Delhi High Court
Pawan Chaddha vs State on 27 January, 2016
Author: Sunita Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 27th January, 2016
+ CRL.A. 640/2011 & Crl. MA 18063/2012
PAWAN CHADDHA ..... Appellant
Through: Mr. Suman Kapoor, Advocate
versus
STATE ..... Respondent
Through: Mr. Akshay Malik, Additional Public
Prosecutor for the State.
Sub Inspector Mahesh Singh, P.S. Pandav
Nagar.
+ CRL.A. 966/2011
LAJPAT RAI VERMA ..... Appellant
Through: Mr. Gurmeet Singh, Advocate along with
appellant in person.
versus
PAWAN KUMAR CHADDHA & ORS. .... Respondents
Through: Mr. Suman Kapoor, Advocate
Mr Ashok Kumar Garg, Additonal Public
Prosecutor for the State.
Sub Inspector Mahesh Singh, P.S. Pandav
Nagar.
+ CRL.A. 947/2013
LAJPAT RAI VERMA ..... Appellant
Through: Mr. Gurmeet Singh, Advocate along with
appellant in person.
versus
MUKESH CHAND & ANR. ..... Respondents
Through: Mr. Suman Kapoor, Advocate
Mr Ashok Kumar Garg, Additonal Public
Prosecutor for the State.
Sub Inspector Mahesh Singh, P.S.Pandav
Nagar.
+ CRL.A. 1572/2013
VIKAS CHADDHA & ANR ..... Appellants
Through: Mr. Suman Kapoor, Advocate
versus
STATE GOVT OF NCT OF DELHI ..... Respondent
Through: Mr Ashok Kumar Garg, Additonal Public
Prosecutor for the State.
Sub Inspector Mahesh Singh, P.S/ Pandav
Nagar.
%
CORAM:
Crl.Appeals Nos.640/2011, 966/2011, 947/2013 &1572/2013 Page 1 of 20
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. Vide judgment dated 29.03.2011, learned Additional Sessions Judge (East),
Karkardooma Courts, Delhi in case FIR No.365/2008 under Section 308/34 registered at
Police Station Pandav Nagar, Delhi convicted the appellant - Pawan Chadha for offence
under Section 308 and Section 323/34 IPC while co-accused Vikas Chadha and Mukesh
Chadha were held guilty and convicted under Section 323/34 IPC.
2. Vide order dated 31.03.2011, convict - Pawan Chadha was sentenced to
undergo rigorous imprisonment for a period of three (3) years for offence under Section
308 IPC and was also directed to pay fine of Rs.10,000/-, in default to undergo simple
imprisonment for a period of one month. He was further sentenced to undergo simple
imprisonment for a period of six months for offence under Section 323/34 and to pay a
fine of Rs. 1,000/-, in default to undergo simple imprisonment for a period of 15 days.
The sentences were to run concurrently. The appellants/ convict - Vikas and Mukesh
were ordered to be released on probation of good conduct for a period of six months on
furnishing a personal bond in the sum of Rs.10,000/- each with one surety in the like
amount to keep peace and good behaviour.
3. Feeling aggrieved, initially the appellant - Pawan Chadha preferred an appeal
being Crl. Appeal No.640/2011. The complainant filed Crl. Appeal Nos. 966/2011 and
947/2013 seeking enhancement of sentence of the convicts Pawan Chadha and Mukesh
Chadha respectively. Thereafter, convicts Vikas Chadha and Mukesh Chadha filed Crl.
Appeal No.1572/2013 challenging the impugned judgment vide which they were
convicted under Section 323/34 IPC.
4. Since all appeals are arising out of the common judgment, as such, the same are
taken up together.
