Delhi High Court
Kamal vs The State Of The Nct Of Delhi on 20 May, 2011
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1204/2010
KAMAL ..... Appellant
Through: Ms. Rakhi Dubey, Adv.
versus
THE STATE OF THE NCT OF DELHI ..... Respondent
Through: Mr. M.N. Dudeja, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
ORDER
% 20.05.2011
Oral
1. This is an appeal filed by the appellant with the help of Legal
Aid Counsel against the judgment and the order of sentence
dated 21.11.2009 and 25.11.2009 respectively sentencing the
appellant to imprisonment of three years and a fine of
Rs.1,000/- for an offence under Section 25 of the Arms Act
and in default of payment of fine he has been directed to
further undergo 15 days imprisonment.
2. It has been observed that the appellant shall be given the
benefit of Section 428 Cr.P.C. Although, the present appeal
has been filed by the appellant challenging the merits of the
case, however, during the course of his oral submissions, the
learned counsel for the appellant has contended since the
appellant has already undergone a substantial portion of
sentence therefore, she is not challenging the judgment dated
21.11.2009 on merits and is confining her submissions only
to the question of sentence. It has been urged by her is
that the appellant having been found guilty for an offence
under Section 25 of the Arms Act has been sentenced to RI of
three years and a fine of Rs.1,000/- and the said sentence
may be reduced to the period already undergone. It is
further stated that the appellant has already undergone a
sentence of two years and six months approximately.
3. The learned APP has not contested the submission of the
learned counsel for the appellant.
4. I have heard the learned counsel for the parties and have also
perused the record.
5. The appellant was charged for an offence under Section
399/402 IPC read with section 25 of the Arms Act. The
allegations against the appellant was that he along with co-
accused Zakir, Kamal, Saleem, Mohd. Mahboob and Montu
had planned to commit dacoity. It is alleged that on a secret
information having been received by the police a raid was
conducted and the appellant and the other co-accused were
arrested. So far as the appellant is concerned, a handmade
pistol was recovered from him. After the investigation a
charge sheet was filed and the prosecution examined as many
as 11 witnesses in support of its contention. The statements
of the accused persons were recorded, however, none of the
accused persons including the appellant herein adduced any
defence.
6. The learned Trial Judge on the basis of the submissions made
before him sentenced the appellant to imprisonment of three
years and a fine of Rs.1,000/- under Section 25 of the Arms
Act for being in possession of a fire arm. The learned
counsel for the appellant has now contended that the
appellant has already undergone two years and six months
sentence approximately, and therefore, the appellant being of
young age, the sentence of three years may be reduced to the
period already undergone by him in jail. So far as the fine of
Rs.1,000/- is concerned, it has not been stated as to whether
the fine has been paid or not.
7. Be that as it may, I have considered the submissions made by
the learned counsel for the appellant. There is no dispute
about the fact that the appellant according to the nominal
roll, he has already undergone two years and six months
sentence approximately. The balance sentence of six months
is still required to be served by him. It is also shown in the
nominal roll that the appellant has been involved in as many
as seven cases and all of them are of robbery under Section
395 and 397 IPC. The details of all the cases are absent
except two cases which are pending in the state of M. P. and
U.P. In one of the case, the appellant has been sentenced to
RI of seven years and a fine of Rs.5,000/- and in default of
payment of fine, he is required to undergo RI of 14 months.
8. No doubt, that the nominal roll index which has been sent by
the Superintendent, Central Jail, Delhi does not give a happy
picture about the past credentials of the appellant, but
nevertheless the opinion of the Court should not get clouded
and biased by the past conviction or the number of cases
which are pending against him. Past conviction may be the
ground for sending convict to enhanced punishment but in
the absence of this charge of past conviction, it will not be
proper to get the past conviction influenced the present
finding. The appellant facing other charges, in other Courts
that should not be a ground in itself to deny the benefit of
reduction of sentence to the appellant especially once the
prosecution has chosen not to cite the previous conviction for
enhancement of punishment. Admittedly, as on date the
appellant has already undergone substantial portion of the
sentence i.e. two years and six months approximately. I,
therefore, feel that even if the appellant is to undergo
complete sentence of three years, it is not going to make any
substantial change in the behaviour or on the contrary
showing of a small reduction, the period of sentence may have
a positive impact on him away from the path of criminality.
9. For these reasons, I am inclined to accept the contention of
the learned counsel for the appellant and to reduce the
sentence of the appellant from a period of three years to a
substantive period already undergone by him in jail.
However, the imposition of fine stand as it is and in case the
fine has not been paid, the appellant shall be further
sentenced to 15 days in default thereof. Needless to say after
undergoing the sentence, the appellant may be released
forthwith provided that he is not involved or wanted in any
other case in Delhi.
10. With these directions, the appeal stands allowed partially.
V.K. SHALI, J.
MAY 20, 2011
KP
