Dhanpal v. State

1. The instant appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (―Cr.P.C.‖) has been filed by appellant for setting aside the impugned judgment dated 25.07.2009 passed by learned Additional Sessions Judge– 01/ South, Patiala House Court, Delhi (―Trial Court‖) in SC No. 139/08 in case FIR bearing no. 124/2004 registered at Police Station Mehrauli, Delhi for the offences punishable under Sections 452/308/201 of the Indian Penal Code, 1860 (―IPC‖), whereby the learned Trial Court has held the appellant guilty for the offences punishable under Sections 308/447 of IPC. The appeal further assails the order on sentence dated 28.07.2009 whereby the appellant was sentenced to undergo simple imprisonment for one year for offence punishable under Section 308 of IPC and to pay fine of Rs. 1,000/-, and in default of payment of fine to undergo a simple imprisonment for two months, and further to undergo simple imprisonment for two months for offence under Section 447 of IPC.

2. The present appeal was admitted on 26.08.2009 and the sentence of appellant was suspended on the same date.

3. Briefly, the case of the prosecution is that on 03.03.2004, on receipt of DDN0. 27/A, two police officials ASI Umrao Singh along with Ct. Rajender went to the place of incident where they came to know that the injured person had already been shifted to hospital by police control room, after which they went to AIIMS Hospital and received MLC of injured Mahavir. On 04.03.2004, the injured Mahavir came to the Police Station and gave his statement alleging, in brief, that on 03.03.2004 at about 4.15 p.m., some quarrel had taken place between the appellant and injured with respect to tying cow, when the appellant, after entering into some heated argument had hit him on his head twice with the wooden jolly due to which he had became unconscious. One public witness namely Kiran made complaint to police control room and sent the injured to the hospital. The present case was registered on the basis of statement of injured and his medical records.

4. During the course of arguments, the order of conviction was not pressed by learned counsel for appellant. However, the learned counsel states that the appellant is 85 years of age and is suffering from various ailments, and thus, a lenient view may be taken as far as order on sentence is concerned.

5. This Court has heard the arguments and perused the material on record.

6. Since the appellant has been convicted under Section 308 IPC, it will be appropriate to refer to first refer to the said provision, which is reproduced as under: ―...308. Attempt to commit culpable homicide. —Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both…..‖

7. As per the provisions of Section 308 IPC, the Court has discretion to sentence the accused to undergo imprisonment for a period which may extend to three years, or with fine, or with both, in case an offence has been committed of attempt to commit culpable homicide.

8. The appellant herein was awarded a sentence of one year of simple imprisonment along with a fine of Rs. 1,000/-. The amount of fine has already been paid. The appellant, who is present before this Court along with his son, is 85 years old and this Court has also observed his physical condition. Taking into account the age of appellant and that the incident pertains to the year 2004 and the applicant has faced trauma of criminal trial for 19 years, this Court is of the opinion that no useful purpose would be served in requiring him to undergo the remaining portion of his sentence at this belated stage.

9. This Court, considering aforesaid circumstances and the fact that appellant has been facing trial for almost 19 years, believes that the ends of justice will be met by releasing the appellant on the period of sentence already undergone, but by imposing further fine of Rs. 5,000/-, which shall be deposited with the learned Trial Court within 15 days.

10. Bail bond stands cancelled and the surety stands discharged.

11. Accordingly, the present appeal stands disposed of in above terms.

12. The order be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J FEBRUARY 1, 2023