Prosecution case:
5. The police machinery swung in action on receipt of DD No.71B regarding a
quarrel on 02.09.2008 by Head Constable Govind Sahai (PW2), who alongwith
Constable Sushil Kumar (PW4) reached the spot i.e. A-98, Pandav Nagar, Delhi where
he met the complainant Lajpat Rai Verma in injured condition, who was bleeding from
his head. After preparing injury report, he sent the complainant to LBS Hospital
alongwith Constable Sushil. After collecting MLC of the injured, he recorded the
statement of the complainant Ex.PW1/A on which he prepared a ruqqa and got the case
FIR registered. During the course of investigation, statement of witnesses was recorded.
After completing investigation, charge-sheet was submitted against all the three accused
persons. The charge for offence under Section 308 IPC was framed against accused
Pawan Chadha whereas charge for offence under Section 323/34 IPC was framed
against accused Pawan Chadha, Vikas Chadha and Mukesh Chadha.
6. In order to substantiate its case, prosecution in all examined 13 witnesses. All
the accused in their statements recorded under Section 313 Cr.PC pleaded their
innocence and alleged false implication in this case. It was alleged that the complainant
had slipped from the stairs and received some injuries in the presence of Bunny Mehra
who tried to take him to the hospital but the complainant refused and got registered a
false case taking advantage of the injuries. The complainant wanted to take money for
vacating the premises through Sardar Mangal Singh and Sardar Mahender Singh. In
support of their defence one witness, namely, Sardar Mangal Singh (DW1) was
examined.
7. Vide impugned judgment, all the three accused were convicted and sentenced as
mentioned hereinbefore.
Submissions of appellants:
8. Assailing the findings of the learned Trial Court, learned counsel for the
appellants submits that out of 13 witnesses examined by the prosecution, the material
witnesses were the complainant - Lajpat Rai Verma (PW3), Bunny Mehra (PW6) and
Madhu Verma (wife of the complainant) - PW11. It is further submitted that Bunny
Mehra did not support the case of the prosecution. As regards, PW11, she in fact is not
an eye witness to the incident and has made material improvements in her testimony.
The whole case rests on the testimony of the complainant. However, the complainant
himself admitted that he had fallen down, therefore, the defence taken by the appellants
that he had sustained injuries due to fall from stairs is more probable. Further, the
concerned doctor who had prepared the MLC of the injured was not examined. The wife
of the complainant had made material improvements by deposing that her husband had
undergone heart surgery which fact was not stated by her in her statement under Section
161 Cr.PC nor the complainant deposed so. Moreover, there is nothing on record to
show that the appellant was aware about the heart surgery of the complainant. The
weapon of offence has also not been recovered. Under the circumstances, the
prosecution failed to bring home the guilt of the accused beyond reasonable doubt as
such they are entitled to be acquitted. Alternatively, it is submitted that there was only a
single injury, there was no premeditation and the incident took place on the spur of
moment. The accused did not go to the house of the complainant to cause any injury.
Had there been any intention on the part of the appellant to cause death of the
complainant, he would not have left him by giving only a single injury. Moreover, there
was no hostility between the parties prior to this incident. It is only after this incident
that an eviction petition was filed by the owner of the property - Pawan Chadha in
which an eviction order has been passed. The appeal preferred by the complainant
against the said order has been dismissed and he has been granted two years time to
vacate the premises. The complainant is still residing in the tenanted premises. It is
further submitted that it is not a case of conviction under Section 308 IPC and at the
most provisions of Section 323 IPC are attracted. Reliance was placed on Bishan Singh
& Anr. v. The State, AIR 2008 SC 131; Ramesh v. State, 2010 (I) JCC 796; Sunder v.
State, 2010 (1) JCC 700; Raju @ Rajpal and others v. State of Delhi, 2014 (3) JCC
1894; Ashok Kumar and another v. State of Delhi, Crl. Appeal No. 17/2011 decided
on 20.02.2015 and Desh Raj v. Kewal Krishan and others, 2010(1) JCC 48.
