Sunder Dev Kushwaha vs State
2015 Latest Caselaw 255 Del

$-6
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 DECIDED ON : 12th JANUARY, 2015

+            CRL.A. 422/2012 & CRL.M.B.1906/2013

      SUNDER DEV KUSHWAHA                        ..... Appellant

                        Through :    Mr.Jaideep Malik, Advocate.


                        versus

      STATE                                      ..... Respondent

                        Through :    Ms.Kusum Dhalla, APP.


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

S.P.Garg, J. (Open Court)

1. The appellant - Sunder Dev Kushwaha impugns a judgment

dated 06.03.2012 of learned Additional Sessions Judge in Sessions Case

No. 80/09 arising out of FIR No.731/07 under Sections 489B/489C/34

IPC PS Lajpat Nagar. By an order dated 21.03.2012, the appellant was

sentenced to undergo RI for six years with fine ` 10,000/- under Section

489B and RI for four years under Section 489C. Both the sentences were

to run concurrently.

2. Allegations against the appellant and co-accused persons -

Jagram and Shishram were that on 20.07.2007 when Sub-Inspector

Pramod Gupta along with other police officials was on patrolling duty, he

reached at Amar Colony Market where Vikrant, a Juice Vendor called

him. On seeing the police officials, two persons standing there started

slipping and were apprehended. Statement of the Juice Vendor - Vikrant

was recorded. He alleged that two persons had come at his shop at C-13,

Amar Colony Market and had asked for two glasses of juice. They had

handed over a fake currency note of ` 500. He got suspicion and called

the police. Both the accused persons, one of which was the appellant

Sunder Dev Kushwaha were examined. Fake currency notes amounting to

` 64,500/- were recovered from the appellant. ` 60,000/- fake currency

notes were recovered from co-accused Shishram. Statements of the

witnesses conversant with the facts were recorded. Another co-accused

Jagram was apprehended at the instance of the appellant and his associate

and he recovered forty fake currency notes in the denomination of `500

from his house. After completion of investigation, a charge-sheet was

submitted against the appellant and two other accused persons. The

prosecution examined seven witnesses to bring home the charges. In 313

statement, the appellant denied his involvement in the crime and pleaded

false implication. The accused persons examined three defence witnesses,

Ram Kishan, Ram Sobhawan and Saroj Prasad. After considering the rival

contentions of the parties and appreciating the evidence, the Trial Court,

by the impugned judgment held all the accused persons guilty for the

offences mentioned previously. The appellant was sentenced as mentioned

above. Aggrieved by the said judgment, the appeal has been preferred by

the appellant.

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

appellant, on instructions, stated that the appellant has opted not to

challenge the findings of the Trial Court on conviction. He, however,

prayed to take lenient view as the appellant is not a previous convict and

has suffered substantial portion of the substantive sentence awarded to

him. To this, learned Addl. Public Prosecutor for the State has no

objection.

4. Since the appellant has accepted the findings of the Trial

Court on conviction and there is ample evidence coupled with recovery, I

am of the view that the prosecution has established its case beyond

reasonable doubt. The findings of the Trial Court on conviction are

affirmed.

5. The appellant was sentenced to undergo RI for six years

under Section 489B and four years under Section 489C with fine `

10,000/-. Fine is stated to have been deposited. Nominal roll dated

05.01.2015 reveals that the appellant has already remained in custody in

this case for three years, seven months and six days. He also earned

remission for eight months and eleven days. The unexpired portion is only

one year, eight months and thirteen days as on 05.01.2015. The appellant

is not involved in any other criminal case and is not a previous convict.

His overall conduct in jail is satisfactory. Considering the facts and

circumstances of the case, sentence order requires modification. The

period already undergone by the appellant in this case shall be taken as

substantive sentence under Sections 489 B and 489 C IPC.

6. Appeal stands disposed of in the above terms. Pending

application also stands disposed of. Trial Court record be sent back

immediately with the copy of the order. A copy of the order be sent to the

Superintendent Jail for information.

(S.P.GARG) JUDGE JANUARY 12, 2015 / tr