Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Judgment delivered on: 15 October, 2015
+ CRL.APPEAL No.984/2002
KULWANT .....Appellant
Represented by: Mr. Sanjiv Kumar, Senior
Advocate with Mr. S.K. Santoshi,
Advocate.
Versus
STATE ..... Respondent
Represented by: Mr.Amit Chadha, Additional
Public Prosecutor for the State with
ASI Prem Chand, P.S. Alipur.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present appeal, the appellant seeks setting aside of the
judgment dated 26.11.2002 and order on sentence dated 30.11.2002
passed by the learned Additional Sessions Judge, Delhi in case bearing
FIR No.166/1997 registered at Police Station Alipur, Delhi, for the
offences punishable under Sections 395/412 IPC.
2. Brief facts of the case are that on 27.05.1997 after finishing the
work, Sunil Kumar, who was working as Supervisor in M/s Kaushik
Metal Works, situated at Hamirpur Road, Bakoli, Delhi, slept in the office
of the said factory and other labourers, namely Gauri Shankar Goswami
and Udai Chand Dass slept in the lawn and Kartik Kundu and his wife
Crl. Appeal No.984/2002 Page 1 of 6
were sleeping near the main gate of the said factory. Around 1.30 AM,
Kartik gave calls to Sunil Kumar, resultantly he woke up and saw that one
person was peeping through the window of the office. The said person
had put his hand inside through the window, lifted the receiver of the
telephone, broken it and threatened Sunil Kumar to open the door
otherwise he would fire at him. Out of fear, Sunil Kumar opened the
door. Two-three persons armed with country made pistols and knives
came inside and caught hold of him and demanded keys of the main gate,
however, he denied that keys were not with him. Thereafter, one of them
sat alongwith Sunil Kumar in the office and others went to the main gate
and had broken open the same with the help of iron rods etc. At the point
of revolver, three-four persons threatened the labourers named above,
took them inside and bolted them from outside. Thereafter, one TATA
407 Tempo was brought inside the factory premises and 240 lead slabs
weighing 20 kilogram each were loaded by the outlaws in the said vehicle
and thereafter they fled away. Sunil Kumar informed the police about the
incident and also gave description of the accused persons. During the
course of investigation, accused persons were arrested and the said lead
slabs were recovered. Accordingly, chargesheet was filed. Charge for
offences punishable under Section 395 IPC was framed against accused
Ramu, Iqbal, Manoj, Sanjay, Balbir Singh, Balak Ram Shiv Charan and
Kulwant (appellant herein) and charge for offence punishable under
Section 412 IPC was framed against accused Ravinder and Jai Parkash, to
which the accused persons pleaded not guilty and claimed trial. In support
of its case, the prosecution has examined eleven witnesses in all including
the eye witness, namely, Sunil Kumar (PW5).
3. Consequently, vide judgment dated 26.11.2002, the appellant
Crl. Appeal No.984/2002 Page 2 of 6
alongwith accused Shiv Charan, Ramu, Iqbal, Manoj, Sanjay, Balbir
Singh and Balak Ram were held guilty and convicted under Section 395
IPC and accused Ravinder Kumar and Jai Parkash were held guilty and
convicted under Section 412 IPC. Vide order on sentence dated
30.11.2002, appellant alongwith convicts Shiv Charan, Ramu, Iqbal @
Bunty, Sanjay @ Lehta, Balbir Singh, Balak Ram and Manoj were
sentenced to undergo rigorous imprisonment for a period of ten years each
and to pay a fine of Rs.5,000/- each, in default thereof to further undergo
rigorous imprisonment for six months each and convicts Ravinder and Jai
Parkash were sentenced to undergo rigorous imprisonment for a period of
five years each and to pay a fine of Rs.5,000/- each, in default thereof to
further undergo rigorous imprisonment for six months each.
4. The learned counsel appearing on behalf of the appellant at the
outset submits that she does not want to press the appeal on merits but
prays that the appellant be released on the sentence of imprisonment
which he had already undergone. In view of the submission of the learned
counsel for the appellant, I do not deem it necessary to deal with other
aspects of this case.
5. The facts remain that the appellant filed appeal before this Court
and was granted bail on 11.10.2006. He was arrested in this case on
23.06.1997 and has already undergone more than five years imprisonment
including the period of remission earned. He is not involved in any other
criminal case. The nominal roll dated 10.11.2006 reflects that conduct of
the appellant is satisfactory.
