Dalip @ Janu vs State
2014 Latest Caselaw 4888 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of decision: 26th September, 2014
+       CRL.A. 1376/2013 & Crl. MA 9881/2014

        DALIP @ JANU
                                                                     ..... Appellant
                            Through:      Ms. Payal Juneja, Adv.
                            versus
        STATE
                                                                  ..... Respondent
                            Through:      Ms. Ritu Gauba, Additional Public
                                          Prosecutor for the State alongwith SI
                                          Gaurav Police Station Jahangirpuri.
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

: SUNITA GUPTA, J. (ORAL)

1. Feeling aggrieved by the judgment dated 30.08.2013 in case FIR No. 182/2007 registered under Section 395/397/412 of Indian Penal Code in Sessions Case No.71/2007, vide which the appellant - Dalip @ Janu alongwith co- accused Sunil @ Sonu were convicted for offence under Section 395 of Indian Penal Code and order on sentence dated 04.09.2013, vide which he was sentenced to undergo rigorous imprisonment for five years with fine of Rs.5,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months, the present appeal has been preferred by the appellant.

2. At the outset, the learned counsel for the appellant - Dalip @ Janu did not challenge the conviction of the appellant for offence under Section 395 of Indian Penal Code, however, it was submitted by her that the appellant is in custody for a period of approximately four (4) years and as such he be released on the period already undergone by him in custody. Ms. Ritu Gauba, Additional Public Prosecutor for the State opposed the submissions of learned counsel for the appellant.

3. As regards the conviction of the appellant for offence under Section 395 Indian Penal Code, the same was rightly not challenged by learned counsel for the appellant keeping in view the fact that from the testimony of complainant (PW4) - Narender Ahuja, which found corroboration from PW2 - Rakesh Ahuja and PW3 - Ashwini Ahuja, it was established that on 07.03.2007 at about 11- 11.15 pm when PW4 - Narender Ahuja was taking evening walk in the street near his house no.I-27, Mahendra Park, 4-5 boys came there and one of them asked time from him. He told the time and thereafter the boy who had enquired about the time caught hold of him by his neck and his other associate came there and two persons caught hold of his hand and one person put a knife on his chest and another person searched his pocket and took out Rs.6600/- and election card and thereafter they all ran away. He raised alarm. His neighbour - Ashwini Ahuja and his brother Ramesh came there and they all chased the assailants. Accused Sunil @ Sonu and Dalip @ Janu were apprehended. From the possession of accused Sunil @ Sonu election card and Rs.6600/- were recovered. Police was called. The accused were handed over to the police and thereafter further investigation was carried out. Under the circumstances, the conviction of the appellant for offence under Section 395 of IPC is upheld.

4. Coming to the quantum of sentence, it is submitted by learned counsel for the appellant that the appellant has the responsibility to maintain his old age ailing mother and three sisters. Father of the appellant has already expired. The financial condition of the family is very weak and they are on the verge of starvation. They are living on the mercy of some distant relatives. The appellant is involved in one other case besides this case, but he is victim of circumstances. He is languishing in jail for almost four years and, therefore, an application was moved by the appellant bearing Crl. MA No.9881/2014 for releasing him on the period already undergone by him in custody.

5. As per the nominal roll of the appellant dated 23.07.2014, he has undergone period of three (3) years five(5) months and seven (7) days besides earning remission of two (2) months and fifteen (15) days. His overall conduct in jail has been reported to be satisfactory.

6. Under the circumstances, the substantive sentence of the appellant is modified to the period during which he remained as an under-trial and during the pendency of this appeal, while the sentence of fine remain unaltered. On deposit of fine and in case the appellant is not required in any other case, he be released forthwith by the Superintendent Jail.

The appeal is accordingly disposed of. Pending applications, if any, also stand disposed of.

A copy of this order be communicated to Superintendent Jail for information and necessary compliance.

The Trial Court be returned back along with a copy of this order.

(SUNITA GUPTA) JUDGE SEPTEMBER 26, 2014 rd