Delhi High Court
Md. Mister vs State on 12 April, 2019
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12.04.2019
+ CRL.REV.P. 346/2019 & CRL.M.A 6173/2019
MD. MISTER ..... Petitioner
versus
STATE ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr.Dhruv Gupta, DHCLSC Advocate with Mr.
Shaishav Manu, Advocate
For the Respondent : Ms. Meenakshi Dahiya, APP
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. Petitioner impugns the judgment dated 20.09.2018 whereby the
appellate court has dismissed the appeal of the petitioner impugning the
judgment of conviction dated 08.06.2018 and order on sentence dated
21.06.2018 whereby petitioner has been convicted for the offence under
Section 457 (Part-II)/34 of IPC as well as Sections 380/511/34 of IPC.
Petitioner has been sentenced to undergo the rigorous imprisonment for a
period of two years and to pay a fine of Rs.10,000/- for the offence under
Section 457(Part-II)/34 of IPC and to rigorous imprisonment for a period of
one year and fine of Rs.10,000/- for the offence punishable under Sections
380/511/34 of IPC and in default of payment of fine, to undergo simple
imprisonment of one month each.
2. Petitioner impugns the above order to the limited extent of reducing
the sentence to the period already undergone. It is submitted by learned
counsel for petitioner that the co-accused, who had been ascribed an
identical role and awarded identical punishment, has been given the benefit
of further reduction of sentence by the appellate court by its judgment dated
19.01.2019 and has since been released.
3. Learned counsel for the petitioner submits that as the role ascribed to
both the petitioner and the co-accused is identical and they were identically
punished, petitioner should also be granted the same benefit.
4. Learned counsel for petitioner submits that the petitioner does not
impugn the judgment on conviction, but is restricting his prayer to
reduction of sentence in view of the mitigating circumstances that petitioner
is aged about 27 years of age and is the sole bread-earner of his family and
has minor children and a dependent wife. It is submitted that petitioner was
engaged as a daily wager and the present petition has been filed through
legal aid, as he does not have sufficient means.
5. Nominal Roll of petitioner indicates that petitioner has undergone
one year, five months and three days of sentence as on 08.04.2019 and
earned remission of twenty four days.
6. The case of the prosecution was that a DD Entry was received that
theft was being committed by some persons at a house in front of Liberty
Cinema. On receipt of information, two Head-Constables went to the spot
where they found that another Head-Constable and a Sub-Inspector had
already reached alongwith the complainant/victim. When they entered the
house, they found three persons, who were overpowered. Petitioner is one
of the three. The three were present with the tools for breaking into a house.
They were arrested. Charge-sheet was filed. Prosecution thereafter led its
evidence.
7. Petitioner was apprehended from the spot with tools for breaking
into the house. He was overpowered. The prosecution has also been able to
establish its case beyond reasonable doubt.
8. Petitioner has not impugned the order on conviction. However, on
perusal of the record, I am satisfied that the order on conviction does not
warrant any interference and does not suffer from any infirmity.
9. The petitioner is aged about 27 years. At the time of the impugned
judgment, he had one child and his wife was expecting. He was working as
a daily wager. He is the sole bread-earner of the family and his wife and
children are dependent on him for their very subsistence. As per the
Nominal Roll, he has undergone the sentence of one year, five months and
three days out of the total period of sentence of two years and in default,
sentence of one month each.
10. Learned counsel for petitioner submits that petitioner does not have
the wherewithal to pay the fine.
11. Keeping in view the totality of the facts and circumstances and the
mitigating circumstances, while confirming the judgment on conviction, I
am of the view that interest of justice would be served in case the sentence
awarded to petitioner is reduced to the period of one year and four months
for the offence under Section under Section 457(Part-II)/34 of IPC.
12. Accordingly, the sentence awarded to petitioner is reduced to the
period of one year and four months for the offence under Section under
Section 457(Part-II)/34 of IPC.
13. Petitioner has already undergone over one year and six months of
sentence. So, consequentially the petitioner has already undergone the
substantive sentence as well as in default sentence. Accordingly, the
Petitioner be released, if not required in any other case.
14. Petition is disposed of in the above terms.
15. Order Dasti under signatures of the Court Master.
16. Copy of the order be forwarded to the Superintendent of Jail for
compliance.
APRIL 12, 2019 SANJEEV SACHDEVA, J
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