Delhi High Court
Badal vs State Nct Of Delhi on 16 May, 2017
77$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 30/2017
% Date of Judgment: 16th May, 2017
BADAL ..... Appellant
Through: Mr.K.P. Mavi, Adv. with Mr. B.P.
Mishra, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr.Rajat Katyal, APP for the State.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE REKHA PALLI
G.S.SISTANI, J. (ORAL)
1. Challenge in this appeal is to the judgment dated 09.11.2016 by
which the appellant has been held guilty for an offence under Section 25
of the Arms Act, 1959 and the order on sentence dated 21.11.2016 by
which the appellant has been sentenced to rigorous imprisonment for
three years with fine of Rs.25,000/- and in the event of default in payment
of fine, rigorous imprisonment for one year.
2. We note at this stage that a co-convict has been convicted by the
same judgment under Section 302 of the Indian Penal Code, 1860 („IPC‟)
and under Sections 25 and 27 of the Arms Act. The appeal filed by the
co-convict is also pending.
3. Mr.Mavi, learned counsel for the appellant, at the outset, submits
that the appellant has already undergone imprisonment for a period of
more than two years and nine months and the remaining period of
sentence is approximately two months and eleven days. He submits on
instructions that he does not challenge the order on conviction but he
prays that the sentence may be modified to the period already undergone.
4. The case of the prosecution is that on 01.06.2007 at 6:15 PM,
Ashok, Suman, Badal, Amit and Yogender @ Chhotu (since deceased) in
furtherance of their criminal conspiracy, committed murder of one, Sarita
who was in the family way and her son Master Abhishek aged one and a
half years.
5. Statement of Rani (PW-1) who was present at the scene of crime,
was recorded by SI Vikram Singh (PW-12). An FIR was registered under
Section 302/34 IPC. In order to bring home the guilt of the accused,
twenty three witnesses were examined by the prosecution. No evidence
was led by the defence.
6. Mr.Mavi, learned counsel submits that the appellant has been
falsely implicated in this case. The judgment of the Trial Court is based
on surmises and conjectures. The Trial Court lost track of the fact that
the ballistic report conclusively shows that the pistol allegedly recovered
on the basis of a disclosure statement of the appellant, was not used in the
commission of the crime. Additionally, any recovery alleged to have
been made at the instance of this appellant, cannot be relied upon as Rani
(PW-1) did not support the case of the prosecution with regard to the
recovery of the weapon.
7. It has also been contended before us that the Trial Court committed
a serious error by convicting the appellant under Section 25 of the Arms
Act solely on the basis that the appellant was unable to give any
explanation for possession of a country made pistol. Counsel contends
that a specific defence was raised by this appellant that he was lifted from
his house and signatures were obtained on blank pieces of papers. It is
also the case of the appellant that the pistol was planted on him.
8. Learned counsel for the State submits that the Trial Court has
carefully analysed the testimony of all the witnesses and rightly reached a
conclusion of guilt under Section 25 of the Arms Act with respect to the
appellant herein. He submits that there is no infirmity in the judgment
and order on sentence passed by the trial court against the appellant by
which he has been convicted and sentenced for imprisonment for three
years with fine of Rs.25,000/-.
9. We have heard learned counsel for the parties and considered their
rival submissions.
10. The appellant had been arrested on 25.08.2007 and his disclosure
statement (Ex.PW12/P) was recorded by Ins.Ramesh Dahiya (PW-18).
The appellant had disclosed that he had kept a country-made pistol and
two live cartridges in a polythene in a pit near the bushes inside the jungle
near Zero pusta on the way of Milk gaon and he can get it recovered
therefrom. Pursuant thereto, the appellant led Ins.Ramesh Dahiya (PW-
18) to the area and got recovered one 12 bore country made pistol
(Ex.P14) and two live cartridges (Ex.P15). SI Vikram Singh (PW-12) has
also deposed of the recovery at the instance of the appellant. Since the
ballistics report (Ex.PW13/B) could not link the pistol to the pellets
recovered from the dead body of the deceased Abhishek, the appellant
could not be linked with the primary crime. However, the Trial Court
found no explanation forthcoming in respect of the conscious possession
of the country made pistol (Ex.P14) and two live cartridges (Ex.P15) and
convicted the appellant under Section 25 of the Arms Act.