Submissions of the complainant:
9. Learned counsel for the complainant, on the other hand, submits that the accused
concealed the material facts before the learned Additional Sessions Judge and it was
never disclosed that accused Mukesh Chadha was involved in another case and an FIR
was registered against him. Had this fact been disclosed, he would not have been
granted the benefit of probation. Moreover, since Pawan Chadha has been convicted
with the aid of Section 34 IPC, therefore, even accused Mukesh Chadha is liable to be
convicted under Section 308 read with 34 IPC. As regards merits of the case, it was
submitted that presence of none of the accused at the spot has been disputed. The
impugned judgment does not suffer from any infirmity which calls for any interference
as such the appeals preferred by accused persons/ appellants deserve to be dismissed
and their sentence be enhanced. Reliance was placed on Ayyub and others v. State of
Uttranchal, 2006 (Crl. L.J) 1227.
Submissions of Additional Public Prosecutor for the State:
10. Learned Additional Public Prosecutor for the State submits that the testimony of
the complainant finds due corroboration from the medical evidence and the impugned
judgment does not call for any interference.
Discussion:
11. I have given my considerable thoughts to the respective submissions of learned
counsel for the parties and have perused the record.
Crl. Appeal No.640/2011
12. The most material witness is the complainant - Mr Lajpat Rai Verma on whose
statement (Ex.PW3/A), the police machinery swung in motion. He substantiated the
initial statement made by him to the police by deposing in the Court that he was
residing as a tenant under the appellant - P.K. Chadha. He could not give the date of
incident correctly by deposing that due to injuries suffered by him, he is not mentally
fit, but it was between 13/18.09.2008 at about 7.30 pm he had gone to ground floor to
tender rent to Pawan Chadha and offered him a cheque of Rs.6,600/- towards rent for
the month of September, 2008 and he received the cheque. Pawan Chadha asked him to
enhance the rent from that month itself, however, the complainant requested him to
increase the rent from October, 2008. On this accused misbehaved with him and pushed
him as a result of which he fell down. The appellant - Pawan Chadha then picked up a
saria and tried to give a blow with it, which he tried to save with his hand and the blow
struck him on his right wrist. When he tried to run from that place to save himself,
accused picked up a wooden leg of a cot and hit him with it on his head. When he raised
a cry, both the sons of the accused came there and started beating him with legs and fits.
He then called his wife Madhu Verma who came down and she too was beaten by the
accused. He started bleeding profusely from his head. In the meanwhile, one Bunny
Mehra, residing opposite his house came down on hearing his voice. Other persons also
gathered. Someone informed the PCR. Police came and took him to LBS Hospital
where he was treated. On seeing the police, the accused persons fled away threatening
that they will not leave him alive.
13. PW6 - Bunny Mehra did not support the case of prosecution as he deposed that
on 02.09.2008, on hearing noise of Mr Lajpat Rai Verma "main gir gaya, main gir
gaya, mujhe chot lag gai", he came out of his house and saw him lying on the road near
stairs. He was having injuries on his head. He took him to the hospital situated at
Pandav Nagar in a rickshaw. His son also reached at the hospital and he returned back.
In cross examination, he denied having made any statement mark „A‟ to the police.
14. PW11 - Smt. Madhu Verma is the wife of the complainant - Mr Lajpat Rai
Verma. She has also deposed that on 02.09.2008, her husband had gone to pay cheque
to the landlord - Pawan Chadha on the ground floor where he was having his office.
After ten minutes on hearing cries of her husband, she rushed down and saw that Pawan
Chadha and his two sons Vikas Chadha and Mukesh Chadha were beating her husband
with legs and fists. She tried to intervene but Pawan Chadha caught hold of her by her
neck and gave fist blow on her right shoulder and also abused her. In her presence,
Pawan Chadha who was holding a leg of cot gave a blow on the vertex of head of her
husband and he started bleeding profusely. Pawan Chadha knew that her husband had
undergone heart surgery and used to keep ill despite that he continued beating him.
Someone called PCR which arrived and took them to LBS Hospital.
15. As regards PW6 is concerned, he has chosen not to support the case of the
prosecution. Although this witness deposed that he had taken the complainant to
hospital in a rickshaw, however, as per the record on receipt of DD No.71B regarding a
quarrel, Head Constable Govind Sahai had reached the spot with Constable Sushil.
