Tirath Singh vs State
2013 Latest Caselaw 4868 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 22nd OCTOBER, 2013
                                     DECIDED ON : 23rd OCTOBER, 2013

+                       CRL.A. 290/2004 & CRL.M.A. 5340/2013

       TIRATH SINGH                                            ..... Appellant
                              Through :   Mr.Chetan Lokur, Advocate.

                              VERSUS

       STATE                                              ..... Respondent
                              Through :   Mr.Lovkesh Sawhney, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J.

1. The appellant - Tirath Singh challenges judgment dated

22.01.2004 and order on sentence dated 23.03.2004 in Sessions Case No.

481/96 arising out of FIR No. 80/83 PS Tuglak Road by which he was

convicted for committing offences punishable under Sections

395/397/398/452/450/455/347 IPC and sentenced to undergo RI for seven

years with total fine ` 2,200/-.

2. Allegations against the appellant were that on 02.05.1983 at

about 07.15 A.M. at Kothi No. 31, Golf Links, he and his associates -

Satpal, Hem Singh, Madan Lal and Bansi Lal committed dacoity and

decamped with gold ornaments and other household articles belonging to

Ramesh Kohli and Sunita Kohli in a taxi No. DLT 2644. The assailants

used deadly weapons while committing dacoity. During the course of

investigation, the assailants were arrested and robbed articles were

recovered pursuant to their disclosure statements. After completion of

investigation, a charge-sheet was submitted against all of them and they

were brought to trial. The prosecution examined twenty two witnesses to

substantiate the charges. On appreciation of the evidence and considering

the rival contentions of the parties, the Trial Court, by the impugned

judgment convicted all assailants including the appellant - Tirath Singh

for the offences mentioned previously. It is significant to note that Satpal

died during the pendency of the trial and the proceedings against him were

dropped as abated. Hem Singh and Bansi Lal challenged the judgment in

Crl.A.No. 306/2004. The said appeal stood abated on their death.

3. During the course of arguments, learned counsel for the

appellant on instructions from Tirath Singh stated at bar that he has opted

not to challenge the conviction under the aforesaid offences. He however,

prayed for modification of the order on sentence as the appellant has

already served custody for about more than 3 years.

4. I have considered the submissions of the parties and have

examined the record. Since the appellant has opted not to challenge the

findings of the Trial Court on conviction under the aforesaid offences and

has accepted it voluntarily, the order on conviction stands affirmed. Tirath

Singh was sentenced to undergo RI for seven years. Vide order dated

08.08.2006, substantive sentence was suspended and he was admitted to

bail and enlarged on bail. Nominal roll dated 25.07.2006 reveals that he

had already undergone 3 years, 8 months and 19 days incarceration as on

23.07.2006 including remissions out of total imprisonment of seven years.

He is aged about 50 years and is suffering from kidney ailments for the

last two years. He has four minor children to maintain them. The appellant

was not involved in any other criminal case. His overall conduct in the jail

was satisfactory. The appellant has remained on bail for the last seven

years and nothing has come on record that during this period he indulged

in any other criminal act or misused the liberty. No useful purpose will be

served to send the appellant to jail again to undergo the remaining period

of sentence. There are peculiar facts and circumstances of the case to

modify sentence. The Trial Court Record was not traceable despite best

efforts. The statements of the witnesses recorded by the Trial Court could

not be reconstructed. In the absence of statements of the prosecution

witnesses, it is highly difficult to appreciate the evidence. Learned APP

has no objection if the power under Section 482 Cr.P.C is exercised and

the minimum sentenced awarded to the petitioner/appellant RI for seven

years is reduced to the period already undergone by him in this case.

Considering the peculiar and special circumstances where the original

record is not available and taking into consideration all the facts and

circumstances recorded above, for special and adequate reasons, the order

on sentence is modified and the appellant is sentenced to undergo the

sentence for the period already spent by him in this case.

5. Since the appellant has been released for the sentence already

undergone by him, he need not surrender before the Trial Court/Jail

Superintendent. Copy of this order be sent to Jail Superintendent, Tihar

Jail for information. Re-constructed Trial Court record be detained as the

same is required in Crl.A.No.300/2004. The appeal stands disposed in the

above terms. Bail bond and surety bond of the appellant stand discharged.

Pending application also stands disposed of.

(S.P.GARG) JUDGE OCTOBER 23, 2013/tr