11. We also find that the Trial Court has carefully analysed the entire
evidence and rightly reached the conclusion of guilt with respect to the
appellant herein.
12. We have also carefully considered the submissions made by
learned counsel for the appellant with respect to the modification of the
order on sentence to the period already undergone.
13. The appellant has only been convicted under Section 25 of the
Arms Act; more particularly sub-section (1B), which reads as under:
"Section 25 - Punishment for certain offences
...
(1B) Whoever--
(a) acquires, has in his possession or carries any
firearm or ammunition in contravention of section 3;or
(b) acquires, has in his possession of carries in any
place specified by notification under section 4 any arms
of such class or description as has been specified in that
notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear
the name of the maker, manufacturer's number or other
identification mark stamped or otherwise shown thereon
as required by sub-section (2) of section 8 or does any
act in contravention of sub-section (1) of that section;
or
(d) being a person to whom sub-clause (ii) or sub-
clause (iii) of clause (a) of sub-section (iii) of clause (a)
of sub-section (1) of section 9 applies, acquires, has in
his possession or carries any firearm or ammunition in
contravention of that section;
(e) sells or transfers, or converts, repairs, tests or
proves any firearm or ammunition in contravention of
clause (b) of sub-section (1) of section 9; or
(f) brings into, or take out of, India, any arm or
ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention
of section 12; or
(h) fails to deposit arms or ammunition as required by
sub-section (2) of section 3, or sub-section (1) of section
21;
(i) being a manufacturer of, or dealer in, arms or
ammunition, fails, on being required to do so by rules
made under section 44, to maintain a record or account
or to make therein all such entries as are required by
such rules or intentionally makes a false entry therein
or prevents or obstructs the inspection of such record or
account of the making of copies of entries there from or
prevents or obstructs the entry into any premises or
other place where arms or ammunition are or is
manufactured or kept or intentionally fails to exhibit or
conceals such arms or ammunition or refuses to point
out where the same are or is manufactured or kept;
shall be punishable with imprisonment for a term which
shall not be less than one year but which may extend to
three years and shall also be liable to fine;
Provided that the Court may for any adequate and special
reason to be recorded in the judgment impose a sentence of
imprisonment for a term of less than one year."
(Emphasis Supplied)
14. The appellant has been convicted under Section 25 (1B) (a) for
possessing the country made pistol (Ex.P14) and two live cartridges
(Ex.P15). We may note that the provision provides for judicial discretion
in the matter of sentencing as a minimum sentence of one year is
provided and maximum of three years. Further, as per the proviso, the
court may for any adequate and special reasons to be recorded in the
judgment, impose a sentence of imprisonment for a term of less than one
year.
15. It is clear that the Trial Court has awarded the harshest punishment
possible under the provision and the only reason in the order on sentence
dated 21.11.2016 is that the appellant was involved in three cases in the
jurisdiction of Bulandshahar Court and two of them relate to Section 302
IPC.
16. It is settled law that sentencing in a criminal case after the
establishment of guilt is not something which should be done in a
mechanical manner and the discretion is to be exercised in a sound
manner while balancing the aggravating and mitigating circumstances of
a case.
[See Shailesh Jasvantbhai v. State of Gujarat, (2006) 2 SCC 359
(paragraph 7 to 13) and Nandan v. State, MANU/DE/2154/2015
(paragraph 12 and 21)]
17. The question before us is whether the sole aggravating factor
mentioned in paragraph 15 aforegoing could warrant imposing the
harshest punishment under law upon the appellant? We think not. The
punishment imposed is clearly excessive and deserves to be reduced.
18. Further, having regard to the fact that the appellant has already
undergone incarceration for a period of two years seven months and
fifteen days plus remission of one month and twenty four days and the
unexpired portion of his sentence is barely two months, we are inclined to
agree with the submission of learned counsel for the appellant.
19. Accordingly, we reduce the sentence of the appellant to the period
already undergone which is more than two years nine months. The order
with regard to the fine remains the same. The appellant shall be released
forthwith, if not required in any other case.
20. The appeal is disposed of in the above terms.
Crl.M.B. 416/2017
21. This is an application seeking suspension of sentence on behalf of
the appellant. In view of the order passed in the appeal, no further orders
are required to be passed. The application stands disposed of.
G.S.SISTANI, J.
REKHA PALLI, J.
MAY 16, 2017
// /aa
