Delhi High Court
Jeewan vs State on 8 March, 2011
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: March 08, 2011
+ CRIMINAL APPEAL NO.811/2008
JEEWAN ....APPELLANT
Through: Ms.Purnima Sethi, Amicus Curiae.
Versus
STATE .....RESPONDENT
Through: Ms. Fizani Husain, APP
+ CRIMINAL APPEAL NO.435/2009
NEM CHAND ....APPELLANT
Through: Ms.Purnima Sethi, Amicus Curiae.
Versus
THE STATE .....RESPONDENT
Through: Ms. Fizani Husain, APP
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.(ORAL)
1. These appeals are directed against the impugned judgment of
learned Additional Sessions Judge dated 4th August, 2008 in Sessions Case
No.1/2006 FIR No.526/1994 under Section 307/34 IPC P.S. Patel Nagar and
the consequent order on sentence dated 11th August, 2008 whereby the
appellants have been convicted on charge under Section 307 IPC read
Section 34 IPC and sentenced to undergo R.I. for a period of 5 years each
as also to pay fine of `2000/- each, failing which to undergo S.I. for a
period of one month respectively.
2. Briefly stated, allegations against the appellants are that on 31 st
July, 1994 while complainant Sunil Kumar was going on his cycle from
DMS Colony, Shadipur towards Patel Nagar, he was hit by a two-wheeler
scooter on which three persons, including the appellants were travelling.
Consequent upon the accident, cycle of Sunil Kumar had got damaged
and he asked the scooter riders to pay for the repair of cycle. They left
the spot saying that they did not have money and promised to come back
in a short while. Complainant Sunil Kumar, thereafter, went to a cycle
repair shop to get his cycle repaired. While he was present at cycle repair
shop, the appellants and their co-accused came there and assaulted the
complainant. He was given stab injuries on his lips as well as his chest.
Thereafter, the appellants and the co-accused ran away.
3. The appellants as well as their co-accused were charged for offence
under Section 307/34 IPC to which they pleaded not guilty and claimed to
be tried.
4. In order to bring home the guilt of the appellants, prosecution has
examined 19 witnesses, including the complainant Sunil Kumar and other
eye witnesses.
5. The appellants, when examined under Section 313 Cr.P.C., denied
the prosecution version in its totality and claimed that they have been
falsely implicated in this case. Appellant Nem Chand examined 3
witnesses in his defence to establish that he was picked up from the bus
stand and falsely implicated in this case.
6. Learned Additional Sessions Judge, after hearing the parties and on
consideration of the evidence on record, found both the appellants guilty
of the offence of attempt to commit murder punishable under Section 307
IPC read with Section 34 IPC. He convicted them and sentenced them
accordingly.
7. Learned Ms.Purnima Sethi, Amicus Curiae submits that both the
appellants have instructed her to make a statement on their behalf that
they admit their guilt and do not challenge the impugned judgment on
merits. Learned Amicus Curiae, however, has confined her argument to
the quantum of sentence.
8. Learned Amicus Curiae has submitted that from the allegations in
the FIR (Ex.3/A) and the statement of the complainant, it is apparent that
it is not a case in which the appellants had a motive to cause harm to the
complainant. She submitted that as per the case of the prosecution, the
occurrence took place as a result of accident between scooter of the
appellants and their co-accused and the cycle of the complainant and the
complainant sought compensation from them for getting his cycle
repaired. Therefore, according to learned Amicus, the sentence of 5 years
R.I. awarded by learned Additional Sessions Judge is too harsh and she
has urged for reduction of sentence to the period already undergone by
respective appellants in custody. Learned Amicus Curiae further submits
that both the appellants are young people having their own families who
are dependent upon them for their subsistence, therefore also they
deserve to be treated leniently.
