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v.- HIGH COURT OF DELHI DINESH . .....Appellant
Through: Mr Rajender Yadav, Ady j ' ^ • ' \ . ~
>
Through: Mr Rajender Yadav, Ady j ' ^ • ' \ . ~
>
VERSUS
, STATE .....Respondent
Through; Ms Neelam Sharma, APP with SI :
Jasmer'Siiigh "CRL.A. 522/2012 ; MANOJ KUMAR. ' Through:
Through; Ms Neelam Sharma, APP with SI :
Jasmer'Siiigh "CRL.A. 522/2012 ; MANOJ KUMAR. ' Through:
VERSUS
Appellant Mr Rajender Yadav, Adv STATE _ ' Respondent
' . Through: Ms Neelam Sharma, APP with SI Jasmer Singh .
' . Through: Ms Neelam Sharma, APP with SI Jasmer Singh .
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
11.01.2018 , . These appeals are directed against the impugned
11.01.2018 , . These appeals are directed against the impugned
ORDER
' and order on sentence dated 30.03.201i2 wherein both the appellants stood
. convicted, under Section 324 r/w S. 34 IPG., Each of them had been sentenced Rl'for a period of two years with a fine of Rs 5000/- and in default of payment of fine to undergo SI for a period of 6 months, Benefit, of Section 428Gr.P.G: had been granted to the appellant.
Nominal roll of the appellant Dinesh reflects that as on 10.01.2018 the said convict had completed his. sentence and has since been
. released in this case. However, he having been under trial in four
2018:DHC:9332 other cases, his detentioninjail continued.
Today this Court has been informed that Dinesh has since expired, The death certificate of appellant Dinesh is placed on record by the learned APP. Appellant Dinesh had expired on 02.07.2017.
His legal heirs have not been brought on, record. The appeal qua
Dinesh stands abated.
The arguments have been heard on the role of co-accused
Manoj. Learned counsel for the appellant points out that the ingredients of Section- 34 of the IPC cannot be attributed to the appellant Manoj as there was no common intention which is elucidated in the evidence. It is pointed out that the only role attributed to the appellant Manoj was that he had manhandled the victim; this was separate from the act of accused (Dinesh) who had used the weapon. Moreover this manhandling having been allegedly carried out by the appellant Manoj prior to the act of the co-accused, common intention cannot be attributed^ to the co-accused. To substantiate this submission, learned'counsel for the appellant has drawn the attention of this Court to the version of PW2, PW3 and.
PW5. PW2 was the injured. He had on bath stated that after-he had come back from the market upon purchasing a cake for the birthday ofhis nephew,'the accused Manoj manhandled him stating that he had
I . . stolen his scooter since the colour of the scooter of Manoj was identical to the. colour of the scooter used by PW2. This had led-to
.the manhandling. PW2 had admittedly driven the scooter ofManoj to buy the cake; he had thought that it was the scooter ofhis brother. As rightly pointed out by the learned counsel for the appellant that this is
; •
I the only role given to the accused Manoj., Even as,per PW2 accused
Manoj manhandled .PW2 as PW2 had mistakenly taken the scooter of
Manoj to purchase the cake. The injuries were indicted,to P,W2 by:
Dinesh subsequently.
The second alleged eye witness is PW3. On a court question put to PW3, ,PW3 admitted that he had hot seen Manoj giving any beating to PW2 as when he came out of the house, the accused persons were running away. The evidence of PW3 does little to support the version ofthe prosecution. •
PW5 is the second injured,person. The role attributed to the appellant Manoj is that he started calling PW2 chor chor and started given beating to PW2 along with co-accused Dinesh. PW5 also, admitted that PW2 had by mistake taken the scooter of the appellant to purchase the cake. ^
No otherrole has been attributed to the appellant Manoj.
, The injured witness PW2 is also present in court. It is stated that the parties are neighbours and they have settled their disputes.
Be that as it may, this courtneed not really delye in this aspect of the matter as noting the evidence which has come on record and also the t' medical report which evidences simple injuries on the two injured
(PW2 and PWS),- this court is of the view that the conyiction of the appellant Manoj under Section 324 of the IPG is not'called for; No conimon intention could also have been attributed to the appellant
Manoj. The act of the appellant Manoj was a distinct individual act
' and prior in time to the act of the co accused. Moreover, it was for a genuine reason that the appellant Manoj had manhandled PW2 and it i
• w
\/- : was for the reasdri that PW2.had adniittedly taken the scooted of the appellant t6 purchase the cake. Section 324 IPG pre supposes the use pfthe weapori. No weapon was admittedly used by the,appellant.' -
;This c.Quit is of the view that the coiiyiction needs to be .altered and-the cpnviction of the appellant is altered from Section 324IPG.to
. convicted, under Section 324 r/w S. 34 IPG., Each of them had been sentenced Rl'for a period of two years with a fine of Rs 5000/- and in default of payment of fine to undergo SI for a period of 6 months, Benefit, of Section 428Gr.P.G: had been granted to the appellant.