6. It is submitted that the appellant has faced the agony and trauma of
criminal proceedings, trial and ignominy and humiliation of the
conviction for more than eighteen years. Appellant is the sole bread
Crl. Appeal No.984/2002 Page 3 of 6
earner of the family as during pendency of the case, his father died, his
aged mother is ill and confined to bed and he has a minor daughter aged
around seven years to look after. The appellant has already suffered
protracted trial for more than eighteen years.
7. The learned counsel further submits that looking to the totality of
the facts and circumstances of this case, the ends of justice would meet if
a lenient view is taken and the sentence of imprisonment is reduced to the
period which the appellant had already undergone.
8. In the case of B.G. Goswami Vs. Delhi Administration, [1974] 1
SCR 222 , the Supreme Court held as under:-
“10………………….. Now the question of sentence is
always a difficult question, requiring as it does, proper
adjustment and balancing of various considerations which
weigh with a judicial mind in determining its appropriate
quantum in a given case. The main purpose of the sentence
broadly stated is that the accused must realise that he has
committed an act which is not only harmful to the society of
which he forms an integral part but is also harmful to his own
future, both as an individual and as a member of the society.
Punishment is designed to protect society by deterring
potential offenders as also by preventing the guilty party from
repeating the offence; it is also designed to reform the
offender and reclaim him as a law abiding citizen for the good
of the society as a whole. Reformatory, deterrent and punitive
aspects of punishment thus play their due part in judicial
thinking while determining the question. In modern civilised
societies, however, reformatory aspect is being given
somewhat greater importance. Too lenient as well as too
harsh sentence both lose their efficaciousness. One does not
deter and the other may frustrate thereby making the offender
a hardened criminal. In the present case, after weighing the
considerations already noticed by us and the fact that to send
the appellant back to jail now after seven years of the agony
and harassment of these proceedings when he is also going to
lose his job and has to earn a living for himself and for his
Crl. Appeal No.984/2002 Page 4 of 6
family members and for those dependent on him, we feel that
it would meet the ends of justice if we reduce the sentence of
imprisonment to that already undergone but increase the
sentence of fine from Rs. 200.00 to Rs. 400.00 . Period of
imprisonment in case of default will remain the same."
9. In the case of Sarup Chand Vs. State of Punjab, reported in 1987
(1) Crimes 818, appellant was convicted by the learned Trial Court under
Section 161, Indian Penal Code and under Sections 5(l)(d) read with
Section 5(2) of the Prevention of Corruption Act, 1947, conviction was
upheld by the High Court. While maintaining the conviction, the Supreme
Court had reduced the sentence to the period already undergone on the
ground that six years have passed from the date of the incident and this is
the first time the appellant had committed an offence.
10. In the case of lnder Parkash Shingal Vs. State, 38 (1989) Delhi
Law Times (SN) 5 , accused appellant was convicted under Section 161,
Indian Penal Code and Section 5(l)(d) and 5(2) of the Prevention of
Corruption Act, 1947. This Court reduced the sentence of the
imprisonment of appellant to the period already undergone on the ground
that the appellant has faced the agony of trial for about 18 years now.
11. In the instant case also, the incident had taken place in the year
1997. The appellant had already undergone incarceration for more than
five year including remission period out of total imprisonment and faced
trauma of criminal proceedings for more than eighteen years.
12. As noted above, there is no criminal background attached to him
prior to this conviction, his conduct even in the jail during his
incarceration of for the aforesaid period being satisfactory, I am of the
Crl. Appeal No.984/2002 Page 5 of 6
considered opinion that it is a fit case to release the appellant on the
period of sentence already undergone by him.
13. Taking into consideration all these facts and circumstances of the
case, while maintaining conviction under Section 395 IPC, order on
sentence is modified and the appellant is ordered to undergo the sentence
for the period already undergone by him in this case.
14. In view of the above, the present appeal is disposed of.
15. The Registry of this Court is directed to send a copy of this order
to the Jail Superintendent for information.
