Delhi High Court
Babli @ Shakuntla Devi vs State on 21 August, 2019
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.08.2019
+ CRL.A. 750/2018 & Crl.M.B.1144/2018 & Crl.M.A.49062/2018
BABLI @ SHAKUNTLA DEVI ..... Appellant
versus
STATE ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr.Javed Alvi, Advocate.
For the Respondent: Mr. Hirein Sharma, APP for the State.
Mr.Rajesh Sharma, Adv. for R-2 with Respondent
No.2/Complainant in person.
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Appellant impugns judgment dated 16.05.2018 and order on
sentence dated 24.05.2018 whereby appellant has been convicted of an
offence under Section 307/34 IPC and sentenced to undergo RI for a period
of three years and to pay a fine of Rs.1 lakh and in default of payment of
fine to undergo SI for a period of six months.
2. The allegations in the FIR are that the appellant along with her son
had a fight with the victim. The role ascribed to the appellant was that she
caught hold of the victim while her son started hitting the victim with a
Gainti (Pickaxe). It is further alleged that the appellant instigated her son to
hit the victim.
3. Son of the appellant was a juvenile and was separately tried before
the Juvenile Justice Board.
4. The Trial Court by the impugned judgment on conviction has held
that the accused had clear cut intention as well as knowledge to cause death
and accordingly held the appellant guilty of an offence under Section
307/34 of the IPC. The Trial Court was of the view that prosecution had
proved the case beyond reasonable doubt.
5. Learned counsel for the appellant points out that the Trial Court has
erred in holding that there was an intention to cause death or cause an
injury which the accused knew would in all likelihood cause death. Learned
counsel submits that the Trial Court has erred in incorrectly appreciating
the evidence and ascribing motive or knowledge to the appellant.
6. Learned counsel further submits that the role ascribed to the
appellant was of exalting and holding the victim whereas the role ascribed
to the son, who was a juvenile, was of actually causing the injury.
7. Learned counsel submits that the juvenile was tried before the
Juvenile Justice Board and on appreciation of the evidence the Board, by
judgment dated 04.06.2015, held that it did not seem that the juvenile
assaulted the victim with the intention to commit murder. The Board further
held that the juvenile inflicted injuries upon the victim in a sudden street
fight. The Board acquitted the juvenile of the offence under Section 307
IPC and convicted him for the offence punishable under Section 323/34.
8. Learned counsel further submits that the appellant has been
convicted solely by application of Section 34 i.e. common intention. He
submits that for the purpose of common intention, more than one individual
is required.
9. Learned counsel submits that since the main accused, who inflicted
injuries, has been convicted only of an offence under Section 323 IPC,
appellant could not have been convicted for an offence under Section 307
IPC by applying Section 34 IPC.
10. Learned counsel submits that no appeal was preferred by the State or
the victim against the judgment dated 04.06.2015 in the case of the juvenile
and said judgment has become final. Learned counsel further submits that
in view of the said judgment, the appellant at best could have been
convicted for an offence under Section 323 IPC.
11. Perusal of the judgment of the Board dated 04.06.2015 in the case of
the juvenile shows that on appreciation of evidence, the Board was of the
view that no intention or knowledge to cause death was attributable to the
juvenile that his action is likely to cause death or injury of such a nature as
is likely to cause death. Since neither the State nor the victim has filed an
appeal against the said order, the finding in the case of juvenile, that there
was no intention to cause death, has become final.
12. Clearly, as the juvenile/co accused has been convicted for an offence
under Section 323 IPC, the appellant could not have been convicted for an
offence under Section 307 IPC by application of Section 34 IPC.
13. Accordingly, the impugned judgment clearly suffers from an
infirmity and the conviction of the appellant under Section 307 IPC is liable
to be modified to a conviction under Section 323/34 IPC.
14. In view of the above, the impugned judgment dated 16.05.2018 is
modified. The conviction of the appellant is converted from conviction for
an offence under Section 307/34 IPC to Section 323/34 IPC.
15. Appellant has also filed an application under Section 482 Cr.P.C
seeking compounding of the subject offence under Section 323 IPC. It is
contended that the victim is a neighbour and the victim and the appellant,
with their families, have been living in the same locality for the last 25
years. It is submitted that after the subject incident in the year 2013, parties
have been living harmoniously as neighbours and no further incident of
quarrel has ever taken place.
16. Parties have settled their disputes with the intervention of elders and
other neighbours and with the intention of restoring peace and harmony in
the locality they have settled their disputes and complainant has agreed to
compound the subject offence.
17. The complainant is present in Court in person, represented by
counsel and identified by the IO. Complainant submits that she has settled
with the appellant and has no objection to the compounding of the subject
offence. As per the settlement, appellant has deposited an amount of
Rs.70,000/- with the Trial Court and the said amount along with interest
accrued, if any thereon has to be paid to the victim towards her medical
expenditure.
18. Under Section 320 Cr.P.C, Section 323 IPC is a compoundable
offence at the instance of the victim. Since the victim is present in Court
and has agreed to compounding of the said offence, in my view it would be
in the interest of justice to compound the subject offence. The offence is
accordingly compounded. Appellant is acquitted of the said offence.
19. The Trial Court is directed to release the compensation amount of
Rs.70,000/- deposited by the petitioner, along with interest accrued thereon,
if any, in favour of the complainant/victim.
20. Appeal and pending applications are accordingly disposed of in the
above terms.
21. Order Dasti under signatures of the Court Master.
AUGUST 21, 2019 SANJEEV SACHDEVA, J
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