There they met complainant who was injured and bleeding from his head. He sent the
complainant to LBS Hospital alongwith Constable Sushil. His testimony finds
corroboration from Constable Sushil who took the injured to LBS Hospital and got him
admitted there. MLC Ex.PW5/A also corroborates their version as in the column of
„brought by‟ the name of Constable Sushil finds mention. Moreover, this is not even the
case of the appellants as according to them, Bunny Mehra tried to take the complainant
to hospital but he refused.
16. As regards PW11 - Madhu Verma, who claimed to be an eye witness regarding
giving a blow with the leg of a cot on the head of her husband by Pawan Chadha, same
does not find corroboration from the complainant, according to whom, after he was
given the blow with the leg of a cot on his head by Pawan Chadha, he raised a cry for
help and then both the sons of accused Pawan Chadha came. Then they started beating
him with legs and fists and thereafter he called his wife, who came down and she too
was pushed by the accused. The effect of the same, at the most, can be that the wife of
the complainant reached the spot when the complainant was beaten by all the three
accused persons with legs and fists but she is not an eye witness to the incident of
accused Pawan Chadha giving a blow with the leg of a cot on the head of the
complainant.
17. The fact, however, remains that there is the testimony of complainant who has
supported the case of prosecution on all material particulars. It is settled proposition of
law that a conviction can be based on the solitary testimony of a witness. Learned
counsel for the complainant relied upon Vadivelu Thevar vs The State Of Madras, AIR
1957 SC 614 where the appellants were charged with murder and were convicted on the
sole testimony of a witness. The Hon‟ble Supreme Court on consideration of relevant
authorities and provisions of Indian Evidence Act laid down the following proposition:
"10. ...
(1) As a general rule, a court can and may act on the
testimony of a single witness though
uncorroborated. One credible witness outweighs
the testimony of a number of other witnesses of
indifferent character.
(2) Unless corroboration is insisted upon by
statute, courts should not insist on corroboration
except in cases where the nature of the testimony
of the single witness itself requires as a rule of
prudence, that corroboration should be insisted
upon, for example in the case of a child witness, or
of a witness whose evidence is that of an
accomplice or of an analogous character.
(3) Whether corroboration of the testimony of
a single witness is or is not necessary, must depend
upon facts and circumstances of each case and
no general rule can be laid down in a matter like
this and much depends upon the judicial discretion
of the Judge before whom the case comes.
11. In view of these considerations, we have no
hesitation in holding that the contention that in a
murder case, the court should insist upon plurality
of witnesses, is much too broadly stated. Section
134 of the Indian Evidence Act has categorically laid
it down that " no particular number of witnesses
shall in any case be required for the proof of any
fact." The legislature determined, as long ago as
1872, presumably after due consideration of the
pros and cons, that it shall not be necessary for
proof or disproof of a fact, to call any particular
number of witnesses. In England, both before
and after the passing of the Indian Evidence Act,
1872, there have been a number of statutes as set
out in Sarkar's I Law of Evidence -9th Edition, at pp.
1 100 and 1 101, forbidding convictions on the
testimony of a single witness. The Indian Legislature
has not insisted on laying down any such
exceptions to the general rule recognized in s.
134 quoted above. The section enshrines the well
recognized maxim that "Evidence has to be
weighed and not counted". Our Legislature has
given statutory recognition to the fact that
administration of justice may be hampered if a
particular number of witnesses were to be insisted
upon. It is not seldom that a crime has been
committed in the presence of only one witness,
leaving aside those cases which are not of
uncommon occurrence, where
determination of guilt depends entirely on
circumstantial evidence. If the Legislature were to
insist upon plurality of witnesses, cases where the
testimony of a single witness only could be
available in proof of the crime, would go
unpunished. It is here that the discretion of the
presiding judge comes into play. The matter thus
must depend upon the circumstances of each case
and the quality of the evidence of the single witness
whose testimony has to be either accepted or
rejected. If such a testimony is found by the court to
be entirely reliable, there is no legal impediment to
the conviction of the accused person on such proof.
