Shiv Pujan vs State Nct Of Delhi
2014 Latest Caselaw 296 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Judgment:16.01.2014.
+      CRL.A. 287/2011
       SHIV PUJAN
                                                               ..... Appellant
                             Through        Appellant with his counsel
                                            Mr.Ashitesh Gupta, Adv.
                             versus

       STATE NCT OF DELHI
                                                              ..... Respondent
                             Through        Ms. Fizani Husain, APP along
                                            with Inspector Suraj Bhan

+      CRL.A. 1122/2011 & Crl. M. (B) No.108/2014
       RAM SUNDER
                                                               ..... Appellant
                             Through        Mr. Vikas Pahwa, Sr. Adv. With
                                            Ms. Aeshna Dhaiya, Adv.
                             versus

       STATE
                                                              ..... Respondent
                             Through        Ms. Fizani Husain, APP along
                                            with Inspector Suraj Bhan
                                            Gautam.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 The appellants are aggrieved by the impugned judgment and order

of sentence dated 20.11.2010 and 24.11.2010 vide which appellant Ram

Sunder had been convicted for the offence under Sections 363/366/376

of the IPC. He had been sentenced to undergo RI for a period of 4 years

and to pay a fine of Rs.1,000/- and in default of payment of fine, to

suffer RI for a period of 1 month for the offence under Section 363 of

the IPC; for the offence under Section 366 of the IPC, he had been

sentenced to undergo RI for a period of 7 years and to pay a fine of

Rs.2,000/- and in default of payment of fine, to undergo SI for 3

months; for the offence under Section 376 of the IPC, he had been

sentenced to undergo RI for a period of 8 years and to pay a fine of

Rs.2,000/- and in default of payment of fine to undergo SI for 2 months.

Appellant Shiv Pujan had been convicted for the offence under Sections

363/366 of the IPC. The sentence imposed upon Ram Sunder for the

aforenoted two offences is the same which had been imposed upon the

appellant Shiv Pujan. Both the sentences were directed to run

concurrently.

2 Learned senior counsel for appellant Ram Sunder, at the outset in

terms of the last order, submits that he is not contesting the appeal on

merits; he prays that the period of sentence already undergone by him be

treated as the sentence imposed upon him. It is pointed out that out of

the maximum punishment of 8 years which has been imposed upon him,

he has already undergone sentence of 7 years, 2 months and 8 days. This

submission of the learned senior counsel for the appellant is reflected

from the nominal roll. The nominal roll further reflects that the

appellants have a good conduct and there is nothing unsavory in their

behavior.

3 Qua the appellant Shiv Pujan, it has been contended that out of

maximum punishment of 7 years imposed upon him, he has already

undergone incarceration of 5 years, 6 months and 7 days. He has even

otherwise been convicted for the lesser offence i.e. offence under

Sections 363/366 of the IPC.

4 Attention has been drawn to the impugned judgment. The trial

Judge while passing the judgment had noted that the conduct of the

prosecutrix as to whether she had been lured and taken to Ludhiana by

the appellants under fear or force is questionable; statement of PW-5

(Surender Pal), statement of PW-7 (Kiran Kumari) as also the statement

of the prosecutrix examined as PW-2 were considered. While noting the

conduct of the prosecutrix as doubtful that she was forcefully taken by

the accused, the Court had however rightly noted that this looses

significance in view of the fact that the prosecutrix was a minor on the

date of the offence; her consent being immaterial.

5 Record further shows that the prosecutrix had got married to Ram

Sunder which was evident from the photograph (Ex.PW-11/J). It is in

this background that this Court has considered the submission of the

learned counsel for the appellants as to whether the period of sentence

already suffered by each of the appellants can be the sentence imposed

upon each of them.

6 As noted supra, accused Ram Sunder out of the 8 years of

punishment imposed upon him has already undergone imprisonment of

7 years and more than two months. He is presently in judicial custody.

7 Appellant Shiv Pujan has also undergone 5 years and more than 8

months out of the total period of 7 years of punishment imposed upon

him. Fine has also since been paid. The minimum punishment

prescribed under Section 376 of the IPC is 7 seven year which period

has already been undergone by appellant Ram Sunder.

8 It is in this background and the submissions made by the

respective counsels for the parties that the offence relates to the year

2007 and each of the appellants having undergone almost 90% of the

punishment prescribed, it would be a fit case in the interest of justice to

release the appellants of the period of sentence already undergone by

each of them. Thus while maintaining the conviction, the appellants

Ram Sunder and Shiv Pujan be now released forthwith, if not required

in any other case.

9 Both the appeals are disposed of in the above terms.

10 A copy of this order be sent to the Jail Superintendent for

information and necessary compliance.

Crl. M.A. No.2672/2011 in Crl. Appeal No.287/2011

11 This application seeking ossification test of the prosecutrix has

become infructuous.

12     Application disposed of.



                                              INDERMEET KAUR, J
JANUARY 16, 2014
A