Sunil Kumar @ Sandeep @ Bitu vs State (N.C.T. Of Delhi)
2007 Latest Caselaw 1691 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal Nos.80 of 2005, 99 of 2005 and 977 of 2005 have been filed in this Court challenging the judgment and order of Additional Sessions Judge, Delhi, in Sessions Case No.70A & 70B of 2001, arising out of F.I.R. No.829 of 1998, Police Station Patel Nagar, whereby learned judge vide his judgment dated 27.10.2004 has held the appellants, namely, Sunil Kumar @ Sandeep @ Bitu and Girish Arora @ Sonu, guilty for the offence punishable under Sections 392/394/397/307/34 IPC. They were also held guilty under Section 27 of the Arms Act. He held the appellant, Ashok Kumar @ Shoki, guilty under Sections 392/394/307/34 IPC. Further vide his order dated 4.11.2004, he has sentenced the appellants to imprisonment for life for offence punishable under Section 394 IPC together with fine of Rs.5,000/- each and in default of payment of fine, Rigorous Imprisonment for six months each. The appellants were further sentenced to undergo Rigorous Imprisonment for ten years under Section 307 IPC along with fine of Rs.1,000/- each and in default, Rigorous Imprisonment for three months. Appellants, Sunil Kumar @ Sandeep @ Bitu and Girish Arora @ Sonu, were further sentenced to undergo Rigorous Imprisonment for seven years under Section 27 of Arms Act and fine of Rs.1,000/- each and in default, further Rigorous Imprisonment for three months. All the sentences were directed to run concurrently. Appellants were awarded benefit under Section 428 of Code of Criminal Procedure.

2. Brief facts of the case as have been noted by learned Additional Sessions Judge in his judgment under challenge are as follows:

...that on 15.11.1998 at about 3:45 PM, one Sh. Kewal Singh, Supervisor in Paras Milk Company was present Along with other employees at G-7, Ashok Vihar Apartments, Commercial Complex, Ranjit Nagar, Delhi. He had come to attend a meeting over there. At about 2:15 PM, milk van No.UHP-677, had reached after collecting cash. It was being driven by driver Purushottam and was accompanied by guard Raj Bahadur. The cash brought by the van was handed over to cashier Mahender Kumar. This cash as well as the cash in the office at G-7, Ashok Vihar Apartments, Commercial Complex was counted to be around nineteen lacs and it was kept in one gunny bag and a carton which contained about 4.75 lacs. The cash was placed by the office peon Pooran Singh in the van behind driver-seat and was to be carried to Sahibabad Office. At about 3:45 PM, a Maruti Car No.DL-8CG-8206 stopped in front of milk-van and three boys came out of it. They fired at guard Bhagwan Singh, who was boarding the van. On account of injuries sustained by him, he fell down and those three boys snatched his rifle. The other guard Raj Bahadur, who was walking towards the office from the van, fired from his double-barrel gun. The three boys retaliated by firing at Raj Bahadur and he sustained injuries and fell down. By that time, the fourth boy, who was sitting in the driver seat, came out of the Maruti car. He Along with accused Ashok (whose name and address was learnt subsequently) took out a gunny bag and carton from the van and placed it in Maruti car and fled from the spot. The car was chased by Pooran Singh and other members of staff as well as other public persons. on the way Ct. Jagdish met them and car was chased by him on his two-wheeler scooter. The car reached DTC colony and could not find its way. All the four boys got out of the car, which was still being chased by Ct. Jagdish and other persons. The four boys took out the cash from the car and started running. However, some boys were playing cricket in the colony and they also chased the boys and caught hold of one culprit and hit him with cricket bat. However, one of the culprit fired shot from his pistol and the boy sustained injuries and the culprit was able to free himself. All the four culprits were still being chased by Ct. Jagdish and Kewal Singh and other members of public. However, they had left the gunny bag over there and took out some cash from the carton. Thereafter, they jumped the wall of DTC Colony and started running towards Ranjit Nagar. Ct. Jagdish and other members of public, also jumped the wall and kept chasing them. After jumping the wall, the culprits snatched a Tata Sumo No.DL-6CA-7887 from a person at gun point and started escaping with the vehicle. At that time, Ct. Jagdish fired a burst of bullets from his stangun. However, all the four culprits escaped in Tata Sumo towards Ranjit Nagar Flats.

