Denial vs State Of Punjab

Surya Partap Singh, J.

The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 24.08.2005, passed by the Court of learned Additional Sessions Judge (Ad hoc), Jalandhar, hereinafter being referred to as ‘trial Court’ only.

Briefly stating the facts emerging from record are that one FIR, i.e. the FIR No.52 dated 06.04.2004, was lodged at the instance of ‘Vishal Thapar’, hereinafter being referred to as ‘complainant’ only. The abovesaid FIR was lodged for the commission of offence punishable under Sections 326, 324, 452, 148, 149 of Indian Penal Code, Police Station Division No.5, Jalandhar. In the wake of abovementioned FIR, the investigation was taken up by the police, and as an outcome of abovesaid investigation, the appellant along with his co-accused, namely ‘Sonu’, was sent to face trial before the learned trial Court.

The appellants participated in the abovementioned trial. By virtue of judgment dated 24.08.2005, hereinafter being referred to as ‘impugned judgment’, the abovesaid trial culminated into conviction of the appellant and acquittal of the above-named co-accused. Thus, vide order of the even date, i.e. dated 24.08.2005, on the point of quantum of sentence, hereinafter being referred to as ‘impugned order’, following sentences were awarded to the appellant:-Offence under Sentence Section Rigorous imprisonment for a period of five years and to pay a fine of Rs.2000/- and in default thereof to further 450 of IPC undergo rigorous imprisonment for a period of three months. 326 of IPC Rigorous imprisonment for a period of three years and to pay a fine of Rs.1000/- and in default thereof to further undergo rigorous imprisonment for a period of one month. 324 of IPC Rigorous imprisonment for a period of six months.

Aggrieved of the abovementioned judgment of conviction and order of sentence, the present appeal has been preferred.

In nut-shell, the facts emerging from record are that the FIR of this case came into being at the instance of ‘Vishal Thaper’, the complainant herein. It was stated by the abovenamed complainant that on the intervening night of 04/05 April, 2004, at about 12:30 am, when he was sleeping in his room, ‘Daniel @Labha’ (the appellant herein) armed with sword (kirpan) and his brother ‘Sonu’ (the co-accused) armed with an iron rod, along with 3-4 unknown persons, entered his room. According to complainant, ‘Sonu’ exhorted to teach a lesson to the complainant and demanded money. The complainant further stated that thereafter, the appellant gave a sword blow, which hit the back/neck of the complainant, and accused ‘Sonu’ gave a blow with iron rod on his left shoulder. As per complainant, thereafter, the appellant gave two more blows with swords, and that the complainant raised his left hand, due to which his ring finger and little finger got injured.

According to complainant, in response to his call for help, his brother ‘Rakesh Kumar’ and other family members came to rescue him and thereafter, the accused persons fled from the spot on their scooters/motorcycles along with their respective weapons. The complainant further alleged that the motive behind the occurrence was that the appellant owed a sum of Rs.5,000/- to him.

It was a case of the prosecution that pursuant to abovementioned complaint, formal FIR of this case was lodged and the investigation taken up. According to prosecution, during the course of investigation, the Investigating Officer inspected the spot, prepared rough site plan of the place of occurrence, recorded the statement of witnesses under Section 161 CrPC, and completed other usual formalities of investigation. Thereafter, the final report under Section 173 of CrPC was filed.

To discharge its burden, of proving the charges against the appellant, the prosecution in the instant case had relied upon oral and documentary evidence, both. The documents proved, and marked with exhibits, by the prosecution, were:-Ex.PA - Rough site plan of the place of occurrence Ex.PA - Statement of complainant Ex.PA/1 - The information memo sent to the police station (ruqqa) Ex.PA/2 - Copy of First Information Report Ex.PB - Police request regarding medical examination of the complainant Ex.PC - Site plan of the house of complainant Ex.PW3/A - Seizure memo of one undershirt and one shorts stained with blood Ex.PW5/A - Carbon copy of the medico-legal report of complainant Ex.PW5/B - Pictorial diagram of the injuries suffered by the complainant Ex.PW6/A - Report of radiologist Ex.P1 - Skiagrams Ex.PE - Arrest memo of the appellant Ex.PE/1 - Endorsement recorded on the information memo Ex.PE/2 - Copy of First Information Report Ex.PD - Police application regarding fitness of complainant to make statement Ex.PD/1 - Endorsement recorded by the police on the abovementioned application Ex.PF - Entry in the DDR regarding addition of Section 326 IPC

To provide support and corroboration to the above-mentioned documentary evidence, as many as eight witnesses were examined by the prosecution. They were:-PW-1 - Dalip Singh, Draftsman PW-2 - Vishal Thapar, the complainant PW-3 - Rakesh Kumar PW-4 - HC Sajjan Singh PW-5 - Dr. Gurpal Singh, Emergency Medical Officer, Civil Hospital, Jalandhar PW-6 - Dr. Jasmit Walia, Radiologist, Civil Hospital, Jalandhar PW-7 - ASI Balwinder Singh PW-8 - HC Ashwani Kumar

Once the prosecution evidence was over, the learned trial Court completed all the essential formalities, enshrined under Section 313 CrPC. Thereafter, opportunity to lead defence evidence was afforded to the appellants. In his defence evidence, the appellant had not examined any witness.