Even as the guilt of an accused person may be
proved by the testimony of a single witness, the
innocence of an accused person may be established
on the testimony of a single witness, even though a
considerable number of witnesses may be
forthcoming to testify to the truth of the case for
the prosecution. Hence, in our opinion, it is a sound
and well- established rule of law that the court is
concerned with the quality and not with the
quantity of the evidence necessary for, proving or
disproving a fact.
Generally speaking, oral testimony in this context
may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court
should have no difficulty in coming to its conclusion
either way-it may convict or may acquit on the
testimony of a single witness, if it is found to be
above approach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court, equally has no difficulty in
coming to its conclusion. It is in the third
category of cases, that the court has to be
circumspect and has to look for
corroboration in material particulars by reliable
testimony, direct or circumstantial. There is
another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist
on plurality of witnesses in proof of any fact, they
will be indirectly encouraging subornation of
witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally
has to weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and free from
all taints which tend to render oral testimony open
to suspicion, it becomes its duty to act upon such
testimony. The law reports contain many
precedents where the court had to depend and act
upon the testimony of a single witness in support of
the prosecution. There are exceptions to this rule,
for example, in cases of sexual offences or of the
testimony of an approver; both these are cases in
which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a
single witness is entirely reliable. We have,
therefore, no reasons to refuse to act upon the
testimony of the first witness,which is the only
reliable evidence in support of the prosecution."
18. In view of the same, conviction can be based on the solitary testimony of a
witness. It is only as a matter of prudence that the Courts insist upon corroboration.
Such corroboration, in the instant case, is available through medical evidence. The MLC
of the complainant was prepared by Dr D. Chandra. Since this doctor had left the
services of the hospital and his present whereabouts were not available in the records of
the hospital, as such, Dr S.B. Jangpangi (PW10) appeared and deposed that as per the
MLC following injuries were observed on his person:
(i) CLW 8x2x.5 cms over central parieto occipital region.
(ii) Swelling and tenderness right forearm and wrist.
(iii) Abrasion 1x1 cm over right wrist.
The testimony of the complainant that accused Pawan Chadha tried to give a
saria blow and while he saved the same with his hand, the saria struck him on his right
wrist, finds corroboration from the injuries as per the MLC which reflects that there was
swelling and tenderness right forearm and wrist. Similarly, his testimony that he was hit
with a wooden leg of a cot on his head as a result of which he started bleeding
profusely, finds corroboration from the medical evidence which reflects that there was
CLW 8x2x.5 cms over central parieto occipital region. Moreover, complainant
sustained injuries in the incident. It is settled law that testimony of an injured witness
stands on a high pedestal than any other witness. That being so, even if PW6 - Bunny
Mehra did not support the case of the prosecution or the wife of the complainant
reached the spot after he was hit by wooden leg of a cot on his head, there is no reason
to disbelieve the testimony of the complainant who stood the test of cross examination
and despite lengthy cross examination, nothing material could be elicited to discredit his
testimony. Moreover, none of the appellants have disputed their presence at the spot at
the time of the incident.
19. The appellants had taken the plea that the complainant slipped from the stairs
and sustained injuries and in order to substantiate this plea they examined Mangal Singh
- DW1, who deposed that after slipping from stairs, the complainant hit himself on a
column and sustained injuries as his head struck with a pillar. Learned Trial Court
rightly referred to the photographs placed on record by the complainant and observed
that under no circumstances a person could hit his head with a pillar after falling from
the staircase as the said pillar was at a great distance from the staircase and parallel to
the staircase.
20. The other plea taken by the appellants is that the complainant demanded money
through Sardar Mangal Singh and Sardar Mahender Singh for vacating the house.
Earlier also, he had received money from one Chunnilal for vacating the tenanted house.
