Criminal Appeal No.759-SB of 2003 v. State of Haryana

Judgment

1. This appeal is directed against judgment and order dated 2/3.4.2003 passed by the learned Additional Sessions Judge, Faridabad,

(hereinafter referred as “Trial Court”) whereby in case FIR No.766 dated

18.12.2001 registered at Police Station City Ballabgarh, the accused- appellant has been convicted under Section 306 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.5,000/- and in default thereof, to further undergo rigorous imprisonment for three months. Criminal Appeal No.759-SB of 2003 -2-

2. The case of the prosecution as summed up in the judgment of learned Trial Court, is that: “On 17.12.2001, one Chhotay Lal son of Badlu resident of Lal Bahadur Shastri Nagar, Sector 25, Ballabgarh informed the police that he was running a shop near bridge over Gurgaon Canal. At about 10 AM, when he was going to ease himself, he saw a lady washing her feet and hands on the side of the canal at the distance of about 100 paces from the bridge. In the process she slipped and fell in the canal. She raised alarm, which attracted several persons including him. With the assistance of some persons he took out the said lady from the Canal. While she was being taken to B.K. Hospital in a three wheeler, she died. Since no cognizable offence appeared to have been committed the post mortem on the dead body of that lady was got conducted. Proceedings under Section 174 of the Code of Criminal Procedure were also initiated. It revealed that the deceased was Rajinder Kaur wife of Harjeet Singh resident of Gajra Colony, Sector 29, Faridabad. Her husband Harjeet Singh intimated the police that the deceased Rajinder Kaur was not in a fit state of mind. On the fateful day, she had left home in order to meet some relative in Sector 55 but on the way, she had slipped and fell down in the canal. On 18.12.2001, Pritam Singh son of Dharam Singh resident of village and post office Kalakh Tehsil Ludhiana, the brother of the deceased lodged a complaint with police to the Criminal Appeal No.759-SB of 2003 -3- effect that his sister Rajinder Kaur had married Harjeet Singh about 15 years back. She had informed him that Harjeet Singh was having illicit relations with the tenant Chanda wife of Prem Chand. On this he along with his other sister Gurdeep Kaur came to Faridabad on 25.8.2001 and came back after persuading Harjeet Singh to be faithful to his spouse. However, again Rajinder Kaur informed him that Harjeet Singh had not reformed himself and that he had started beating her. On

16.12.2001, Rajinder Kaur rang up her sister Gurdeep Kaur at Ludhiana and informed that Harjeet Singh and the tenant Chanda had been harassing and beating her. On the next day, i.e. 17.12.2001, her dead body was recovered from the canal. Pritam Singh stated that Rajinder Kaur was compelled to commit suicide due to illicit relations between her husband Harjeet Singh and his tenant Chanda. On the basis of the complaint, FIR was registered under Section 306 read with Section 34 of the Indian Penal Code. The accused Harjeet Singh and Chanda were arrested.”

3. The learned Trial Court charge-sheeted the accused-appellant for the offence punishable under Section 306 of the Indian Penal Code to which he pleaded not guilty and claimed trial.

4. The prosecution, in order to bring home the guilt of the accused-appellant, examined Dr. A.K. Gautam, who conducted autopsy on the dead body of Rajinder Kaur, as PW-1; Pritam Singh, the brother of complainant, as PW-2; Gurdeep Kaur, the sister of deceased, as PW3; Vijay Pal, ASI, who registered FIR on the basis of the complaint, as PW-4, Anoj Criminal Appeal No.759-SB of 2003 -4- Kumar, Draftsman in the office of Superintendent of Police, Faridabad as PW-5 and Jai Parkash SI, the Investigating Officer, as PW-6. Sukhdev Singh, Devender Singh and Amar Singh Inspector were given up by the prosecution being unnecessary whereas Chhotay Lal was given up as having been won over by the accused-appellant.

5. When examined under Section 313 Code of Criminal Procedure, the accused-appellant denied the allegations appearing against him in the prosecution evidence and pleaded innocence. In his defence, the accused-appellant examined Ballu as DW-1.

6. Upon appreciation of evidence adduced on record, the learned Trial Court convicted and sentenced the accused-appellant in the manner indicated above in the outset. Hence this appeal.

7. Learned counsel for the appellant does not challenge the judgment and order of the conviction/sentence on merits. However, he has prayed for reduction of sentence so awarded to the accused-appellant by taking leniency.

8. Learned counsel appearing for the State has furnished custody certificate, which is taken on record, and submitted that no leniency should be shown to the appellant since the offence has been proved.

9. The Hon’ble Supreme Court in 2006(4) R.C.R. (Criminal) 645 titled as “R. Soundarajan V. Seed Inspector, Coimbatore and another” observed as under:- “26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement Criminal Appeal No.759-SB of 2003 -5- made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during the pendency of these appeals and they are now not required to surrender. The fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment”

10. In another case titled as “Umrao Singh V. State of Haryana”, 1981 AIR (SC) 1723, the Hon’ble Supreme Court observed as under:- “After hearing counsel for the parties, we are satisfied that this is a case falling under the proviso of Section 16 (1)(a)(i) and therefore, for adequate and special reasons, the sentence lower than the minimum prescribed could be awarded. The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents.

2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith. Criminal Appeal No.759-SB of 2003 -6-

3. The appeal is disposed of accordingly”.

11. As per custody certificate produced on record, appellant has already undergone for one year, one month and eleven days only. From the record, it is made out that the FIR in the instant case is of the year 2001 and the appellant has faced the agony of protracted trial for more than 8- 1/2 years. He has not mis-used the concession of bail and no previous antecedents have been brought to surface so as to condemn him as habitual offender.

12. Keeping in view the fact that the accused-appellant has faced the agony of trial for more than 8-1/2 years and, as stated, is not habitual offender, the sentence of rigorous imprisonment is reduced to the one already undergone by him, but his conviction stands maintained. However, the sentence of fine is enhanced to Rs.15,000/- besides the fine already imposed by the learned Trial Court. He shall deposit this amount before the Chief Judicial Magistrate, Faridabad within a period of two months from the date of receipt of a copy of this order.

13. In case, the appellant fails to comply with the direction of depositing the amount of fine with the concerned Court within the period stipulated above, this appeal shall be deemed to be dismissed.

14. With the above modification in the sentence, the present appeal stands disposed of. August 09, 2010 SRM ( JITENDRA CHAUHAN ) JUDGE Note: Whether to be referred to reporter ? Yes/No