Din Telu Yadav vs State
2013 Latest Caselaw 5599 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRL.A. 683/2010

                                                       Decided on: 03.12.2013

IN THE MATTER OF :
DIN TELU YADAV                                               ..... Appellant
                              Through: Mr. Ajay Verma, Advocate

                        versus

STATE                                                       .....Respondent
                              Through: Ms. Isha Khanna, APP for State with
                              SI Deepak, PS: Narela.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The appellant has filed the present appeal against the judgment of

conviction dated 20.10.2009 and the order on sentence dated 21.10.2009 in

a case arising out of FIR No.253/2008 under Sections 452/323/304/34 IPC

registered at Police Station: Narela.

2. On 22.10.2013, the nominal rolls of the appellant and that of the co-

convict (appellant in CRL.A.132/2010) were called for. As per the nominal

roll of the appellant, against a quantum of sentence of simple imprisonment

for seven years and a fine of Rs.5,000/-, in default of payment of fine, three

months' simple imprisonment under Sections 304/34 IPC, simple

imprisonment for six months under Sections 323/34 IPC and simple

imprisonment for three years and a fine of Rs.3,000/-, in default of payment

of fine, three months' simple imprisonment under Sections 452/34 IPC (all

sentences to run concurrently) in case FIR No.253/2008 under Sections

452/323/304/34 IPC, Police Station: Narela, as on 26.11.2013, he has

undergone sentence for a period of five years, five months and twenty seven

days. The total period of remission earned by the appellant is one year, four

months and twenty days. The unexpired portion of his sentence is one

month and twenty one days (if fine paid). The jail conduct of the appellant

is stated to be satisfactory and there is no other case pending against him.

The nominal roll mentions that the appellant has been working as a factory

Sahayak.

3. Learned counsel for the appellant states that having regard to the

unexpired portion of sentence of the appellant, he does not wish to assail

the impugned judgment of conviction dated 20.10.2009 on merits and only

seeks to make submissions on the order on sentence dated 21.10.2009 by

requesting that the appellant may be released for the period of sentence

undergone by him .

4. Vide judgment of conviction dated 20.10.2009, the appellant herein

and the remaining three co-convicts were held guilty and convicted for the

offence under Sections 452/323/304/34 IPC and thereafter, the sentence as

mentioned hereinabove was imposed on all of them.

5. Learned counsel for the appellant submits that the main accused No.1,

Vakeel Yadav had filed an appeal, registered as CRL.A. 1041/2009 that has

been disposed of by a separate order passed today on the basis of a report

submitted by the Jail authorities that he has already undergone the sentence

imposed on him. It is contended that as per the prosecution case, it is the

said accused, who was carrying a rod with him on the fateful date, i.e., on

29.05.2008 when on the day prior to that (i.e. on 28.5.2008) a quarrel had

taken place amongst some factory workers at a close distance from the

subject factory situated at Narela, where the crime had taken place.

6. The facts recorded in the judgment of conviction reveal that on

29.5.2008, all the four accused persons had arrived at the factory, where

Govind Sharma(PW-3) was posted as a Supervisor and they had forcibly

entered inside and demanded the presence of the thekedar (contractor) and

the factory workers. PW-3 had tried to intervene and pacify the accused

persons but they had started assaulting him. In the meantime, a factory

worker by the name of Gautam had intervened and tried to rescue PW-3 and

at that stage, accused No.1, Vakeel Yadav (appellant in Crl.A.1041/2009),

who was carrying an iron rod with him and the other three accused persons

including the appellant herein, who were armed with Dandas, had hit

Gautam on his head and gave him and Govind Sharma, blows with Dandas.

Both of them were taken to the hospital, where Gautam had succumbed to

his injuries while, Govind Sharma was given medical treatment. Based on

the aforesaid incident, a charge-sheet was filed against all the four accused

persons, including the appellant herein followed by framing of charges and

the trial. Finally, the judgment of conviction was pronounced indicting the

appellant and the other co-accused and awarding them identical punishment

under the order on sentence.