Nominal roll of the appellant Dinesh reflects that as on 10.01.2018 the said convict had completed his. sentence and has since been
. released in this case. However, he having been under trial in four
2018:DHC:9332 other cases, his detentioninjail continued.
Today this Court has been informed that Dinesh has since expired, The death certificate of appellant Dinesh is placed on record by the learned APP. Appellant Dinesh had expired on 02.07.2017.
His legal heirs have not been brought on, record. The appeal qua
Dinesh stands abated.
The arguments have been heard on the role of co-accused
Manoj. Learned counsel for the appellant points out that the ingredients of Section- 34 of the IPC cannot be attributed to the appellant Manoj as there was no common intention which is elucidated in the evidence. It is pointed out that the only role attributed to the appellant Manoj was that he had manhandled the victim; this was separate from the act of accused (Dinesh) who had used the weapon. Moreover this manhandling having been allegedly carried out by the appellant Manoj prior to the act of the co-accused, common intention cannot be attributed^ to the co-accused. To substantiate this submission, learned'counsel for the appellant has drawn the attention of this Court to the version of PW2, PW3 and.
PW5. PW2 was the injured. He had on bath stated that after-he had come back from the market upon purchasing a cake for the birthday ofhis nephew,'the accused Manoj manhandled him stating that he had
I . . stolen his scooter since the colour of the scooter of Manoj was identical to the. colour of the scooter used by PW2. This had led-to
.the manhandling. PW2 had admittedly driven the scooter ofManoj to buy the cake; he had thought that it was the scooter ofhis brother. As rightly pointed out by the learned counsel for the appellant that this is
; •
I the only role given to the accused Manoj., Even as,per PW2 accused
Manoj manhandled .PW2 as PW2 had mistakenly taken the scooter of
Manoj to purchase the cake. The injuries were indicted,to P,W2 by:
Dinesh subsequently.
The second alleged eye witness is PW3. On a court question put to PW3, ,PW3 admitted that he had hot seen Manoj giving any beating to PW2 as when he came out of the house, the accused persons were running away. The evidence of PW3 does little to support the version ofthe prosecution. •
PW5 is the second injured,person. The role attributed to the appellant Manoj is that he started calling PW2 chor chor and started given beating to PW2 along with co-accused Dinesh. PW5 also, admitted that PW2 had by mistake taken the scooter of the appellant to purchase the cake. ^
No otherrole has been attributed to the appellant Manoj.
, The injured witness PW2 is also present in court. It is stated that the parties are neighbours and they have settled their disputes.
Be that as it may, this courtneed not really delye in this aspect of the matter as noting the evidence which has come on record and also the t' medical report which evidences simple injuries on the two injured
(PW2 and PWS),- this court is of the view that the conyiction of the appellant Manoj under Section 324 of the IPG is not'called for; No conimon intention could also have been attributed to the appellant
Manoj. The act of the appellant Manoj was a distinct individual act
' and prior in time to the act of the co accused. Moreover, it was for a genuine reason that the appellant Manoj had manhandled PW2 and it i
• w
\/- : was for the reasdri that PW2.had adniittedly taken the scooted of the appellant t6 purchase the cake. Section 324 IPG pre supposes the use pfthe weapori. No weapon was admittedly used by the,appellant.' -
;This c.Quit is of the view that the coiiyiction needs to be .altered and-the cpnviction of the appellant is altered from Section 324IPG.to
323 IPG. Section 324 IPG casts'a statutory obligatidn upon the court to impose a sentence either of,iniprisbnment whichmay extend-up to one year, or with a fm6 which may extend to Rs. 10,000/- or both.. suffered incarceration of 8 days; it was at that point of time that,his , sentence was suspeiided, he is a marriedman, he has children and a \ family to support. Parties are now living peacefiilly and in fact the- complainant who is living in the, s^me viciriity also has no grievance.^ ' left with' the; appellant. Submission is that this- is a fit case where •alternate sentence pf fine alone should be impbsed Pn the appellant.^ . - This Golirt appreciates,this suWissipn ofthe appellant.' This Gourt . thus while maintaining the cofiviction of the appellarit;Manoj under -Section 323 IPG sentences hiin,to pay a fine ofRs 1000/- which fine, shall be deposited within! a period of 3 days .fi-orn today. Bail bond cancelledj. surety discharged. .- ^ , Appeals disposed of intheabPve terms. /- ; iNDERMEET KAUR, J M]^13ARY 11,2018 su' • ~ ^ , 'I. • ' , V. ' •