Noor @ Noor Mohd. vs State
2017 Latest Caselaw 2866 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment dated:2nd June, 2017
+     CRL.A. 17/2016
      NOOR @ NOOR MOHD.                               ..... Appellant
                  Through:            Mr.Ankur Sood, Adv. with Ms.Romila
                                      Mandal and Mr.Uday Bedi, Advs.
                                      Mr.Amar Nath, amicus curiae with
                                      Mr.Love Deep Gaur, Adv.
                          versus

      STATE                                            ..... Respondent

                          Through:    Ms.Kusum Dhalla, APP for State
                                      SI Amit Kumar, PS-Farsh Bazar

CORAM:
    HON'BLE MR. JUSTICE I.S.MEHTA

I.S.MEHTA, J (ORAL)

1. The instant appeal is arising out of the judgment dated 26.09.2015 and order on sentence dated 28.09.2015 wherein the appellant- Noor @ Noor Mohd. was convicted for committing offences punishable under Sections 392/506/34 IPC. Aggrieved by the said judgment and order on sentence, the appellant has preferred the instant appeal.

2. Briefly facts stated are that on receiving information vide DD No.27-A, ASI Ami Chand reached at the spot at Gali No.14, Viashwas Nagar, pertaining to chain snatching and inquired about the same and recorded the statement of the complainant on 16.08.2013 and registered FIR No.344/2013, under Sections 392/397/34 IPC. During the course of investigation, the appellant- Noor @ Noor Mohd. was arrested on 18.08.2013 and recovery of Rs.2,000/- was got effected from his house. Co-accused/convict Pankaj was also arrested who got recovered

Rs.1200/- from his house on 31.08.2013. Co-accused/convict Bhim was also arrested on 08.09.2013 and weapon of offence used in the robbery was recovered from his possession. After completion of the investigation, charge sheet was filed under Section 392/397/411/34 IPC. After filing the charge sheet, prosecution examined 6 witnesses in order to prove its case. In their defence, the convict persons also examined 3 three witnesses. Upon appreciation of evidence and after considering the contentions of the appellant and his associates, they all were convicted by the impugned judgment. By an order dated 28.09.2015, the appellant was awarded Rigorous Imprisonment for five years with fine of Rs.5,000/-, in default of payment of fine he shall undergo six months simple imprisonment. He was also awarded Rigorous Imprisonment for one year under Section 506/34 IPC. All the sentences were to operate concurrently. Being aggrieved and dissatisfied, the appellant has filed the instant appeal.

3. During the course of arguments, on instructions, the appellant's counsel stated that the appellant has opted not to challenge the findings of the Trial Court on conviction. He, however, prayed to modify the sentence order and to release the appellant for the period already undergone by him. Learned Additional Public Prosecutor has no objection to consider the mitigating circumstances.

4. Since the appellant has given up challenge to the findings on conviction and there is ample evidence to base conviction, the conviction for the aforesaid offences stands affirmed.

5. On the quantum of sentence, learned counsel for the appellant and learned amicus curiae have argued that the appellant is 32 years old and he has to maintain his old aged parents, his wife and two children. It is further submitted that the appellant is the sole bread earner of the family and the sentence given by the Court below is too harsh. It is submitted that the appellant was awarded

imprisonment for 5 years and he has already undergone more than 4 years imprisonment. It is further submitted that a fine of Rs.5,000/- has been imposed on the convict which he could not pay as he is very poor and prays that the fine imposed on the convict be waived off.

6. In B. G. Goswami vs Delhi Administration; 1973 AIR 1457, 1974 SCR (1) 222 the Hon'ble Supreme Court while dealing with the quantum on sentence has observed that:

"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act. which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but

increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."

7. Nominal roll dated 31.05.2017 reflects that the appellant has already undergone three years, nine months and 13 days incarceration as on 31.05.2017. The unexpired portion of sentence was only eleven months and 04 days on that date.

8. Considering the facts and circumstances of the case and the substantive period already undergone by him in this case and the fact that the appellant is a young man of 32 years who is the sole bread earner of his family and has to support his dependants i.e. his children, wife and parents and he has realized the mistake committed by him and is remorseful of his act to the society to which he belongs and now he wants to transform himself as well as to the society to a right direction, I am of the considered opinion that he should be given a chance to reform himself and his better contribution in the society to which he belongs to. Consequently, the sentence order is modified and the period already undergone by him in this case i.e. three years, nine months and 13 days is taken as his substantive sentence under Section 392/506/34 IPC including for the sentence for default in non payment of fine of Rs.5,000/- too.

9. The appeal stands disposed of in the above terms. All pending application(s) also stand disposed of. Trial Court record be sent back forthwith along with the copy of the judgment. One copy of the judgment be also sent to the Jail Superintendent for necessary compliance for release of appellant.

I.S. MEHTA (JUDGE) JUNE 02, 2017 'km'