However, Ct. Jagdish chased the Tata Sumo on a passing motorcycle. When the Tata Sumo reached near Z-Block Masjid, it could not find way and three of the culprits came out of it and started running. However, accused Ashok was caught at the spot and two accused managed to escape from there. One culprit, whose name was later on learnt to be Bijender @ Birju, S/o Laxman was found dead in the Tata Sumo. The names of the two culprits, who managed to escape, were learnt to be Girish @ Sonu and Sunil @ Sandip.

Thereafter, police was informed and SI Ramphal along with staff reached the spot and accused Ashok ws produced before him and facts were brought to his notice. Injured Birju as well as accused Ashok were sent to RML Hospital. In the meanwhile, SHO Inspector Veer Singh also reached the spot with staff and SI Ramphal also visited the hospital where Bijender @ Birju was declared brought dead. Injured Parveen, who had sustained injuries while apprehending one of the culprit in DTC Colony, was also admitted in the hospital. Thereafter, SI Ramphal returned to the spot and recorded the statement of Sh. Kewal Singh and got the instant case registered.

3. Learned Counsel for the appellants, at the very outset, have stated that they do not wish to challenge the order of conviction. They, however, confined their arguments to the question of sentence. It is contended by counsel that the trial court has gone wrong in imposing life imprisonment on the appellants for the offence under Section 394 IPC. Learned Counsel contends that to award maximum sentence, the case ought to be of such a nature that is rarest of the rare in its own class. Maximum sentence, according to counsel, ought not to be handed out as a matter of course.

4. Learned Counsel for the State contends that the quantum of sentence to be awarded is primarily the function of the court in which, the State has little or no role to play. It is a discretion which the court would exercise keeping in view the well-established norms of handing down an appropriate quantum in a given case.

5. We have heard learned Counsel for the parties and have gone through the judgment of the trial court. There is no gain saying that the Prosecution has been able to establish its case beyond a shadow of doubt. However, on the question of sentence, what has been noticed is that all the accused persons are of young age. They are not previous convicts. Two of them have remained incarcerated for nearly seven years each and third one has been in jail for over five years. All of them have family responsibilities. The jurisprudence on the question of appropriate sentence has been developed over a period of time by various pronouncements of the Supreme Court and broadly stating the main purpose of sentence is to make the accused realise that he has committed an act which not only harms himself but the society as well. Punishment is designed to protect society by deterring potential offenders and 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 respective roles in determining the quantum of sentence. Reformatory aspect cannot be under-mined and a balance must be struck between a too lenient and a too harsh punishment. To award the maximum punishment permissible under law must necessarily be in cases which are the grossest in that category of offence. Handing down of maximum penalties in all cases is neither appropriate nor desirable. In the present case, although an offence under Section 394 IPC has been committed, its manner of execution is far from what may be termed as rarest of the rare in the category under consideration to warrant the maximum penalty. The section itself provides sentence that may extend up to ten years as an alternative to life imprisonment and we see no reason why sentence of ten years for the offence under Section 394 IPC in the present facts and circumstances would not meet the ends of justice.

6. In this view of the matter, while maintaining the conviction on all counts and sentence awarded on all counts other than under Section 394 IPC, we modify the order on sentence dated 4.11.2004 by reducing the sentence under Section 394 IPC to ten years' Rigorous Imprisonment together with fine of Rs.5,000/- each and in default of payment of fine, further Rigorous Imprisonment for six months. With this modification, Criminal Appeal Nos.80 of 2005, 99 of 2005 and 977 of 2007 are partially allowed and disposed of accordingly.