Delhi High Court
Sultan vs State on 5 February, 2013
Author: Indermeet Kaur
R-14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:05.02.2013
+ Crl. A. 217/2000
SULTAN ...Appellant
Through: Mr. Sumeet Verma, Adv.
Versus
STATE ...Respondent
Through: Mr. Manoj Ohri, APP.
SI Gulshan Kumar, PS Geeta
Colony.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (oral)
1 The appellant Sultan along with co-accused Vinod Kumar @
Bihari have been convicted under Section 307/34 of the Indian Penal
Code (IPC) and each had been sentenced to undergo rigorous
imprisonment for a period of five years and to pay a fine of Rs.1,000/- in
default of payment of fine to further undergo simple imprisonment for
six months. Benefit of Section 428 of Cr.PC had been granted.
2 Before this Court the appellant is Sultan. The co-convict has not
filed any appeal. The nominal roll of the appellant shows that he has
Crl. Appeal No. 217/2000 Page 1 of 7
undergone sentence of about 10 months including his period as a under-
trial; submission of the learned counsel for the appellant being that he
must have also earned certain remissions in this period.
3 The present FIR was registered at the complaint of Maqbool
Hassan (PW-1). He along with co-accused Sultan and Vinod had gone to
see a cinema and after seeing the cinema knife injuries had been given
to him by both the accused. Accused Sultan caught hold of him whereas
accused Vinod gave him one knife blow. Thereafter accused Vinod
caught hold of him and accused Sultan gave 3-4 knife blows. The
testimony being to the effect that he had been appointed as a
Khidmatkar of the Durgah; accused Sultan wanted to seize the said
sanand so that PW-1 would be out of the Mazar. This was the motive
which has been attributed to the accused which had led to the incident.
Further deposition of PW-1 being that he had received knife injuries on
his abdomen and his back and on his left leg. Thereafter the accused
persons ran away from the spot. This testimony of PW-1 was recorded
in chief on 16.01.1995 and was deferred as the case property i.e. the
knife could not be produced. On the following date i.e. on 19.02.1996 as
Crl. Appeal No. 217/2000 Page 2 of 7
the pulanda was again not produced, he was again examined in chief on
08.09.1998. His cross-examination took place on 23.03.1999 by which
time PW-1 had turned turtle; in his cross-examination, he refused to
identify the accused Sultan; submission being that he had been tutored
by the Police to name him; further deposition being to the effect that it
was late at night when the incident had occurred and he could not see
any of the assailants and in fact this assailant was not present in Court.
4 The entire case of the prosecution was based on the testimony of
PW-1. The MLC Ex. PW-5/A was proved by PW-5 Dr. R.V. Singh.
Since Ex. PW-5/A already stood proved, the argument of the learned
counsel for the appellant that PW-9 could not identify the signatures of
the Doctor who had prepared the MLC is not of much weight.
5 Ex. PW-5/A had noted the injuries on PW-1 to be simple but
sharp. Admittedly the knife which was used in the incident was not
produced although the prosecution had at one time taken time to
produce it but the same again remained un-exhibited. Record shows that
the injured remained admitted in the hospital between 21.07.1991 to
02.08.1991 i.e. for a period of 11 days. The nature of the injuries as
Crl. Appeal No. 217/2000 Page 3 of 7
opined in Ex. PW-5/A shows that there were a deeply embedded CLW's
up to 6" in the back; a wound of a lesser depth below the angle of
scapula and another around the level of the7"rib as also in the renal area.
6 This ocular testimony of PW-1 coupled with the medical evidence
has established that the nature of the injuries suffered by PW-1 were
dangerous which had entailed his confinement in the hospital for almost
11 days. The motive of the crime was also borne out in the first part of
the version of PW-1 although as noted supra, the witness had become
hostile in the later part of his version.
7 The law on this point is settled. The testimony of a hostile witness
is not to be disregarded in toto. The cross-examination of PW-1 having
taken place almost four years later after his first version of recorded
(which was in 1995 and cross-examination having been effected in
1999), the trial Court has rightly noted that the witness was won over in
this intervening period. The Supreme Court in AIR 1991 Supreme Court
1853 Khujji @ Surendara Tiwari Vs. State of Madhya Pradesh had
reiterated that the evidence of a hostile witness cannot be effaced or
washed off the record altogether and that part of his evidence which was
Crl. Appeal No. 217/2000 Page 4 of 7
otherwise acceptable can be acted upon qua the hostile portion of his
testimony. The corroborative medical evidence as also the members of
the investigating team was also rightly noted.
8 The conviction of the appellant does not call for any interference.
9 Learned counsel for the appellant has vehemently argued that the
incident had occurred more than 22 years ago i.e. in July, 1991 and in
this intervening period of 22 years, there has been not even a single
complaint against the appellant; he has reformed himself and since that
time has five minor children aged 12, 9, 5, 3 and youngest child aged
1-½ years; submission being that he is sole bread winner of his family
and the object and aim of the punishment being reformative, the
appellant would clearly qualify in such a category and accordingly he
has prayed that the period of sentence already undergone by him be
treated as his sentence.
10 Submission of the learned counsel for the appellant on this count
has force. The incident is admittedly more than two decades old; the
appellant has grown with the family over the years; as on the date of his
conviction which was on 29.10.1999, he was reported to be 30 years of
Crl. Appeal No. 217/2000 Page 5 of 7
age meaning thereby that he is at present in his mid 40's. He has spent
about one year in jail although at the time of imposing sentence, it
appears to have been recorded that he had spent four and half years in
judicial custody. This is however not borne out from the nominal roll
which has been placed before this Court.
11 The reformative theory of punishment emphasizes on reformation
of offenders through the method of individualization. It is based on the
humanistic principle that even if an offender commits a crime, he does
not cease to be a human being. Therefore, an effort should be made to
reform him/her during the period of his/her incarceration.
12 In this background, this would be a fit case where keeping in view
the fact that the incident had occurred more than 22 years ago and the
appellant still working in the same Durgah which is also a part of the
place where the victim was living and the Court has been informed that
the parties are still living in the same vicinity and they have been living
in peace with one another, the ends of justice, in the peculiar facts of this
case would be met if the appellant is directed to be released on the
sentence already undergone by him. It is ordered accordingly. The
Crl. Appeal No. 217/2000 Page 6 of 7
appellant is present in Court. His bail bond stands cancelled. Surety
stands discharged. A copy of this order be sent to the Jail Superintendent
for necessary intimation.
13 The appeal disposed of in the above terms.
14 This Court appreciates the assistance rendered by Ms. Charu
Verma, learned amicus curiae who had been appointed by this Court to
render assistance in the matter.
15 Appeal is allowed in the above terms.
FEBRUARY 05, 2013 INDERMEET KAUR, J.
A