9. I have considered the rival contentions. Sentencing of an accused in
a criminal matter is a serious exercise and the quantum of sentence
imposed should commensurate with the gravity of the offence committed
by the accused and the circumstances under which the offence was
committed. While dealing with the issue of sentence for the offences
under Sections 3,4 & 6 of Terrorist and Disruptive Activities (Prevention)
Act, 1987, Supreme Court, in the matter of Karamjit Singh v. State
(Delhi Admn.), (2001) 9 SCC 161, has inter alia, observed thus:
"7. ......Punishment in criminal cases is both punitive and
reformative. The purpose is that the person found guilty of
committing the offence is made to realise his fault and is
deterred from repeating such acts in future. The reformative
aspect is meant to enable the person concerned to relent and
repent for his action and make himself acceptable to the
society as a useful social being. In determining the question
of proper punishment in a criminal case, the court has to
weigh the degree of culpability of the accused, its effect on
others and the desirability of showing any leniency in the
matter of punishment in the case. An act of balancing is, what
is needed in such a case; a balance between the interest of
the individual and the concern of the society; weighing the
one against the other. Imposing a hard punishment on the
accused serves a limited purpose but at the same time, it is
to be kept in mind that relevance of deterrent punishment in
matters of serious crimes affecting society should not be
undermined. Within the parameters of the law an attempt has
to be made to afford an opportunity to the individual to
reform himself and lead the life of a normal, useful member
of society and make his contribution in that regard. Denying
such opportunity to a person who has been found to have
committed offence in the facts and circumstances placed on
record would only have a hardening attitude towards his
fellow beings and towards society at large. Such a situation,
has to be avoided, again within the permissible limits of law.
8. After giving our anxious consideration to the question of
reduction of sentence as urged on behalf of the appellant and
objected to on behalf of the respondent, we have come to the
conclusion that some consideration should be shown to the
appellant in the matter. In coming to this conclusion we have
taken into account the facts that he has spent a long period,
more than thirteen years, in jail; that he was a young man of
21 years when he committed the act giving rise to the case;
that the situation then prevailing in the State of Punjab was
surcharged with acts of terrorism and several misguided
young men were drawn into the movement; that in the
meantime the movement has subsided and it could be
reasonably taken that the State is free from the menace of
terrorism. In taking the decision to show some consideration
to the appellant in the matter of punishment we have reposed
confidence in goodness of human character which is a part of
the personality of every human being. We hope and believe
that our confidence will not be belied in the case of the
appellant. In the facts and circumstances of the case and the
changed social environment which has taken place in the
meantime, it is our considered view that the sentence of life
imprisonment should be modified to the period already
undergone (about 13 years 7 months). Before being released
from jail in the case, the appellant will notify the jail authority
the place and the address at which he intends to stay, on
receipt of which the jail authority will intimate the
Superintendent of Police of that place with a request to him to
keep the appellant under observation. If the Superintendent
of Police finds that the appellant is indulging in any illegal
activity which amounts to an offence under any law, he shall
immediately send a report to the Registrar General of this
Court. With this modification of sentence as noted above, this
appeal is dismissed."
10. Learned APP, on the other hand, has argued in support of the order
on sentence. She has submitted that perusal of the MLC (Ex.PW12/A)
would show that the complainant was given stab injuries on his chest,
abdomen and lips, the chest and abdomen being the vital part of the
body, the trial court has rightly convicted the appellant to undergo R.I. for
a period of 5 years, besides fine.
11. In the case in hand, as per the nominal rolls of the respective
appellants Jeewan and Nem Chand, they are aged 36 years and 38 years
respectively, they are having their own family to cater to, who are
dependent upon them. Otherwise also, taking into account the
circumstances under which the occurrence took place and the nature of
injuries sustained by the complainant, I am of view that sentence of 5
years R.I. awarded to the appellants by learned Additional Sessions Judge
is on the harsher side. I, therefore, accept the plea of learned Amicus
Curiae. While maintaining the sentence of fine, the sentence of
imprisonment awarded to the appellants is reduced from 5 years R.I. to 3
½ years R.I. respectively. Both the appellants shall get the benefit of
Section 428 Cr.P.C.
12. Appellant Jeewan, as per latest nominal roll, submitted by Deputy
Superintendent, Central Jail, Tihar has already undergone incarceration for
a period of 3 years 7 months and 15 days, which takes care of the
substantive punishment awarded to him as well as imprisonment for one
month in default of payment of fine, therefore no further action against
him is called for.
13. As regards Nem Chand, copy of this order be sent to the Jail
Superintendent concerned for information and compliance.
14. The appeals are partly accepted, subject to the aforesaid
modification in the impugned order on sentence.
15. The appeals stand disposed of.
(AJIT BHARIHOKE)
MARCH 08, 2011 JUDGE
ks
