Kamal v. The State of the NCT of Delhi

1. This is an appeal filed by the appellant with the help of Legal Aid Counsel against the judgment and the order of sentence dated 21.11.2009 and 25.11.2009 respectively sentencing the appellant to imprisonment of three years and a fine of Rs.1,000/- for an offence under Section 25 of the Arms Act and in default of payment of fine he has been directed to further undergo 15 days imprisonment.

2. It has been observed that the appellant shall be given the benefit of Section 428 Cr.P.C. Although, the present appeal has been filed by the appellant challenging the merits of the case, however, during the course of his oral submissions, the learned counsel for the appellant has contended since the appellant has already undergone a substantial portion of sentence therefore, she is not challenging the judgment dated 21.11.2009 on merits and is confining her submissions only to the question of sentence. It has been urged by her is 2011:DHC:2860 that the appellant having been found guilty for an offence under Section 25 of the Arms Act has been sentenced to RI of three years and a fine of Rs.1,000/- and the said sentence may be reduced to the period already undergone. It is further stated that the appellant has already undergone a sentence of two years and six months approximately.

3. The learned APP has not contested the submission of the learned counsel for the appellant.

4. I have heard the learned counsel for the parties and have also perused the record.

5. The appellant was charged for an offence under Section 399/402 IPC read with section 25 of the Arms Act. The allegations against the appellant was that he along with coaccused Zakir, Kamal, Saleem, Mohd. Mahboob and Montu had planned to commit dacoity. It is alleged that on a secret information having been received by the police a raid was conducted and the appellant and the other co-accused were arrested. So far as the appellant is concerned, a handmade pistol was recovered from him. After the investigation a charge sheet was filed and the prosecution examined as many as 11 witnesses in support of its contention. The statements of the accused persons were recorded, however, none of the accused persons including the appellant herein adduced any defence.

6. The learned Trial Judge on the basis of the submissions made before him sentenced the appellant to imprisonment of three years and a fine of Rs.1,000/- under Section 25 of the Arms Act for being in possession of a fire arm. The learned counsel for the appellant has now contended that the appellant has already undergone two years and six months sentence approximately, and therefore, the appellant being of young age, the sentence of three years may be reduced to the period already undergone by him in jail. So far as the fine of Rs.1,000/- is concerned, it has not been stated as to whether the fine has been paid or not.

7. Be that as it may, I have considered the submissions made by the learned counsel for the appellant. There is no dispute about the fact that the appellant according to the nominal roll, he has already undergone two years and six months sentence approximately. The balance sentence of six months is still required to be served by him. It is also shown in the nominal roll that the appellant has been involved in as many as seven cases and all of them are of robbery under Section 395 and 397 IPC. The details of all the cases are absent except two cases which are pending in the state of M. P. and U.P. In one of the case, the appellant has been sentenced to RI of seven years and a fine of Rs.5,000/- and in default of payment of fine, he is required to undergo RI of 14 months.

8. No doubt, that the nominal roll index which has been sent by the Superintendent, Central Jail, Delhi does not give a happy picture about the past credentials of the appellant, but nevertheless the opinion of the Court should not get clouded and biased by the past conviction or the number of cases which are pending against him. Past conviction may be the ground for sending convict to enhanced punishment but in the absence of this charge of past conviction, it will not be proper to get the past conviction influenced the present finding. The appellant facing other charges, in other Courts that should not be a ground in itself to deny the benefit of reduction of sentence to the appellant especially once the prosecution has chosen not to cite the previous conviction for enhancement of punishment. Admittedly, as on date the appellant has already undergone substantial portion of the sentence i.e. two years and six months approximately. I, therefore, feel that even if the appellant is to undergo complete sentence of three years, it is not going to make any substantial change in the behaviour or on the contrary showing of a small reduction, the period of sentence may have a positive impact on him away from the path of criminality.

9. For these reasons, I am inclined to accept the contention of the learned counsel for the appellant and to reduce the sentence of the appellant from a period of three years to a substantive period already undergone by him in jail. However, the imposition of fine stand as it is and in case the fine has not been paid, the appellant shall be further sentenced to 15 days in default thereof. Needless to say after undergoing the sentence, the appellant may be released forthwith provided that he is not involved or wanted in any other case in Delhi.

10. With these directions, the appeal stands allowed partially. V.K. SHALI, J. MAY 20, 2011 KP