Delhi High Court
Phool Kumar @ Golu vs State (Govt. Of Nct Of Delhi) on 7 June, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment dated: 7th June, 2017
+ CRL.A. 1204/2016
PHOOL KUMAR @ GOLU ..... Appellant
Through: Ms.Puja Shrivastava, Adv.
Mr.Amar Nath, Amicus Curie with
Mr.Love Deep Gaur, Adv.
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Ms.Kusum Dhalla, APP for State
SI Jasmer Singh, P.S. Jahangirpuri
CORAM:
HON'BLE MR. JUSTICE I.S.MEHTA
I.S.MEHTA, J (ORAL)
1. The instant appeal is arising out of the judgment dated 31.08.2016 and
order on sentence dated 22.09.2016, whereby the appellant- Phool Kumar @
Golu was convicted for committing offences punishable under Sections
304(II)/308/34 IPC. Aggrieved by the said judgment and order on sentence, the
appellant has preferred the instant appeal.
2. Briefly facts stated are that on 01.01.2012, information was received in
Police Station-Jahangirpuri about a quarrel vide DD No.76 B. ASI Naresh along
with Ct. Rahul visited the spot for investigation. On reaching the spot, they came
to know that the injured persons have been taken to BJRM hospital. ASI Naresh
collected MLCs of Adil, Javed and Vishal. ASI Naresh recorded the statement
of injured/complainant Vishal. On the basis of said statement, FIR No.03/2012
was registered. After completion of investigation, charge-sheet was filed and the
appellant and his associates were charged for committing various offences. The
prosecution examined 20 witnesses in order to prove its case. 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 22.09.2016, the appellant was awarded Rigorous Imprisonment for seven
years and also a fine of Rs.25,000/- for offence punishable under Section
304(II)/34 IPC and in default of payment of fine to undergo three months
Simple Imprisonment. He was also awarded three years Rigorous Imprisonment
and fine of Rs.10,000/- for offence punishable under Section 308/34 IPC and in
default of payment of fine to undergo one month Simple Imprisonment. 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. She, however, prayed to modify the sentence order and to
release the appellant for the period already undergone by the appellant. 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 a young man of 27 years who is
the sole bread earner of his family and has to support his dependants i.e. parents
and younger brothers & sisters. It is further submitted that the sentence given by
the Court below is too harsh. It is also submitted that the appellant was awarded
imprisonment for 7 years and he has already undergone around 5 years
imprisonment. It is further submitted that a fine of Rs.35,000/- 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 02.06.2017 reflects that the appellant has already
undergone 5 years, 1 month and 15 days incarceration as on 07.02.2017.The
unexpired portion of sentence was 1 year, 8 months and 8 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 27 years and is also the sole bread earner of his family who has to
support his dependants i.e. parents and younger brothers & sister and also the
fact that 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. 5 years, 1 month and 15
days as on 07.02.2017 is taken as his substantive sentence under Sections
304(II)/308/34 IPC including for the sentence for default in non-payment of fine
of Rs.35,000/- 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 07, 2017
'km'