The complainant had categorically denied the suggestion regarding demanding any
money for vacating the house. Sardar Mangal Singh, examined as DW1, has nowhere
deposed that any money was demanded by the complainant through him for vacating
the house. Sardar Mahender Singh has not been examined by the appellants. Under the
circumstances, there is no merit in this plea taken by the appellants. Although at the fag
end of the trial, the appellants took the plea that the complainant had received money
for vacating the house from one Chunnilal and DW1 also deposed in this regard.
However, no such suggestion was given to complainant and such a plea taken for the
first time in the statement of accused recorded under S.313 Cr.PC and then by
examining DW1, does not inspire confidence . Learned Trial Court has evaluated the
evidence led by prosecution in correct perspective in arriving at a conclusion that it was
the appellants who had inflicted injuries on the person of the complainant.
21. The next question which arises for consideration is as to whether the act of
accused Pawan Chadha in causing injuries on the person of the victim, attracts
ingredients of offence under Section 308 IPC. In order to constitute an offence under
Section 308 IPC it is to be proved that the said act was committed by the accused with
the intention or knowledge to commit culpable homicide not amounting to murder and
that the offence was committed under such circumstances that if the accused, by that
act, had caused death, he would have been guilty of culpable homicide. The intention or
knowledge on the part of the accused, is to be deduced from the circumstances in which
the injuries had been caused as also the nature of injuries and the portion of the body
where such injuries were suffered. In this case, no previous enmity or dispute between
the appellants and the complainant could be proved. There was no premeditation. The
quarrel had taken place on a trivial issue. The nature of injuries suffered by the
complainant were opined to be simple caused by blunt object. Apparently, the injuries
were not caused with the avowed object or knowledge to cause his death. PW11 was not
put to any serious harm though she had also reached the spot. Sons of Pawan Chadha
were not found present at the spot initially when according to complainant he had gone
to tender rent. It was only subsequently that they reached the spot and even at that time,
as per the complainant‟s own version, they gave only legs and fist blows. It was a case
where the injuries were caused in a quarrel which took place on a trivial issue i.e. for
enhancement of rent and the appellants caused simple hurt with blunt object to the
victim - Lajpat Rai Verma. Merely because the injuries were found on the head, it
cannot be said that such injury was caused with an intention to commit culpable
homicide.
22. In Bishan Singh & Anr. (supra), six appellants were convicted by the trial Court
under Section 308/147/149 for assaulting the complainant with lathis. The appellants
came in appeal before the Supreme court where it was held that accused can be held
guilty under Section 308 IPC if there was requisite intention or knowledge on their part
to commit culpable homicide. Six persons allegedly accosted the injured. They had
previous enmity. Although overt act had been attributed against each of the accused
who were having lathis, only seven injuries had been caused and out of them only one
of them was grievous, being a fracture on the arm, which was not the vital part of the
body. Therefore, it was held that appellants cannot be said to have committed any
offence under Section 308 IPC and were instead held liable to be convicted under
Section 323 and 325 IPC.
23. In Ramesh (supra), this Court altered the conviction from 308/34 to 323/34 and
reduced the two years sentence to probation. It was held that assault was not
premeditated and merely because an injury was found on the head, it cannot be said that
such an injury was caused with the intention to commit culpable homicide.
24. Similarly, in Sunder (supra), this Court altered the conviction of the appellant
from Section 308 to 323 IPC and reduced the six months imprisonment to probation. It
was held that in order to prove offence under Section 308 IPC, prosecution was required
to prove that the injury was caused with such intention or knowledge and under such
circumstances that if it had caused death, the act of appellant would have amounted to
culpable homicide not amounting to murder. The entire incident took place during the
course of altercation and there is no intention to cause culpable homicide when weapon
of offence used is a wooden lemon squeezer.
25. Again in Raju @ Rajpal (supra), this Court altered the conviction from Section
308 to 323/34 and reduced the sentence to probation. It was held that the quarrel had
taken place on a trivial issue. The appellants have clean antecedents and are not
involved in any criminal activities. The nature of injuries were simple and injuries were
not caused with the avowed object or knowledge to cause death.
