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2006 DIGILAW 2063 (PNJ)

Manoj S/o Raj Karan v. State Of Haryana

2006-05-12

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. By way of this judgment, I am disposing of Criminal Appeal No. 164-SB of 1992, filed by appellant-Manoj, against his conviction under Section 436, IPC and sentence of RI for three years and to pay a fine of Rs. 2000.00 in default of payment of fine, RI for three months, as recorded by the learned Sessions Judge, Gurgaon vide judgment dated 8-4-1992 and order dated 9-4-1992 and Criminal Appeal No. 283-SB of 1992, filed by the State for enhancement of sentences of imprisonment and fine imposed upon the appellant-Manoj. 2. The facts giving rise to the present case are that complainant-Chander Prabha and her husband Surinder Pal were running Gulmarg Restaurant in the city of Gurgaon. On November 4. 1990 at 8.00 p.m., the appellant along with some taxi drivers came to the said restaurant while they were under influence of liquor. They started abusing the complainant and damaging the articles lying there. The husband of the complainant tried to control the situation. Accused tried to give beating to the husband of the complainant and also damaged the motor cycle. The matter was reported to the police but the accused managed to run away. However, while fleeing from the spot, the accused held out a threat that he set the restaurant of the complainant on fire. 3. The same night Manoj-accused came back and set the restaurant on fire. At that time, Ramesh PW5 and Raghuraj PW6 who were servants of the complainant were sleeping there. Raghuraj PW6 went to the house of complainant-Chander Prabha and informed her that Manoj accused had set the restaurant on fire and further that Ramesh PW5 had apprehended the accused. Complainant and her husband Surinder Pal while accompanied by their son went to the place of occurrence and saw that the restaurant was on fire. Complainant asked her son to summon the Fire Brigade, which arrived a little later and the fire was put off. Complainant Chander Prabha PW4 submitted a written complaint Ex.PB to the police, on the basis of which FIR No. 738 (Ex.PB/ 1) was registered at Police Station City, Gurgaon on 5-11-1990 under Section 426, IPC. 4. After the conclusion of the investigation, challan was presented against the accused under Section 436, IPC. Complainant Chander Prabha PW4 submitted a written complaint Ex.PB to the police, on the basis of which FIR No. 738 (Ex.PB/ 1) was registered at Police Station City, Gurgaon on 5-11-1990 under Section 426, IPC. 4. After the conclusion of the investigation, challan was presented against the accused under Section 436, IPC. The said offence was exclusively triable by the Court of Session, Consequently, Chief Judicial Magistrate, Gurgaon committed the case for trial to the Court of Session, which was thereafter, assigned to Additional Sessions Judge, Gurgaon for trial. The trial Court charged the accused under Section 436, IPC, to which he pleaded not guilty and claimed trial. 5. The prosecution examined Mool Chand, Draftsman as PW1, Narender Kumar Sharma as PW2, Nihal Chand, Fireman as PW3, Complainant-Chander Prabha as PW4, Ramesh as PW5, Raghuraj as PW6 and ASI Devinder Kumar as PW7. 6. After the close of the prosecution case, the statement of the accused was recorded under Section 313, Cr.P.C. The evidence of the prosecution was put to the accused, who denied the allegations and stated that he had been falsely Implicated. He also took up the plea that he was suffering from mental disease at the time of alleged occurrence. Specific plea taken by the accused is reproduced hereinbelow: I am innocent, I was suffering from mental disease at the time of alleged occurrence. I have even not seen place of alleged occurrence. I have been falsely implicated and was arrested from the Bus stand. As per my feeble memory I was arrested in the evening time. Thereafter, 1 was shifted to Rohtak Medical for my treatment. I have not set any restaurant on fire. 7. In support of his defence plea, the accused examined Dr. D. K. Puri of Medical College, Rohtak as DW1, who produced his report Ex.D 1. No other evidence was led by the accused. 8. Learned Counsel for the appellant has pleaded that the appellant was suffering from schizophrenia and he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Reference in this regard has been made to report Ex.D1 prepared by Dr. D. K. Puri DW1, who had examined him on 27-11-1990. Reference in this regard has been made to report Ex.D1 prepared by Dr. D. K. Puri DW1, who had examined him on 27-11-1990. Consequently, it was pleaded that the case of the accused fell under general exceptions of IPC and benefit of Section 84, IPC could be extended to him. 9. I have gone through the testimony of Dr. D. K. Puri DW1 as well as report Ex.D1. There is no material on the record to show that on the relevant date i.e. 4/5-11-1990 when the occurrence had taken place, the accused was of unsound mind. According to the testimony of Dr. D. K. Puri DW1 and the report Ex.Dl, the accused was of unsound mind on 27-11-1990, Dr. D. K. Puri did not mention anywhere that on 4/5-11-1990, the accused was suffering from schizophrenia or that he was incapable of knowing the nature of the act. So much so that when Dr. D. K. Puri was cross-examined, he could not say whether the accused was suffering from schizophrenia on 4-11-1990. The case of the appellant does not fall under Section 84, IPC so as to absolve him of the liability. 