SURESH KAIT
(JUDGE)
OCTOBER 15, 2015
sb
Crl. Appeal No.984/2002 Page 6 of 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Judgment delivered on: 15 October, 2015
+ CRL.APPEAL No.984/2002
KULWANT .....Appellant
Represented by: Mr. Sanjiv Kumar, Senior
Advocate with Mr. S.K. Santoshi,
Advocate.
Versus
STATE ..... Respondent
Represented by: Mr.Amit Chadha, Additional
Public Prosecutor for the State with
ASI Prem Chand, P.S. Alipur.
CORAM:
HON’BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Vide the present appeal, the appellant seeks setting aside of the
judgment dated 26.11.2002 and order on sentence dated 30.11.2002
passed by the learned Additional Sessions Judge, Delhi in case bearing
FIR No.166/1997 registered at Police Station Alipur, Delhi, for the
offences punishable under Sections 395/412 IPC.
2. Brief facts of the case are that on 27.05.1997 after finishing the
work, Sunil Kumar, who was working as Supervisor in M/s Kaushik
Metal Works, situated at Hamirpur Road, Bakoli, Delhi, slept in the office
of the said factory and other labourers, namely Gauri Shankar Goswami
and Udai Chand Dass slept in the lawn and Kartik Kundu and his wife
Crl. Appeal No.984/2002 Page 1 of 6
were sleeping near the main gate of the said factory. Around 1.30 AM,
Kartik gave calls to Sunil Kumar, resultantly he woke up and saw that one
person was peeping through the window of the office. The said person
had put his hand inside through the window, lifted the receiver of the
telephone, broken it and threatened Sunil Kumar to open the door
otherwise he would fire at him. Out of fear, Sunil Kumar opened the
door. Two-three persons armed with country made pistols and knives
came inside and caught hold of him and demanded keys of the main gate,
however, he denied that keys were not with him. Thereafter, one of them
sat alongwith Sunil Kumar in the office and others went to the main gate
and had broken open the same with the help of iron rods etc. At the point
of revolver, three-four persons threatened the labourers named above,
took them inside and bolted them from outside. Thereafter, one TATA
407 Tempo was brought inside the factory premises and 240 lead slabs
weighing 20 kilogram each were loaded by the outlaws in the said vehicle
and thereafter they fled away. Sunil Kumar informed the police about the
incident and also gave description of the accused persons. During the
course of investigation, accused persons were arrested and the said lead
slabs were recovered. Accordingly, chargesheet was filed. Charge for
offences punishable under Section 395 IPC was framed against accused
Ramu, Iqbal, Manoj, Sanjay, Balbir Singh, Balak Ram Shiv Charan and
Kulwant (appellant herein) and charge for offence punishable under
Section 412 IPC was framed against accused Ravinder and Jai Parkash, to
which the accused persons pleaded not guilty and claimed trial. In support
of its case, the prosecution has examined eleven witnesses in all including
the eye witness, namely, Sunil Kumar (PW5).
3. Consequently, vide judgment dated 26.11.2002, the appellant
Crl. Appeal No.984/2002 Page 2 of 6
alongwith accused Shiv Charan, Ramu, Iqbal, Manoj, Sanjay, Balbir
Singh and Balak Ram were held guilty and convicted under Section 395
IPC and accused Ravinder Kumar and Jai Parkash were held guilty and
convicted under Section 412 IPC. Vide order on sentence dated
30.11.2002, appellant alongwith convicts Shiv Charan, Ramu, Iqbal @
Bunty, Sanjay @ Lehta, Balbir Singh, Balak Ram and Manoj were
sentenced to undergo rigorous imprisonment for a period of ten years each
and to pay a fine of Rs.5,000/- each, in default thereof to further undergo
rigorous imprisonment for six months each and convicts Ravinder and Jai
Parkash were sentenced to undergo rigorous imprisonment for a period of
five years each and to pay a fine of Rs.5,000/- each, in default thereof to
further undergo rigorous imprisonment for six months each.
4. The learned counsel appearing on behalf of the appellant at the
outset submits that she does not want to press the appeal on merits but
prays that the appellant be released on the sentence of imprisonment
which he had already undergone. In view of the submission of the learned
counsel for the appellant, I do not deem it necessary to deal with other
aspects of this case.