When the evidence of both the parties was complete, the learned trial Court gave opportunity to the learned public prosecutor and the learned counsel for the appellant, to address arguments. Thereafter, a judgment of conviction against the appellant was pronounced and, accordingly, sentence was awarded to the appellant, detailed hereinbefore.

Heard.

It has been contended on behalf of appellant that the impugned judgment of conviction and order of sentence passed by the learned trial Court are perverse and unsustainable. According to learned counsel for the appellant, merely on the basis of assumptions and presumption, the unreliable and self-contradictory evidence adduced by the prosecution had been believed by the learned trial Court. According to learned counsel for the appellant, the learned trial Court failed to apply its judicial mind, and that, merely, on the basis of conjectures and surmises findings of conviction of appellant under Sections 450/326/324 IPC were recorded.

It has been further contended by learned counsel for the appellant that the learned trial Court ignored this cardinal principle of criminal jurisprudence that prosecution had to prove its case beyond the shadow of all reasonable doubts. According to learned counsel for the appellant, the evidence adduced by the prosecution was grossly inadequate to draw an inference that all the essential ingredients, meant for the commission of offence, for which the appellant was convicted, had been established. In view of above, the learned counsel for the appellant has contended that the case against the appellant was not proved by the prosecution, but erroneously the learned trial Court returned the finding of conviction.

However, during the course of arguments, the learned counsel for the appellant has contended that in the instant appeal, the appellant is not inclined to challenge the finding of conviction recorded by the learned trial Court. The learned counsel for the appellant has categorically contended that at this stage, by virtue of present appeal, the appellant is challenging the order on the point of quantum of sentence only.

It has been further contended by learned counsel for the appellant that the incident had taken place way back in the year 2004. According to learned counsel for the appellant, the appellant is facing the agony of litigation for the last more than 22 years and have, in fact, already suffered more punishment than he deserved.

In addition to above, the learned counsel for the appellant has also argued that in the present case, the appellant ‘Denial’ has already undergone imprisonment for a period of four years and fourteen days. According to learned counsel for the appellant, in view of above-discussed factors, and the fact that minimum sentence has not been prescribed for the offence, for which the appellant has been convicted, the sentence already undergone by the appellant may be treated to be sufficient.

Per contra, the learned State Counsel has argued that the appellant has been found guilty for the commission of offence punishable under Sections 450/326/324 IPC. According to learned State Counsel, the sentence awarded to the appellant, i.e. imprisonment for a period of five years, is already on lower side, and that the appellant is not entitled to a sentence of less than five years. As per learned State Counsel, the instant appeal has no merits and deserves dismissal.

The record has been perused carefully.

Once it is categorical stand of the appellant that he is not challenging the judgment of conviction, passed by the learned trial Court, it is hereby held that there is no scope for interference or indulgence in the findings recorded by the learned trial Court, with regard to conviction of appellant, for the offence under Sections 450/326/324 IPC. Accordingly, the abovementioned finding is hereby affirmed and qua the judgment of conviction instant appeal is hereby dismissed.

As far as the order on quantum of sentence is concerned, in view of the fact that the appellant ‘Denial’ has already undergone imprisonment for a period of four years and fourteen days, against the awarded sentence of five years, it is hereby held that the appellant is entitled to a lenient view.

In the light of above observations, if factual matrix of the present case is analyzed, it transpires that following are the points which are required to be taken into consideration: -

In view of abovementioned observations, the sentence awarded to the appellant is hereby held to be harsh and, as a consequence thereof, it is hereby observed that with regard to quantum of sentence, there is need for interference and indulgence in the impugned order, i.e. the order on the point of quantum of sentence, by exercising the appellate jurisdiction vested in this Court. Thus, in my opinion, by exercising the abovementioned jurisdiction, the sentence awarded to the appellant needs to be rationalized and reduced.

As a cumulative effect of abovementioned observations, it is hereby held that in the present case, the appellant is entitled to a lenient view, and that the sentence already undergone in the present case, is adequate to meet the ends of justice.

As a sequel to the aforesaid discussions, the present appeal is hereby partly allowed. The judgment of conviction is upheld; but order on the point of quantum of sentence is modified, and the sentence awarded to the appellant is reduced to the period already undergone by him.

Pending miscellaneous application(s), if any, stand(s) disposed of, accordingly.