26. Similarly in Ashok Kumar (supra), this Court altered the conviction of Section
308 IPC to Section 323/34 IPC and reduced the sentence to probation and
compensation. It was held that from the sequence narrated by the complainant, it
appears that a quarrel erupted all of a sudden over the property and the appellants in the
heat of passion gave beatings to the complainant. Injuries were opined by the doctor as
simple caused by a blunt object. Nature of injuries are not such which will be sufficient
to indicate that the appellants had any intention or knowledge that by this act they
would have caused death of complainant.
27. In Desh Raj (supra), the revision petition was filed by the complainant against
the acquittal of the respondents under Section 308 IPC by the Sessions Judge and
conviction of the respondents only under Section 323/34 IPC. Sessions Judge sentenced
them to undergo probation for one year taking into account that the accused persons
were not previous convicts, the parties used to live in the same building and there used
to be frequent quarrels between both the parties on petty issues. It was held by this
Court that the trial court had acted on the lines of reformative and retributive purpose on
sentencing and had given due regard to the age, character and antecedents of the
offender. The power to grant probation is the discretion of the court which is to be
exercised according to the circumstances of each case. This discretion has been
exercised fairly hence revision was dismissed. In Ayyub (supra) relied upon by counsel
for the complainant, facts were entirely different. In this case, accused persons armed
with lathies went to the field and started beating injured, which showed their
premeditation. Moreover, despite convicting the accused under Section 308/34 IPC,
their sentence was reduced from two years to one year only.
28. The present case is squarely covered by these authorities. Learned Trial Court
has convicted the appellant under Section 308 IPC on the ground that the appellant
Pawan Chadha initially hit the complainant with a saria. He fell down. When he tried to
stand up, he was again given a blow with a wooden leg of the cot on vital part of the
body i.e. head. Moreover, PW11 deposed that Pawan knew that her husband has
undergone heart surgery despite that he continued beating him. Thus knowledge that the
accused could have caused death by his act is implicit in his act. The Trial Court
overlooked the fact that there was no premeditation. The entire incident took place on
the spur of the moment. Injuries were opined to be simple. There were material
improvements in the testimony of PW11 regarding knowledge of the accused that her
husband had undergone heart surgery as no such statement was made in earlier
statement recorded under Section 161 Cr.PC. Even complainant has not deposed so.
29. Under the circumstances, I am of the view that ingredients of Section 308 IPC
are not attracted in this case and the case falls within the ambit and scope of Section 321
IPC which envisages that whoever voluntarily with intention causes hurt to any person
or with the knowledge that he is likely thereby to cause hurt to any person, is said
„voluntarily to cause hurt‟. Section 323 IPC provides punishment for voluntarily
causing hurt for a term which may extend to one year or fine which may exceed up to
Rs.1,000/- or both.
30. For the foregoing reasons, the conviction of the appellant - Pawan Chadha under
Section 308 IPC is set aside and he is convicted under Section 323 IPC.
31. Accordingly, this appeal filed by the appellant - Pawan Chadha is partly allowed
by altering his conviction from Section 308 IPC to Section 323 IPC while maintaining
his conviction under Section 323/34 IPC.
32. As regards quantum of sentence, admittedly, it was basically a landlord and
tenant dispute. There is nothing on record to show that the appellant - Pawan Chadha
has any previous criminal record. Keeping in view these facts, the appellant - Pawan
Chadha is ordered to be released on probation on his furnishing personal bond in the
sum of Rs.10,000/-with one surety in the like amount, to maintain peace, tranquillity
and good behaviour for a period of two (2) years to the satisfaction of concerned Trial
Court. He is further directed to pay a sum of Rs.75,000/- as compensation to the
complainant - Lajpat Rai Verma. The compensation amount be deposited before the
Trial Court concerned within eight (8) weeks from pronouncement of this judgment. In
case, the compensation amount is not deposited by him, he shall have to undergo simple
imprisonment for a period of six (6) months. The amount already deposited towards fine
shall be given adjustment while making deposit in terms of this order. The
compensation amount, if deposited, be released in favour of the complainant - Lajpat
Rai Verma by the Trial Court.
