Daya Nand Chandela v. State

1. Vide this order, I shall dispose of two applications filed by the appellant i.e. first application under Section 389(1) of CrPC read with Section 482 CrPC for suspension/stay of order of conviction and another one 2020:DHC:150 under Section 482 CrPC for seeking permission for contesting the forthcoming elections in the main petition i.e. Crl. Appeal No. 835/2010 which is pending adjudication.

2. The appellant was convicted by the Trial Court vide the impugned judgment dated 03.06.2010 under Sections 452/34 IPC and under Section 307/34 IPC. He was sentenced to undergo three years Rigorous Imprisonment (RI) for the offence punishable under Section 452/34 IPC along with fine of Rs. 10,000/- He was also sentenced to undergo three years R.I. for the offence punishable under Section 307/34 IPC along with fine of Rs. 50,000/- Both the sentences were to run concurrently. The appeal was admitted on 21.07.2010 and the sentence was suspended during the pendency of the appeal.

3. The appellant had earlier also filed an application for suspension/ stay of conviction vide Crl. M.A NO. 19131/2014 which was, however, dismissed by this Court vide order dated 15.1.2015. The appellant is seeking suspension of the conviction on the ground that the appellant enjoys a high reputation in the political sphere. He was elected Councilor in the year 1997 and thereafter in 2002. He was, thereafter, elected as a Member of the Legislative Assembly (M.LA.) in the year 2003 and was further elected as M.L.A in the year 2008.

4. Ld. Sr. counsel has submitted that because of the order of conviction, the appellant has suffered disqualification and he cannot contest the upcoming elections in Delhi in view of bar imposed by Section 8 (3) of the Representation of the People Act, 1951.

5. Ld. Sr. Counsel for the appellant further submitted that the forthcoming election of Delhi Assembly is due in February 2020. No case is registered against the appellant after the alleged incident of 11.12.2003. Appellant has deep roots in the society and he belongs to a respectable family. He has been falsely implicated in the present case on account of political rivalry by the followers of the defeated candidate. The appellant is seeking suspension/stay of conviction as he is unable to contest election since 2013 due to the order of conviction and failure to stay conviction will lead to injustice and irreparable consequences. It is further submitted that the impugned judgment and order is not sustainable in the eyes of law as the same are based on surmises and conjectures.

6. Ld. Sr. Counsel has further prayed for suspension of sentence on the ground that there are inherent inconsistencies and glaring contradictions in the prosecution evidence for which the benefit of doubt ought to have been given to the appellant. He has further submitted that entire prosecution case is based on the testimony of PW-1 to PW-4, who belong to one family and are inimical towards the appellant and other accused persons. There are material and serious contradictions in medical & ocular evidence completely belying the ocular version and demolishing the prosecution case.

7. Ld. Sr. Counsel has further submitted that Ld. Judge has failed to appreciate the fact that ingredients of the offences charged i.e. of 452 & 307 IPC have not been proved on record. Ld. Trial Court has also failed to appreciate that appellant Daya Nand Chandela was not present at the scene of incident and was at MCD Zonal Office, Rajouri Garden at the time of incident. Police has recorded the statements of number of witnesses supporting this fact including that of SHO and Senior Officers of MCD and has also examined and seized record of Mobile No. 9818822281 which was used by the appellant. According to Ld. Counsel, statements of the witnesses and mobile record has proved the fact that appellant was not present at the scene of incident and was at MCD Zonal Office, Rajouri Garden at the time of incident. Ld. Sr. Counsel has further argued that it has come in the evidence of PW-1 Ravinder that he fought election against accused/ appellant. The appellant had won the election of MLA and after that they were not having good relations with the accused persons.

8. Ld. Sr. Counsel has next argued that no weapon of offence has been recovered at the instance of appellant or any other accused. Ld. Trial Court has failed to appreciate the fact that that prosecution was not able to bring home the guilt of the appellant and an important circumstance i.e. site plan of the place of occurrence has not been proved on record. Ld. Trial Court has also not considered the defence evidence which was probable and reasonable. It has also not considered the cross-examination of the witnesses and has only relied upon the examination-inchief and has failed to appreciate the fact that appellant had informed the SHO regarding the incident from Rajouri Garden. Ld. Trial Court has even failed to consider the fact that prosecution witnesses have themselves proved on record the plea of alibi of the appellant that he was in Rajouri Garden and was, thus, not present at the spot at village Khyala at the time of incident.