10. Both Ramesh PW5 and Raghuraj PW6 were the eye-witnesses of the occurrence. They also mentioned about the earlier Incident, which had taken place at about 8.00 p.m. when the accused came to the restaurant and an altercation ensued thereafter when the accused left the place by extending a threat to set the restaurant on fire. The same night at about 3,00 a.m. when both Ramesh PW5 and Raghuraj PW6 were sleeping outside the restaurant, they heard the noise and woke up to see that it was the accused who was setting the restaurant on fire with the help of burning rickshaw tyre, which he was holding in his hand. The wooden material used for setting up the restaurant caught fire. Both Ramesh PW5 and Raghuraj PW6 were able to nab the accused at the spot. Raghuraj PW6 was then sent to inform the complainant about the incident. Within about 10 minutes the complainant along with her husband and son reached the spot. Nothing has come in the cross-examination of both Ramesh PW5 and Raghuraj PW6 to show that they were not present at the place of occurrence. Raghuraj PW6 was then sent to inform the complainant about the incident. Within about 10 minutes the complainant along with her husband and son reached the spot. Nothing has come in the cross-examination of both Ramesh PW5 and Raghuraj PW6 to show that they were not present at the place of occurrence. The fact that they had apprehended the accused at the spot and later on handed over to the police corroborations their testimonies. 11. Learned Counsel for the complainant has drawn the attention of the Court to certain discrepancies and contradictions in the statements of the witnesses. Whether the accused was apprehended tightly by the witnesses or he was sitting freely and whether the statements of the witnesses were recorded after 2.30 p.m. or at 3.00 p.m. and also whether the accused was wearing only under-garments or wearing baniyan and pant are not those type of discrepancies and contradictions, which go to the root of the case. To my mind, these were only minor in nature, which could come in the testimonies of the truthful witnesses, who are not expected to give parrot like statements before the Court. 12. Ample corroboration is available to the testimonies of Ramesh PW5 and Raghuraj PW6 and complainant-Chander Prabha PW4, from the testimony of Nihal Singh, Fireman PW3, The investigation of the case was also verified by ASI Devinder Kumar PW7, who found the accused responsible for the occurrence. 13. No motive has been suggested whatsoever by the defence for false implication of the accused. The accused was apprehended at the spot. The prosecution has been able to prove the charge against the accused under Section 436, IPC. 14. Coming to the quantum of sentence, it is to be seen that the present occurrence had taken place in November, 1990. The appellant remained in custody as an under-trial prisoner for about three months. He has been facing the agony of the prosecution for the last about sixteen years. There is no material on the file to show that after having been released on bail, the appellant has indulged in any such or similar activity. Sending the appellant behind bars at this stage would serve no useful purpose. On the other hand, if he is asked to serve the remaining sentence imposed upon him, come out as a hardened criminal after the expiry of the said sentence. Sending the appellant behind bars at this stage would serve no useful purpose. On the other hand, if he is asked to serve the remaining sentence imposed upon him, come out as a hardened criminal after the expiry of the said sentence. At the same time, it may also be noticed that complainant-Chander Prabha suffered damage to her restaurant and the said damage was quantified by her to be Rs. 57,000.00 , She had made an application for being impleaded as a party wherein she quantified her damages. The said application was, however, not allowed by this Court on 15-5-2001, on the ground that as it was a State case, she could not be impleaded as a respondent in the present appeal. The State has also filed Criminal Appeal No. 283-SB of 1992 under Section 377, Cr.P.C. for enhancement of sentences of imprisonment and fine imposed upon the accused. In para 6 of the grounds of appeal, it has been mentioned that the father of the accused is a big landlord having 20 acres of land and also owns a tractor. 15. Considering all the circumstances mentioned above, I deem it fit and proper to reduce the sentence of imprisonment imposed upon the appellant. Consequently, the sentence of imprisonment imposed upon the appellant is reduced to that already undergone by him. However, fine of Rs. 2000.00 imposed upon the appellant by the trial court is enhanced to Rs. 60,000.00 . The said amount of fine shall be deposited by the appellant with the trial Court within a period of three months from the date, of preparation of copy of this order. In case the said amount of fine of Rs. 60,000.00 is not deposited within the said period, the sentence of RI for three years awarded by the trial Court shall be restored. On deposit of the said amount, an amount of Rs. 57,000.00 be paid to Smt. Chander Rrabha-complainant as compensation. Trial Court to inform the complainant in this regard. 16. It has been brought to my notice that the fine of Rs. 2000.00 imposed by the trial Court was deposited by the appellant on 9-4-1992 itself. Under these circumstances, the appellant is now/ required to deposit a sum of Rs. 58,000.00 within the period mentioned above. 17. Both the appeals are, accordingly, disposed of.