Crl. Appeal No.966/2011.
33. This appeal has been filed by the complainant seeking enhancement of sentence
of convict Pawan Chadha, during the course of arguments, no cogent ground was given
by learned counsel for the appellant seeking enhancement of the sentence. In any case,
in view of the fact that while deciding the Crl. Appeal No.640/2011 preferred by Pawan
Chadha, his conviction under Section 308 IPC has been set aside, therefore, there is no
merit in this appeal and the same is dismissed.
Crl. Appeal No.947/2013
34. This appeal has been filed by the complainant seeking enhancement of sentence
of convict Mukesh Chadha, the same has been filed primarily on the ground that he
could not have been granted benefit of probation as he was involved in another criminal
case. It is alleged that pursuant to an information received under Right to Information
Act, it has been revealed that this accused was involved in another criminal case bearing
FIR No.315/2005 Police Station Pandav Nagar, Delhi and had this fact was disclosed,
he would not have been granted benefit of probation.
35. Section 360 Cr.PC which provides for release of an accused on probation so far
as is material for the present purpose reads as under:
"360. Order to release on probation of good conduct or after
admonition.
(1) When any person not under twenty- one years of age is
convicted of an offence punishable with fine only or with
imprisonment for a term of seven years or less, or when any
person under twenty- one years of age or any woman is-
convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction is proved
against the offender, if it appears to the Court before which he is
convicted, regard being had to the age, character or antecedents
of the offender, and to the circumstances in which the offence
was committed, that it is expedient that the offender should be
released on probation of good conduct, 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: Provided
that where any first offender is convicted by a Magistrate of the
second class not specially empowered by the High Court, and the
Magistrate is of opinion that the powers conferred by this section
should be exercised, he shall record his opinion to that effect, and
submit the proceedings to a Magistrate of the first class,
forwarding the accused to, or taking bail for his appearance
before, such Magistrate, who shall dispose of the case in the
manner provided by sub- section (2).."
36. A bare perusal of this Section goes to show that the accused is not entitled to be
released on probation if he is "convicted" of an offence. However, as per averments
made in appeal itself, this accused was facing trial in a case under Copyright Act in FIR
No.315/2005 Police Station Pandav Nagar, Delhi. Admittedly, it is not even the case of
the complainant that he was convicted in this case. That being so, mere pendency of
another criminal case that too under Copyright Act is no bar to grant of probation to the
appellant - Mukesh Chadha. As such, there is no merit in this appeal Same is
accordingly dismissed.
Crl. Appeal No.1572/2013
37. This appeal has been filed by the convicts Vikas Chadha and Mukesh Chadha
challenging their conviction under Section 323/34 IPC is concerned, the same is devoid
of merit as there is testimony of the complainant that when he raised alarm these
appellants, being the sons of Pawan Chadha came and they joined Pawan Chadha in
giving him leg and fist blows. Not only that, they also gave blows to the wife of the
complainant. His testimony finds substantial corroboration in this regard by PW11
Madhu Verma. Under the circumstances, this appeal is dismissed.
38. The sum up of the aforesaid discussion is that Crl. Appeal Nos. 966/2011 and
947/2013 filed by the complainant and Crl. Appeal Nos. 1572/2013 filed by Vikas
Chadha and Mukesh Chadha are dismissed. The Crl. Appeal No.640/2011 filed by
Pawan Chadha is disposed of by altering his conviction and modifying the sentence, as
mentioned hereinbefore.
All the appeals stand disposed of accordingly.
Pending CM also stands disposed of.
Trial Court record be sent back forthwith.
(SUNITA GUPTA)
JUDGE
JANUARY 27, 2016/rd
