CRL.A./720/2017 of SUBHASH ROY & ANR Vs STATE (NCT OF DELHI) & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%Judgment delivered on: 24.07.2017

+CRL.A. 720/2017

SUBHASH ROY & ANR.

..... AppellantsThrough:Mr. V.K. Ohri, Mr. S.S. Bhatia andMr. Rudra Pratap, Advocates.

Versus

STATE (NCT OF DELHI) & ANR.

..... Respondents

Through:Ms. Rajni Gupta, Additional PublicProsecutor.

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MR. JUSTICE NAJMI WAZIRI

SIDDHARTH MRIDUL, J (Oral)

Crl.M.A. No.11624/2017 (for exemption)

1.Allowed, subject to all just exceptions.

2.The application stands disposed off.CRL.A. 720/2017 & Crl.M.A. No.11623/2017CRL.A. 720/2017 & Crl.M.A. No.11623/2017

3.The present appeal assails the order on conviction dated 13[th]April,2017, and the order on sentence dated 19[th]April, 2017, passed by thelearned Additional Sessions Judge, Saket, New Delhi, in Sessions CaseNo.52/2011, convicting respondent No.2, Vijay Virdhi, under the provisionsof Sections 299/304 Part II read with Section 308 of the Indian Penal Code,1860 (for short ‘IPC’). Respondent No.2 has been sentenced to undergorigorous imprisonment for period of 4 years for the offence punishable

under the provision of Section 304 Part II IPC, and to pay fine ofRs.5,00,000/- (Five Lacs) as compensation to be given to the parents of thedeceased, namely, Shailesh Roy. In the event of default of payment ofcompensation, Respondent No.2 was sentenced to further undergo simpleimprisonment for period of one year. Further, Respondent No.2 has beensentenced to undergo rigorous imprisonment for period of 3 years for theoffence punishable under the provision of Section 308 IPC; and fine ofRs.2,00,000/- (Two Lacs) was imposed to be paid to the injured victim,namely, [REDACTED], the Appellant No.2 herein, as compensation. In theevent of default of payment of fine he was sentenced to further undergosimple imprisonment for period of one year.Both the sentences wereordered to be run concurrently.

4.The said judgement and order dated 13.04.2017 and 19.04.2017,respectively, were impugned by Respondent No.2 before Single Bench ofthis Court, in Crl. A. No.448/2017 titled as “Vijay Virdi vs. State (GNCT ofDelhi)”. Whilst upholding his conviction under the provisions of Sections299/304 Part II read with Section 308 IPC, the Single Bench of this Court byits judgment dated 29[th]May, 2017, modified the sentence imposed uponRespondent No.2 from four years rigorous imprisonment to three and halfyears rigorous imprisonment.

5.The instant appeal has been preferred by Mr. Subhash Roy, the fatherof the deceased, Shailesh Roy; and Mr. Sidharth Roy, the injured-victim.The Appellants by way of the present appeal seek to invoke the provisionunder Section 372 of the Criminal Procedure Code, 1973 (for short‘Cr.P.C.’), which provides for an appeal to be preferred by the victim when

the accused is either convicted and sentenced for period, that is consideredinadequate in the facts and circumstances of the case or has been acquitted.

6.For the sake of facility, it would be advisable to extract the relevantprovision, which reads as follows:-

“372. No appeal to lie, unless otherwise provided. No appealshall lie from any judgment or order of Criminal Courtexcept as provided for by this Code or any other law for thetime being in force.”

7.Brief facts of the case of Respondent No.2, as enumerated in theimpugned judgment dated 29[th]May, 2017, are that on 28.11.2011 at about4.45 AM, quarrel had taken place between the accused persons andAppellant No.2 and Mr. Shailesh Roy, the deceased, resulting into brawlwith fist and dandas at the tea stall of Radharaman, at Gurudwara Chowk infront of Gali No.1, Fruit Market, Ratia Marg, Govindpuri, New Delhi. In thesaid quarrel Appellant No.2 had sustained injuries on the right side of hisforehead and his right eye; and Mr. Shailesh Roy had died due to the injuriessustained by him in the incident at the hands of the accused persons. Aftercompletionofinvestigationanddepositionofrelevantwitnesses,Respondent No.2 was held guilty of the offence with which he was chargedand was sentenced to imprisonment vide said judgment and order onsentence dated 13.03.2017 and 19.04.2017, respectively.

8.Mr. Ohri, learned counsel appearing on behalf of the appellants,would invite our attention to decision of the Hon’ble Supreme Court inRoopendra Singh v. State of Tripura and Ors. reported as 2017 (2) JCC1303, to urge that even when an appeal preferred by the State, against the

acquittal of an accused or seeking enhancement of the sentence imposedupon the accused on the ground of it being inadequate, is dismissed by theAppellate Court, the right of the victim to assail the same judgment andorder is absolute.

9.Mr. Ohri, would invite our attention to paragraphs 9 and 10 of thereport in Roopendra Singh (supra), to urge that in the present case althoughan appeal preferred by Respondent No.2 has been disposed off by SingleBench of this Court vide said judgment and order dated 29.05.2017, thepresent appeal is still determinable independently and substantively, interalia, on the ground that the said order of the Ld. Single Judge, upholding hisconviction under the provisions of Sections 299/304 Part II read withSection 308 IPC, whilst modifying the sentence imposed upon him fromfour years rigorous imprisonment to three and half years rigorousimprisonment, is both erroneous and was rendered without affording anopportunity to the appellants herein of being heard in that appeal.

