Delhi High Court
Kamender vs State Of Delhi on 30 August, 2017
$~R-13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: August 30, 2017
+ CRL.A. 344/2017
KAMENDER ..... Appellant
Through: Mr.Vikas Padora, Advocate
with appellant from J/C.
versus
STATE OF DELHI ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State with SI Shailender
Kumar and ASI Puran Singh,
PS Gokal Puri.
PRATIBHA RANI, J. (Oral)
1. The appellant has preferred the instant appeal under Section 374
(2) Cr.P.C. assailing the judgment dated 16th November, 2016 and
order on sentence dated 28th November, 2016 vide which he has been
convicted for committing the offence punishable under Section 307
IPC and under Section 25 Arms Act and sentenced as under:-
(i) U/S 307 IPC : to undergo RI for ten years with fine
of ₹25,000/- and in default of payment
of fine, to undergo SI for one year.
(ii) U/S 25 Arms Act : to undergo RI for one year.
Both the sentences were ordered to run concurrently.
2. In brief, the prosecution case is that on 24th August, 2011 an
information was received at PS Gokal Puri regarding an incident of
stabbing, which was reduced into writing vide DD No.22-A. The DD
was assigned to SI Dev Raj who alongwith Ct.Shivendra Kumar
reached the spot. There he came to know that injured Pradeep and
accused Kamender had been removed to hospital. Since no eye
witness was present at the spot, ASI Dev Raj went to GTB Hospital
and obtained the MLC of the injured, who was in OT. The injured
was opined to be 'unfit for statement'. Pw-2 Mr.Anil Kumar - brother
of the injured was present in the hospital who made statement to the
effect that his brother PW-1 Pradeep (injured) had a quarrel with
accused on 14th August, 2011 with regard to some money transaction
but matter was sorted out on that day. On 24th August, 2011 at about
2.00 pm again there was some hot words exchanged and quarrel
between the injured and the accused. When he (PW-2 Anil Kumar)
intervened to pacify them, the accused told him that he could not
protect his brother forever. Thereafter at about 4.00 pm on the same
day, when he alongwith his brother Pradeep was going to have tea and
reached in front of house of Vikram Singh, accused suddenly took out
a knife and stabbed his brother in his stomach, back and neck. When
he raised alarm, the public persons apprehended the accused as he was
trying to flee from the spot. He was given beating by the public
persons. PCR was informed and injured was removed to the hospital
by PCR.
3. On the basis of above statement, FIR No.296/2011 under
Section 307 IPC and under Section 25 Arms Act was registered at PS
Gokal Puri. The appellant/accused was arrested and after completion
of investigation, the chargesheet was filed.
4. On the basis of material placed on record by the prosecution,
the appellant was charged for having committed the offence
punishable under Section 307 IPC and under Section 25 Arms Act, to
which he pleaded not guilty and claimed trial.
5. The learned Trial Court after concluding the trial, held the
appellant guilty for committing the offence punishable under Section
307 IPC and under Section 25 Arms Act and sentenced him in the
manner aforesaid.
6. Feeling aggrieved, the appellant has challenged his conviction
and sentence by filing the present appeal.
7. Pursuant to the production warrants issued, the appellant has
been produced from J/C.
8. Mr.Vikas Padora, Advocate (DHCLSC) for the appellant, on
instructions, submits that the appellant is not challenging his
conviction in this case. However, prayer has been made by the
appellant to take a lenient view on the quantum of sentence.
9. Since the appellant is not challenging his conviction under
Section 307 IPC and under Section 25 Arms Act, the same is upheld.
10. Now coming on the quantum of sentence, the appellant submits
that he was the sole bread earner in the family and was working as
tailor for earning the livelihood. The appellant submits that the
dispute with the injured PW-1 Pradeep was on account of some money
transaction as Pradeep was not returning the amount taken from him
and whenever he demanded the same, he used to quarrel with him.
The incident took place in a heat of moment though earlier they had
cordial relations and he is remorseful for whatever he has done to the
injured. Except this case, he is not involved in any other case. He
requests that a chance may be given to him to reform and sentence of
ten years awarded to him in this case being very harsh, may be
reduced. The appellant also submits that since his family members i.e.
his wife and two children are living in poverty and are not in a
position to deposit the fine of ₹25,000/- imposed on him, the sentence
of one year to be undergone in default of payment of fine of ₹25,000/-
may also be reduced.
11. Taking into consideration the submissions made on behalf of
the appellant and the offence proved against the convict/appellant, it
would meet the ends of justice if the sentence of ten years awarded to
the appellant for committing the offence punishable under Section 307
IPC is reduced to five years.
12. Accordingly, the substantive sentence awarded to him under
Section 307 IPC is reduced from ten years to five years. The sentence
of fine of ₹25,000/- is maintained, however the period of sentence to
be undergone by the appellant in default of payment of fine is reduced
from one year to three months.
13. The appeal is allowed only to the extent of modification of
order on sentence to the above extent.
14. TCR be sent back alongwith copy of this order. Copy of this
order be sent to the concerned Jail Superintendent for information.
As prayed, copy of the order be given dasti to learned counsel
for the appellant.
PRATIBHA RANI
(JUDGE)
AUGUST 30, 2017/'st'
