Raju vs State
2010 Latest Caselaw 4822 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

             +               CRL.A. No.1016/2010

                                             Decided on 19.10.2010
IN THE MATTER OF :

RAJU                                         ..... Appellant
                        Through: Ms. Nandita Rao, Adv. with
                        appellant in person.

                  versus

STATE                                          ..... Respondent
                        Through: Mr. Naveen Sharma, APP for State.

     CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                Yes

     2. To be referred to the Reporter or not?         Yes

     3. Whether the judgment should be                 Yes
        reported in the Digest?


HIMA KOHLI, J. (Oral)

1. Pursuant to the production warrants, the appellant is

present in the Court.

2. The matter was passed over on the first call as counsel for

the appellant, who is engaged to appear for the appellant by the Delhi

High Court Legal Services Committee, was requested to interact with

the appellant and obtain instructions from him. On the second call,

learned counsel states that she has obtained instructions from the

appellant to the effect that while he does not wish to challenge the

impugned judgment of conviction dated 31.3.2010, he requests that

having already undergone a period of sentence for 2 years 3 months,

he be released by reducing the sentence to the period undergone by

him.

3. The present appeal arises out of the judgment dated

31.3.2010, whereunder the appellant and two other co-accused were

convicted in a case arising out of FIR No.220/2008 under Sections

411/458/394/397/34 IPC read with Section 25 of the Arms Act

registered with PS Ashok Vihar, Delhi.

4. The incident, subject matter of the aforesaid judgment,

occurred in the intervening night of 27/28.6.2008 when all the three

accused including the appellant were found to have trespassed into the

house of the complainant, Nathu Ram who woke up and tried to

apprehend them. While one of the co-accused, Vikas @ Kishore took

out the purse from the pocket of the complainant and stabbed him,

the other two accused ran away. The second co-accused Ravinder @

Sudhir, who was carrying a knife and the appellant, who was carrying

a rod, were apprehended by the brother and son of the complainant.

5. The disclosure statement of the accused persons was

recorded and after the investigation was completed, a challan was filed

before the court. Charges were framed against all the three accused

who pleaded that they were not guilty and claimed trial. In the trial, 7

witnesses including the complainant, were examined, whereafter the

trial court arrived at the conclusion that the accused were

apprehended from the spot itself, and they could not explain their

presence there and further, the witnesses who were from the family of

the complainant were reliable and there was no reason to discard their

testimony.

6. As a result, the appellant was held to be guilty of the

offence under Section 394 read with Section 34 IPC and convicted.

As he was found to be in possession of an iron rod, he was acquitted

under the provisions of Section 25 of the Arms Act. As per the order

on sentence dated 13.4.2010, the appellant was found to be a first

time offender and he was in judicial custody since 28.6.2008. As a

result, a lenient view was taken against the appellant and he was

sentenced to undergo rigorous imprisonment for a period of 3 years

with fine of `.5,000/- for the offence under Section 394 read with

Section 34 IPC. In default of payment of fine, he was directed to

undergo simple imprisonment for a period of one month. Benefit of

Section 428 Cr.P.C. was given to the appellant for the period already

undergone by him during the trial.

7. Counsel for the appellant states that the appellant is a daily

wager working as a Safai Karamchari and his family comprises of

himself, his wife and four children aged 13 years, 8 years, 6 years and

3 years, all of who are dependent on him for succor. His wife is stated

to be suffering from breathing problem and is bed ridden. There is no

financial support available to the appellant and his family members as

his parents had expired long back and after his conviction, none of his

brothers and sisters have come forward to support his family. The

wife and children of the appellant are stated to be surviving on the

basis of support offered by the neighbours in the area. As per the

nominal roll dated 22.7.2010, as on 14.7.2010, the appellant had

undergone imprisonment for a period of 2 years 15 days, with a

remission earned for a period of 10 days. As on date, the appellant

has undergone conviction for a period of 2 years and 3 months. As far

as the jail conduct of the appellant is concerned, nothing adverse has

been shown on the record. There is no other case pending against the

appellant, nor has he been convicted in any other case.

8. Counsel for the appellant states that the stolen property in

the present case is a purse containing `.60/- and an election identity

card. She submits that the appellant being a first time offender, it is a

fit case where he may be released by reducing the sentence to the

period undergone by him for 2 years 3 months. She further states

that the appellant is financially not even in a position to pay the fine of

`.5,000/- imposed on him as part of the sentence, and the said

amount be waived.

9. Having regard to the background of the appellant and

considering the fact that he is a first time offender and has already

undergone sentence for a period of 2 years and 3 months and also

considering the fact that the appellant is the sole breadwinner of a

family comprising of six members, four of who are minors, and that his

wife and children are completely dependent on him for livelihood, a

lenient view is taken with respect to the appellant. In view of the

aforesaid facts of the case and considering the fact that the appellant

is stated not to be involved in any other criminal case apart from the

present one, and it also appears that if released, he can be well

assimilated in the main stream of the society as a useful citizen, no

useful purpose shall be served in requiring him to undergo the

remaining portion of the sentence.

10. While upholding the order of conviction, the sentence

imposed on the appellant is modified to the extent that the appellant is

released on the basis of sentence being reduced to the period already

undergone by him. Having regard to the poor economic condition of

the appellant, the fine imposed on him stands waived. The appellant

is instead, admonished for the default period of one month imposed in

the order of sentence.

The appeal is disposed of.

A copy of this order be forwarded forthwith to the Jail

Superintendent for perusal and compliance.

HIMA KOHLI,J OCTOBER 19, 2010 sk