10.In Roopendra Singh (supra) and, in particular, in paragraphs 9 and 10relied upon by the appellants, the Hon’ble Supreme Court held as under:-

“9. These appeals, at the instance of the original informantquestion the orders dated 20.06.2012 and 28.06.2012 passedby the High Court of Judicature at Bombay, Nagpur Bench,Nagpur. By order dated 20.06.2012 Criminal Application No.399 of 2012 preferred by State of Maharashtra seeking leaveto appeal against the judgment and order dated 04.02.2012passed by the Extra Joint Ad-hoc Additional Sessions Judge,Kelapur in Sessions Trial No. 6 of 2011 acquitting the Accusedof the offences punishable Under Section 302, 201 read withSection 34 Indian Penal Code was rejected by the High Court.

The appeal Under Section 372 Code of Criminal Procedurepreferred by the Informant, who also happens to be the widowof the deceased was rejected in the light of the earlier rejectiondated 20.06.2012. It appears that State of Maharashtra did notchallenge the rejection of their application seeking leave toappeal. This Court issued notice in the aforesaid matter on12.10.2012 and the matter was thereafter tagged withSLP(Crl) No. 7014 of 2012, namely, the earlier matter arisingout of the judgment of the Gauhati High Court.

10.Section 372 Code of Criminal Procedure has conferredupon victim substantive and independent right to maintainan appeal against acquittal. The widow of the deceased in thepresent matter comes within the definition of "victim" asincorporated in Section 2(wa). Merely because leave to appealwas not granted to the State to prefer an appeal againstacquittal, the appeal preferred by the victim Informant oughtnot to have been rejected by the High Court summarily. We,therefore, set aside the order dated 28.06.2012 passed by theHigh Court rejecting Criminal Appeal preferred by theAppellant and remit the matter to the High Court for freshconsideration. It will be open to the High Court to consider thematter for grant of leave to appeal to the Appellant in the lightof paragraphs 17 and 18 of the decision of this Court in SatyaPal Singh.”

11.A bare reading of the above paragraphs would reveal that the Hon’bleSupreme Court held that even when an appeal preferred by the State againsta judgment and order acquitting the accused of offences is rejected by aHigh Court, another appeal assailing the very same acquittal, preferred bythe victim in terms of Section 372 Cr.P.C., is to be determinedindependently and substantively.

12.However, in the instant appeal, the decision in Roopendra Singh(supra) may not come to the aid of the appellants.

13.In the first instance, in the present case, an appeal was preferred byRespondent No.2, the convict, which came to be disposed off by SingleBench of this Court by way of its said judgment and order dated 29[th]May,2017.The Hon’ble Single Judge whilst upholding the conviction ofRespondent No.2 under the provisions of Sections 299/304 Part II read withSection 308 IPC, and after considering the facts and circumstances attendantthereto, modified the substantive sentence awarded to Respondent No.2 byreducing it from four years rigorous imprisonment, as imposed by the TrialCourt, to 3 ½ years rigorous imprisonment.

14.The judgment pronounced by the High Court in the exercise of itsappellate or revisional jurisdiction, after issue of notice and full hearingin the presence of both the parties, would be the final judgment to beexecuted in accordance with law by the Court below. The judgment sopronounced would certainly be arrived at after due consideration of theevidence and all the arguments and would replace the judgment of the lowercourt. (Ref: U.J.S. Chopra v. State of Bombay, reported as AIR 1955 SC633)

15.The juristic justification of the doctrine of merger may be sought inthe principle that at one point of time there cannot be multiple operativeorders governing the same subject-matter. Therefore, the judgment of aninferior Court on being examined by the superior Court ceases to haveexistence in the eye of law; and is treated as being superseded by thejudgment of the latter. In other words, the judgment of the inferior court

loses its identity by its merger with the judgment of the superior court. (Ref:Gojer Bros. (Pvt.) Ltd. v. Shri Ratan Lal Singh, reported as AIR 1974 SC1380)

16.The said judgment and order dated 29[th]May, 2017, rendered by thisCourt, has become final in view of the circumstance that it has not yet beencarried in appeal either by the State, who were party to that appeal, nor bythe appellants, who have instituted the present appeal.

17.Therefore, in view of the facts and circumstances, what the appellantsare asking for in the instant appeal is for this Court to test the correctness orregularity of the said judgment and order dated 29[th]May, 2017, rendered bythe learned Single Judge of this Court, which, axiomatically, is notpermissible in law.

18.This Court, evidently, cannot embark on either review or sit inappeal on the merits of the said judgment and order dated 29[th]May, 2017,rendered by the learned Single Judge.Only the Hon’ble Supreme Courtcould do so in petition by special leave that may be instituted by theappropriate parties.

19.Even otherwise, in our view, the reliance placed on Roopendra Singh(supra) is misplaced in the facts and circumstances of this case, inasmuchas, judgment is only an authority for what it actually decides, and not forwhat logically follows from it. (Ref: Lord Halsbury in Quinn v. Leathem,reported as 1901 AC 495)

20.Furthermore, the appellants are at liberty to assail the correctness ofthe said judgment and order dated 29[th]May, 2017, rendered by the learned

Single Judge of this Court, in the appeal instituted on behalf of RespondentNo.2, in appropriate proceedings in accordance with law. It would thusneither be legal nor proper for this Bench to review the said decisionrendered by the learned Single Judge of this Court, as if this Court weresitting in appeal over the same.

21.In view of the foregoing discussion, the present appeal is devoid ofany merit and the same alongwith the pending application is dismissedaccordingly.

SIDDHARTH MRIDUL, J.

JULY 24, 2017sb

NAJMI WAZIRI, J.