7. Learned counsel for the appellant submits that upon reading the

deposition of Govind Sharma(PW-3), who is the prime witness, it clearly

emerges that accused No.1, Vakeel Yadav was carrying an iron rod and it

was he, who had delivered fatal blows with the said rod on the head of the

deceased and the said witness had deposed that all the other accused

persons had given blows to the deceased on other parts of his body. He

thereafter submits that the appellant herein was not responsible for the

blows on the head of the deceased. He further states that facts of the case

reveal that the alleged dispute had actually taken place between the accused

No.4, Amarjeet and the Thekedar of the factory, where Govind Sharma(PW-

3), was working as a Supervisor and as per the testimony of PW-3, the other

three accused used to visit the factory on earlier occasions to meet

Amarjeet. PW-3 had also deposed that there was no other altercation that

had taken place prior to the incident in question.

8. It is thus submitted by learned counsel for the appellant that while

awarding the sentence to the appellant, the trial court did not consider the

proportionality of the crime and the sentence imposed in the light of the role

attributed to each of the accused and instead, awarded a similar sentence to

all of them. He further states that no minimum period of sentence has been

prescribed under the provision of Section 304 IPC that deals with

punishment for culpable homicide not amounting to murder and in any case,

by now the appellant has undergone almost the entire sentence imposed on

him, barring a month and a half and the sentence of default on account of

non-payment of the fine imposed and therefore his case may be considered

sympathetically by releasing him for the period of sentence undergone by

him till date.

9. Learned APP defends the order of conviction by stating that as the

appellant and the other co-accused were awarded a sentence under Section

304 Part (I) of the IPC, it was not necessary for the trial court to have

awarded different sets of punishments to the convicts merely because

different roles could be attributed to them.

10. The Court has perused the judgment of conviction dated 20.10.2009

and the impugned order on sentence dated 21.10.2009 passed by the trial

court, as also the latest nominal roll of the appellant in the light of the

submissions made by the learned counsels.

11. No doubt, the order on sentence does not take into consideration the

different roles attributed to each of the accused in respect of the incident in

question that had resulted in the death of a person on the fateful day and a

common order on sentence has been passed in respect of all the accused, by

awarding them identical punishment under Section 304, 323, 452 and 34

IPC. But learned counsel for the appellant has chosen to confine his

arguments to point out mitigating factors for the premature release of the

appellant.

12. Referring to the social and financial background of the appellant,

learned counsel states that at the relevant point in time, the appellant was

in his early twenties and a perusal of an application filed by him for

suspension of sentence (Crl.M.B. 276/2011) reveals that he is the sole bread

earner of his family and there is no one else to look after his old and ailing

parents. His nominal roll mentions that the appellant has been working as a

factory Sahayak and his conduct has been satisfactory.

13. Having regard to the fact that the appellant has undergone almost the

entire period of substantive sentence awarded to him in the present case

and by now, the unexpired portion of his sentence would have reduced

further to one month and fourteen days and the sentence in default for non-

payment of fine is for a period of six months and further, taking into

consideration the fact that the appellant belongs to an economically weak

background, he is the sole bread earner of his family comprising of his old

parents and further, his nominal roll mentions that the appellant has been

working as a factory Sahayak and has been maintaining good conduct and

confined himself with good inmates and there is nothing adverse reported

against him regarding his involvement in any illegal and anti human

activities and lastly, in view of his weak financial background as mentioned

in Crl.M.B. 276/2011, this Court is of the opinion that the ends of justice

would be served if the impugned judgment of conviction is upheld and the

appellant is admonished in lieu of the fine imposed and his sentence is

reduced to the period already undergone by him in the present case.

Ordered accordingly.

14. The appeal is disposed of.

A copy of this order be forwarded forthwith to the Superintendent Jail

for making compliances.

                                                        (HIMA KOHLI)
DECEMBER 03, 2013                                          JUDGE
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