9. Ld. Sr. Counsel has further argued that Ld. Trial Court has not properly appreciated the evidence of DW-6, Shri R.K. Singh, Nodal Officer of Airtel regarding the call details which shows the location of mobile of appellant at Rajouri Garden. Ld. Trial Court has also failed to appreciate the fact that in his testimony PW[1] has deposed that he was given a sword blow by appellant but no sharp injury has been found on his person. Ld. Trial Court has further failed to appreciate that there were major contradictions in the testimony of the witnesses as well as in medical and ocular evidence as PW-4, has stated in his evidence that appellant had assaulted Sudesh Chandela with sword and he had sustained 27 injuries whereas MLC of Sudesh Chandela shows that he had received only one cut injury on his hand. It is, thus, submitted that Ld. Trial Court has committed grave error by convicting the accused/ appellant and further imposing sentence on appellant. It is argued that prima facie it is proved on record that accused/ appellant has been falsely implicated in this case. It is, therefore, prayed that conviction of the appellant be suspended and he allowed to contest the forthcoming elections.

10. Ld. APP for the State has opposed the applications on the ground that Ld. Trial Court has rightly convicted the appellant and appreciated the evidence in detail. There are no grounds at this stage to come to the conclusion that appellant is innocent and appeal is going to result in acquittal only. Evidence appearing on record has clearly proved on record the guilt of the appellant and minor contradictions and inconsistencies need not be taken into consideration for the reason that these generally occur due to lapse of memory because of time gap between the date of incident and date of recording of statement of witnesses. Moreover, these contradictions which are minor in nature do not go to the root of the matter and therefore, no grounds for suspension of the conviction are made out and the applications be dismissed in the interest of justice.

11. I have considered the rival submissions. Perusal of record reveals that the appellant had moved a similar application bearing no. CRL. M.A. No. 19131/2014 for suspension of conviction so that he may contest the election in the year 2015 but the same was dismissed by the Co-ordinate Bench of this Court vide a detailed judgment dated 15.01.2015 and conviction of the appellant was not suspended and, thus, he was not allowed to contest the election. However, the Ld. Sr. counsel for the appellant has not referred to or made any submission on the earlier judgment dt. 15.01.2015 during the course of arguments and has, thus, not given any reasons as to why the earlier judgment passed by this Court should be overlooked or modified or some new facts have emerged which warrant modification of the said order. This Court has, however, itself gone through the said judgment dated. 15.01.2015 which is a very detailed and reasoned one and it will also be discussed in the later part of this judgment.

12. Ld. Counsel for the appellant has mainly relied upon the judgment titled “Navjot Singh Sidhu v. State of Punjab and Anr., (2007) 2 SCC 574”. Perusal of the said judgment reveals that Hon‟ble Supreme Court in the said case has categorically observed that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the special facts of a case. In Navjot Singh Sidhu’s case(supra), the appellant had resigned from the membership of Lok Sabha upon his conviction. Even though by preferring an appeal, he would not have incurred any disqualification by virtue of Section 8(4) of the Representation of People Act, 1951. (though this provision was later on struck down by Hon‟ble Supreme Court in “Lily Thomas v. Union of India, (2013) 7 SCC 653”). However, the appellant had resigned to set high standards in public life. Since he intended to contest the elections for membership of the Lok Sabha, which was due to take place shortly, on account of his resignation, he had sought suspension of his conviction. The Hon‟ble Supreme Court had suspended his conviction and held as under:- The incident took place on 27.12.1988. It has no co-relation with the public life of the appellant which he entered much later in 2004 when he was elected as a Member of the Parliament. It is not a case where he took advantage of his position as M.P. in commission of the crime. As already stated, it was not necessary for the appellant to have resigned from the membership of the Parliament as he could in law continue as M.P. by merely filing an appeal within a period of 3 months and had he adopted such a course he could have easily avoided incurring any disqualification at least till the decision of the appeal. However, he has chosen to adopt a moral path and has set high standards in public life by resigning from his seat and in seeking to get a fresh mandate from the people. In the event prayer made by the appellant is not granted he would suffer irreparable injury as he would not be able to contest for the seat which he held and has fallen vacant only on account of his voluntary resignation which he did on purely moral grounds. Having regard to the entire facts and circumstances mentioned above we are of the opinion that it is a fit case where the order of conviction passed by the High Court deserves to be suspended.

