Mohd. Ifraz @ Sonu Master @ Katua vs The State (Govt. Of Nct Of Delhi)
2011 Latest Caselaw 2417 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment delivered on: May 05, 2011

+      CRIMINAL APPEAL NO. 354/2011 & CRL.M.B.464/2011

       MOHD. IFRAZ @ SONU MASTER @ KATUA ....APPELLANT
               Through: Mr.Ranbir Singh Kundu, Advocate with
                        Mr. Amit Nehra, Advocate.

                       Versus

       THE STATE (GOVT. OF NCT OF DELHI) .....RESPONDENT

Through: Mr. Sunil Sharma, 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. This appeal is directed against the impugned judgment of

learned Additional Sessions Judge dated 06th May, 2006 in Session

Case No. 73/04, FIR No. 261/04, under Section 302 IPC, P.S.

R.K.Puram and the consequent order on sentence dated 09 th May,

2006 whereby the appellant Mohd. Ifraz @ Sonu Master @ Katua has

been convicted for the offence of culpable homicide not amounting

to murder punishable under Section 304 Part II IPC and sentenced to

undergo RI for the period of 10 years besides payment of fine of `

5000/-, in default, to undergo RI for further period of three months.

2. Briefly stated, case of the prosecution is that on 15th April,

2004 at about 8.30 p.m. in front of godown of Dhyani Tent House,

Anantram Dairy, Sector 13, R.K.Puram, the appellant and the victim

Rajesh, who both were the employees of the tent house fought with

each other on the issue of distribution of the tips received a day

earlier in a marriage party at Laxmi Bai Nagar. During fight, the

appellant Sonu inflicted a knife wound on the abdomen of Rajesh

with such a force that his intestine came out. The appellant was

able to escape from the place of occurrence with the knife. Several

persons from the locality collected at the spot and someone

informed the police. In the meantime, a PCR Van came and took the

injured to Safdarjung Hospital. On the receipt of information

regarding incident vide DD No. 71B recorded at P.S. R.K.Puram, SI

Mahender Singh reached at the spot and where it was reported that

the victim has already been removed to the hospital. SI Mahender

Singh reached at Safdarjung Hospital and found that the deceased

Rajesh had been declared brought dead at about 10.00 p.m. One

Dalbir Singh who claimed himself to be the eye witness gave his

statement Ex.PW1/A to SI Mahender Singh, which was sent to the

police station along with the endorsement Ex.PW14/A for the

registration of the case. It is alleged that on completion of

formalities of investigation, the appellant was challaned and sent for

trial.

3. The appellant was charged for the offence of murder

punishable under Section 302 IPC. He pleaded not guilty to the

charge and claimed to be tried.

4. In order to bring home the guilt of the appellant, prosecution

examined 19 witnesses including the eye-witness of the occurrence

as well as the recovery of the weapon of offence.

5. The appellant when examined under Section 313 CrPC denied

the prosecution version and claimed to be innocent. He did not opt

to produce any evidence in defence.

6. Learned Additional Sessions Judge, on consideration of the

submissions made by the rival parties and the evidence on record,

found the appellant guilty of the offence of culpable homicide not

amounting to murder and sentenced the appellant vide order on

sentence dated 09th May, 2006.

7. Learned Sh. Ranbir Singh Kundu, Advocate, on instructions of

the appellant, submits that the appellant does not press his appeal

on merits and admits his guilt so far as factual matrix of the case is

concerned. He has however confined his submissions to the

quantum of sentence. Learned counsel submits that the appellant,

on conviction under Section 304 Part II IPC, has been sentenced to

undergo maximum term of imprisonment i.e. 10 years RI. It is

contended that the substantive sentence awarded to the appellant

is too harsh and it does not commensurate with the gravity of the

offence committed by the appellant. Learned counsel submitted

that the appellant was a young man of 22 years at the time of

commission of offence and he has responsibility of a large family

comprising of his parents and three sisters. It is also contended that

the appellant has his whole life ahead of him and he deserves at

least one chance to relent and repent and become a useful member

of the society. Thus, learned counsel for the appellant has urged for

reduction of substantive sentence from 10 years RI to the

imprisonment for the period already undergone by him in custody.

8. Learned APP, on the contrary, has argued in favour of the

impugned order on sentence. It is submitted that the appellant is

guilty of a grave offence of committing culpable homicide not

amounting to murder. Therefore, the sentence awarded to him

commensurate with the gravity of offence committed by the

appellant.

9. I have considered the rival contentions and perused the record.

10. Sentencing of an accused in a criminal matter is a serious

exercise and the quantum of sentence imposed 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, wherein the Supreme Court, 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."

11. In the case in hand, as per the nominal roll of the appellant

received from the Jail Superintendent, the appellant has undergone

incarceration for a period of 07 years and 09 days (actual) and he

has also earned remission in sentence for a period of 01 year, 03

months and 20 days. It is reported that unexpired portion of his

sentence is 01 year, 08 months and 01 day as on 26th April, 2011.

The appellant never availed of the benefit of parole or interim bail

and he does have any record of previous conviction nor any case is

pending against him. The appellant is a young man of 27 years

having responsibility of his aged parents and sisters. He appears to

have realized his mistake, thus, in my view, he deserves at least a

chance to mend his ways and become a useful member of the

society. Otherwise also, as per the evidence on record, the

occurrence took place on a trivial issue of distribution of Tip received

and the appellant suddenly inflicted knife blow upon the victim in

the heat of the moment. There was neither intention nor motive on

the part of the appellant to kill the deceased. It is a case of a single

blow, which unfortunately resulted in death of the victim. Thus, the

appellant deserves leniency. In the matter of Tholan Vs. State of

Tamil Nadu, 1984 SCC(Criminal) 164, the Supreme Court while

dealing with the case of similar nature, converted the conviction of the

appellant of that case from charge under Section 302 IPC to charge

under Section 304 Part II IPC and observed that sentence of 05 years

would be quite adequate under the circumstances. Therefore, drawing

a parallel from the aforesaid judgment, I accept the appeal so far as

quantum of sentence is concerned and while maintaining the sentence

of fine of ` 5000/-, in default, to undergo RI for a period of three

months, the substantive sentence of 10 years RI is reduced to the

period already undergone in custody by the appellant.

12. The appeal is accepted with the aforesaid modification.

13. Copy of the judgment be sent to the concerned Jail

Superintendent for information and necessary action.

(AJIT BHARIHOKE) JUDGE MAY 05, 2011 akb