Delhi High Court
Raj Kumar vs State on 13 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 04th February, 2019
Judgment delivered on: 13th February, 2019
+ CRL.A. 1091/2018 & Crl.M.(Bail) 1695/2018 & Crl.M.A.
50253/2018 (Probation)
RAJ KUMAR ..... Appellant
versus
STATE ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr.Amit Kumar and Mr.Subhash Baghel, Advs.
For the Respondent: Mr.Hirein Sharma, APP
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J
CRL.A. 1091/2018 & Crl.M.(Bail) 1695/2018 & Crl.M.A.
50253/2018 (Probation)
1. Appellant impugns order on conviction dated 06.07.2018
convicting the Appellant for the offence punishable under section
308/34 IPC and order on sentence dated 09.07.2018 directing the
Appellant to undergo rigorous imprisonment for a period of two years
with fine of Rs 5000/- and in default thereof to undergo simple
imprisonment of three months.
2. Case of the prosecution is that on 05.09.2012 at around 9:00
pm Appellant along with 4-5 other persons physically assaulted the
complainant with wooden sticks, iron pipes and glass bottles outside
his house causing injury on his head and other body parts. It is alleged
that the quarrel between the parties took place over possession of land.
3. In support of its case, prosecution examined 11 witnesses. The
statement of the injured/complainant (PW1) was corroborated by the
statement of his wife (PW4) and a tenant (PW5). Further medical
evidence brought on record by Dr. Mohd. Parvej Salam (PW7), Dr.
Bhavesh Chadha (PW9) and Dr. Jaskaran (PW10) supported the case
of the prosecution and proved the nature of injuries sustained.
4. Based on the evidence on record the Trial court inter-alia held
as under:
"The prosecution has given a clear account of events and
has proved that accused Raj Kumar had assaulted and
injured Rakesh pitilessly. The prosecution has been
successfully able to prove its case within the ambit of
provisions of Section 308 IPC beyond reasonable doubt
against accused Raj Kumar."
5. Appellant impugns his conviction and sentence. It is inter alia
contended that the Trial Court has erred in not appreciating that there
were material contradictions in the version given by different
prosecution witnesses and the prosecution had failed to establish the
involvement of the petitioner.
6. Pending the disposal of appeal, Appellant has filed subject
application under section 360 Cr.P.C and under section 4 of Probation
of Offenders Act seeking benefit under it.
7. It is submitted by Learned counsel for the Appellant, that the
Appellant is the sole bread earner of the family. He has the
responsibility of his minor son and aged parents who are suffering
from various old age ailments. The family of the Appellant has
financial stringency. It is difficult for them to meet their day to day
expenditure and the education of the minor son is getting hampered
due to economic condition.
8. Report was called for from the probation officer. Report dated
01.02.2019 submitted by the probation officer shows that enquiry
made confirm that accused has aged parents, wife and a minor son in
his family. Father of the accused is medically unfit and requires
medical treatment. Accused is the sole bread earner of the family.
9. Record reveals that accused has no criminal antecedents except
the subject case. No behavioural pattern was observed and has no
habit of any kind of addiction. Probation officer has reported that the
accused is repentant of his past misdeed and there does not appear to
be a future possibility of committing crime or organize any criminal
activity. Report further indicates that the accused has been rectified
and is ready to comeback to society and his family.
10. Reliance may be had to the decision in Rattan Lal vs. State of
Punjab: AIR 1965 SC 444, wherein the Supreme Court noted the
philosophy behind the grant of probation:-
"The Act is a milestone in the progress of the modern
liberal trend of reform in the field of penology. It is the
result of the recognition of the doctrine that the object of
criminal law is more to reform the individual offender
than to punish him........"
11. Court has to consider the circumstances of the case, nature of
offence and character of the offender while exercising the power
which is discretionary. Powers under Section 4 of the Probation of
Offenders Act vest with the Court when any person is found guilty of
the offence committed, not punishable with death or imprisonment for
life. This power can be exercised by the Court even at appellate or
Revisional stage.1
12. Though Appellant has been convicted under Sections 308/34 of
the IPC but in the facts and circumstances of the present case and after
considering the nature of the offence, the character of the offender, the
report of the Probationary Officer, Appellant herein leading a
disciplined life on the reformed path and having a fixed place of
abode, I am of the view that this is a fit case for extending the benefit
of Section 4 of Probation of Offenders Act to the Appellant.
Sitaram Paswan v. State of Bihar; AIR 2005 SC 3534
13. Therefore, while confirming the conviction of appellant under
Section 308/ 34 of IPC, it is directed that he be released on probation
on entering into a bond, within a period of two weeks from today, in
the sum of Rs. 10,000/- with one surety of like amount, before the
concerned trial Court, for keeping peace and good behaviour for a
period of one year. In case Appellant does not maintain good conduct
during the period of probation then he shall be liable to undergo the
substantive sentence as awarded by the Trial Court.
14. Applications and the Appeal are disposed of in the above terms.
15. Order Dasti under the Signatures of Court Master
SANJEEV SACHDEVA, J
FEBRUARY 13, 2019/HJ