13. Let me now advert to present case to find out whether grounds for suspension of conviction are made out by the appellant in view of the law laid down by the Hon‟ble Supreme Court in Navjot Singh Sidhu’s case(supra). The appellant has been convicted for the offence u/s. 452/307/34 IPC. As discussed earlier, the appellant had earlier also moved a similar application for suspension of conviction so as to allow him to contest the election. However, the same was dismissed by the Coordinate Bench of this Court vide a detailed order dated 15.01.2015. In the opinion of this Court, there is no change in the circumstances thereafter except that now the appellant intends to contest the election for the post of MLA to be held in February, 2020 whereas earlier it was for the election in the year 2015. All the contentions raised by the Ld. Sr. Counsel before this Court were raised and have been discussed in detail by the Coordinate Bench of this Court. There are no reasons to differ from those findings and moreover no arguments have been advanced by Ld. Sr. Counsel as to why these findings are not correct. This Court does not propose to consider and examine the evidence in detail again as it may prejudice either of the parties as held by the Hon‟ble Supreme Court in a case titled „Sanjay Dutt v. State of Maharashtra, (2009) 5 SCC 787 wherein Hon‟ble Court had declined to suspend the conviction of applicant so that the bar under Section 8(3) of the Representation of People Act, 1951 may not operate against him and he can contest the election. In the said case, the Hon‟ble Supreme Court has also discussed Navjot Singh Sidhu’s case (supra) and has distinguished the same on the following grounds; “We have carefully considered the contentions advanced by the petitioner. The petitioner has been convicted for serious offences. Of course, his conviction and sentence have been challenged before this Court in an appeal. Though our attention was drawn to the various findings recorded by the Special Judge and also the nature of evidence adduced by the prosecution, we do not propose to consider these facts at this stage as it may seriously prejudice either of the parties when the appeal filed by the petitioner is considered by this Court. The petitioner is a well-known cine artist and because of his contribution to art and cinema he has got large number of fans throughout the country and abroad. His father was also a wellknown film actor and he was deeply involved in politics. At one point of time, petitioner's father was Minister in the Union Cabinet. The petitioner is not a habitual criminal nor it has been brought to our notice that he had involved in any other criminal case. Despite all these favourable circumstances, we do not think that this is a fit case where conviction and sentence could be suspended so that the bar under Section 8(3) of the Representation of People Act, 1951 will not operate against the petitioner. Law prohibits any person who has been convicted of any offence and sentenced to imprisonment for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release. In the face of such a provision, the power of the Court under Section 389 Cr.P.C. shall be exercised only under exceptional circumstances. The learned counsel appearing for the petitioner has placed reliance on the decision of this Court in Navjot Singh Sidhu's case (supra). But in that case, the petitioner was a sitting MP and he could have continued as an MP even after his conviction and sentence in view of Section 8(4) of the Representation of People Act, 1951. The petitioner in Navjot Singh Sidhu's case (supra) resigned and expressed his desire to contest the election. In fact, that was a case where the trial court acquitted the petitioner and the High Court, in reversal, found the petitioner guilty. It was in those circumstances this Court granted stay of the order of conviction and sentence in that case. In the present case, no such circumstances are in favour of the petitioner. In view of the serious offence for which he has been convicted by the Special Judge, we are not inclined to suspend the conviction and sentence awarded by the Special Judge in the present case. We make it clear that we do not express any opinion on the merit and, if any of the observations made in this order, even it has remote possibility to prejudice either parties, we state that the same is only made for the purpose of disposal of Cr.M.P. No. 4087 of 2009application for suspension/stay of conviction. In the result, Cr.M.P. Nos. 4087/2009, 5229/2009, 5230/2009, 5237/2009 and 5314/2009 are dismissed. (Emphasis supplied)”

14. Beside the judgment of Hon‟ble Supreme Court in Navjot Singh Sidhu’s case (supra), the petitioner has also relied upon the judgment of Bombay High Court titled “Anil Chhabildas Chaudhari v. The State of Maharashtra, MANU/MH/1435/2011”. I have gone through the said judgment and am of the opinion that the same is distinguishable on the basis of facts and circumstances stated therein and particularly in view of the observations of Hon‟ble Supreme Court in „Sanjay Dutt’s case (supra).

15. Coming to the present case, this Court is of the opinion that Ld. Trial Court has given a detailed and reasoned finding. It has discussed the evidence of the witnesses in detail. It has disbelieved the alibi of the appellant. Perusal of the judgment of Ld. Trial Court reveals that it has dealt with the aspect of contradictions appearing in the statement of witnesses. This Court is also of the opinion that prima facie the contradictions pointed out by Ld. Sr. counsel are minor in nature and do not go to the root of prosecution version. This Court does not want to go minutely into the details of the evidence as it may prejudice either of the parties. At this stage, there are prima facie no reasons to hold that the appeal of the appellant will result in acquittal only.