puller
and has three children and a wife to support and so, he be released on
probation.
Learned Additional Public Prosecutor for respondent-State
supported the impugned judgment and submitted that there is no illegality
or infirmity in it as appellant had facilitated the commission of offence in
question.
Upon hearing both the sides and on perusal of the certified copy of
deposition on record and impugned judgment, I find that even trial court
has noticed in the impugned judgment that there was no previous enmity.
The role attributed to appellant is of catching hold of the injured-Chhotu
(PW-5), who had sustained grievous injuries. The injuries sustained by
the injured have not been opined to be dangerous to life. Otherwise also,
CRL.A. 838/2001 Page 3
in the facts and circumstances of this case, I find that the offence
committed by appellant comes within the ambit of Section 325/34 of IPC,
which is punishable with imprisonment upon seven years with fine.
Finding the conviction of appellant for the offence under Sections 307/34
of IPC to be unsustainable, it is altered to Sections 325/34 of IPC.
Considering the fact that appellant has clean antecedents and has
faced the agony of these proceedings for more than one decade and has
family responsibilities to shoulder, I find no good reason to deny the
benefit of probation to appellant. Considerations which ought to weigh
with the court at the stage of quantum of sentence in a case like the
instant one have been highlighted in Chandreshwar Sharma v. State of
Bihar (2000) (SCC) 245 which are as under: -
"From the perusal of the judgment of the learned
Magistrate as well as the court of appeal, and that of the
High Court, it transpires that none of the forums below
had considered the question of applicability of Section 360
of the Code of Criminal Procedure. Section 361 and
Section 360 of the Code on being read together would
indicate that in any case where the court could have dealt
with an accused under Section 360 of the Code, and yet
does not want to grant the benefit of the said provision
then it shall record in its judgment specific reasons for not
having done so. This has apparently not been done,
inasmuch as the Court overlooked the provisions of
Sections 360 and 361 of the Code of Criminal Procedure.
As such, the mandatory duty cast on the Magistrate has not
CRL.A. 838/2001 Page 4
been performed."
Applying the afore-noted dictum of Apex Court in Chandreshwar
(supra) to the facts of the instant case, appellant is granted probation.
Upon appellant furnishing probation bond in the sum of `30,000/- for one
year with one local surety of the like amount to the satisfaction of trial
court within two weeks, he be released on probation.
Upon completion of period of probation one year, a report be
submitted by the Probation Officer to trial court. In case, appellant fails to
complete the probation for a period of one year, then he shall be liable to
undergo appropriate sentence. Let appellant appear before trial court on
31st January, 2014 to furnish the probation bond.
Trial court be apprised of this order forthwith.
This appeal is accordingly disposed of in aforesaid terms.
(SUNIL GAUR)
JUDGE
JANUARY 10, 2014
s
CRL.A. 838/2001 Page 5