5. The facts remain that the appellant filed appeal before this Court
and was granted bail on 11.10.2006. He was arrested in this case on
23.06.1997 and has already undergone more than five years imprisonment
including the period of remission earned. He is not involved in any other
criminal case. The nominal roll dated 10.11.2006 reflects that conduct of
the appellant is satisfactory.
6. It is submitted that the appellant has faced the agony and trauma of
criminal proceedings, trial and ignominy and humiliation of the
conviction for more than eighteen years. Appellant is the sole bread
Crl. Appeal No.984/2002 Page 3 of 6
earner of the family as during pendency of the case, his father died, his
aged mother is ill and confined to bed and he has a minor daughter aged
around seven years to look after. The appellant has already suffered
protracted trial for more than eighteen years.
7. The learned counsel further submits that looking to the totality of
the facts and circumstances of this case, the ends of justice would meet if
a lenient view is taken and the sentence of imprisonment is reduced to the
period which the appellant had already undergone.
8. In the case of B.G. Goswami Vs. Delhi Administration, [1974] 1
SCR 222 , the Supreme Court held as under:-
“10………………….. Now the question of sentence is
always a difficult question, requiring as it does, proper
adjustment and balancing of various considerations which
weigh with a judicial mind in determining its appropriate
quantum in a given case. The main purpose of the sentence
broadly stated is that the accused must realise that he has
committed an act which is not only harmful to the society of
which he forms an integral part but is also harmful to his own
future, both as an individual and as a member of the society.
Punishment is designed to protect society by deterring
potential offenders as also by preventing the guilty party from
repeating the offence; it is also designed to reform the
offender and reclaim him as a law abiding citizen for the good
of the society as a whole. Reformatory, deterrent and punitive
aspects of punishment thus play their due part in judicial
thinking while determining the question. In modern civilised
societies, however, reformatory aspect is being given
somewhat greater importance. Too lenient as well as too
harsh sentence both lose their efficaciousness. One does not
deter and the other may frustrate thereby making the offender
a hardened criminal. In the present case, after weighing the
considerations already noticed by us and the fact that to send
the appellant back to jail now after seven years of the agony
and harassment of these proceedings when he is also going to
lose his job and has to earn a living for himself and for his
Crl. Appeal No.984/2002 Page 4 of 6
family members and for those dependent on him, we feel that
it would meet the ends of justice if we reduce the sentence of
imprisonment to that already undergone but increase the
sentence of fine from Rs. 200.00 to Rs. 400.00 . Period of
imprisonment in case of default will remain the same."
9. In the case of Sarup Chand Vs. State of Punjab, reported in 1987
(1) Crimes 818, appellant was convicted by the learned Trial Court under
Section 161, Indian Penal Code and under Sections 5(l)(d) read with
Section 5(2) of the Prevention of Corruption Act, 1947, conviction was
upheld by the High Court. While maintaining the conviction, the Supreme
Court had reduced the sentence to the period already undergone on the
ground that six years have passed from the date of the incident and this is
the first time the appellant had committed an offence.
10. In the case of lnder Parkash Shingal Vs. State, 38 (1989) Delhi
Law Times (SN) 5 , accused appellant was convicted under Section 161,
Indian Penal Code and Section 5(l)(d) and 5(2) of the Prevention of
Corruption Act, 1947. This Court reduced the sentence of the
imprisonment of appellant to the period already undergone on the ground
that the appellant has faced the agony of trial for about 18 years now.
11. In the instant case also, the incident had taken place in the year
1997. The appellant had already undergone incarceration for more than
five year including remission period out of total imprisonment and faced
trauma of criminal proceedings for more than eighteen years.
12. As noted above, there is no criminal background attached to him
prior to this conviction, his conduct even in the jail during his
incarceration of for the aforesaid period being satisfactory, I am of the
Crl. Appeal No.984/2002 Page 5 of 6
considered opinion that it is a fit case to release the appellant on the
period of sentence already undergone by him.
13. Taking into consideration all these facts and circumstances of the
case, while maintaining conviction under Section 395 IPC, order on
sentence is modified and the appellant is ordered to undergo the sentence
for the period already undergone by him in this case.
14. In view of the above, the present appeal is disposed of.
15. The Registry of this Court is directed to send a copy of this order
to the Jail Superintendent for information.
SURESH KAIT
(JUDGE)
OCTOBER 15, 2015
sb
Crl. Appeal No.984/2002 Page 6 of 6