Subhash Yadav v. State NCT of Delhi

1. By way of the present appeal under Section 374 Cr.P.C., the appellant seeks to assail the judgment of conviction dated 27.04.2017 and the order on sentence dated 29.04.2017, passed by the learned Additional Sessions Judge-04, Patiala House Courts, New Delhi, in SC No. 9100/2016, arising out of FIR No. 554/2014, registered at Police Station Naraina, whereby the appellant was convicted for the offences punishable under Sections 354, 354D, 451 and 506 (Part II) IPC.

2. Vide the impugned order on sentence dated 29.04.2017, the appellant was sentenced to undergo rigorous imprisonment for four years with a fine of Rs.1,00,000/- for the offence under Section 354 IPC, in default whereof to undergo simple imprisonment for one month; rigorous imprisonment for two years with a fine of Rs.50,000/- for the offence under Section 354D IPC, in default whereof to undergo simple imprisonment for fifteen days; rigorous imprisonment for two years with a fine of Rs.25,000/- for the offence under Section 451 IPC, in default whereof to undergo simple imprisonment for seven days; and rigorous imprisonment for two years with a fine of Rs.25,000/- for the offence under Section 506 (Part II) IPC, in default whereof to undergo simple imprisonment for seven days. All sentences were directed to run concurrently and benefit under Section 428 Cr.P.C. was extended to the appellant.

3. It is noted that during the pendency of the proceedings, the complainant unfortunately committed suicide, which led to the registration of a separate FIR under Section 306 IPC. Both cases were tried together and were disposed of by a common judgment. While the appellant was convicted in the present case relating to offences under Sections 354, 354D, 451 and 506 (Part II) IPC, he was acquitted of the charge under Section 306 IPC in the connected case. The evidence of the complainant recorded prior to her death was duly considered by the Trial Court while adjudicating the present matter. Admittedly, the State did not challenge the acquittal.

4. The sentence of the appellant was thereafter suspended during the pendency of the appeal and he was released on bail vide order dated 23.10.2017 passed by this Court.

5. Briefly stated, the case of the prosecution was that the appellant had been persistently stalking and harassing the complainant and had unlawfully entered her residence, assaulted her with intent to outrage her modesty, and extended criminal threats. The prosecution alleged that the conduct of the appellant caused serious mental trauma to the victim and amounted to a grave invasion of her dignity and sense of security.

6. During trial, the prosecution examined eight witnesses in support of FIR no. 554/14, including the PW-1 Sugandhi Devi mother of the prosecutrix, Pw- 2 Ct. Jyoti who joined the investigation along with PW-7 and also got the medical examination of the Prosecutrix conducted at DDU hospital upon PW-7’s instructions and PW – 7 SI Veermati,IO of the FIR no. 554/14 P.S Naraina who on 18.11.2014 reached at the prosecutrix’s home and was apprised of the incident by the mother of the prosecutrix.The rest of the witnesses were police and formal witnesses associated with registration of the FIR and other aspects of the investigation.

7. The appellant, in his statement under Section 313 Cr.P.C., denied all the allegations and claimed false implication. In support of his defence, the appellant examined three defence witnesses. The appellant has examined three defence witnesses in these cases i.e. DW-1 Sumit, DW-2 Akash Kumar Dubey and DW-3 Ajit Kumar. DW-1 deposed that the relations between the accused and complainant were consensual and the complainant’s family was also aware of the same.

8. Upon appreciation of the evidence, the learned Trial Court relying upon the consistent testimony of the witnesses and the medical evidence, concluded that the prosecution has been able to prove the charges under Sections 354, Section 451and Section 506 (II) read with Section 354D IPC in FIR 554/14 and therefore convicted the accused for the same.

9. The appellant is present in person and is duly identified by the IO. Learned counsel for the appellant, on instructions, submits that the appellant does not wish to press the appeal on merits and confines his prayer to seeking modification of the sentence to the period already undergone. It is submitted that the appellant belongs to an economically weak background, has dependent family members, namely his wife, mother and two elder brothers, and he works as a truck driver.

10. Learned APP for the State submits on instructions from the IO, that the appellant has no other criminal antecedents or pending cases.

11. As per the Nominal Roll on record, the appellant has undergone a total period of custody of approximately three years. The nominal roll further records that the appellant has no other pending cases, his jail conduct has remained satisfactory, and that he has paid the fine amount.

12. The law with regard to release of the appellant in cases where the convict has undergone more than half of the sentence was laid down by the Supreme Court in Sonadhar v. State of Chhattisgarh[1] the relevant portion of the same is extracted hereinunder: ‘We thus issue the following directions: a)A similar exercise be undertaken by the High Court Legal Services Committee of different High Courts so that convicts represented by legal aid Advocates do not suffer due to delay in hearing of the appeals.

NALSA will circulate this order to the concerned authority and monitor the exercise to be carried on. b)The Delhi High Court Legal Services Committee would take up the cases of those convicts who have undergone more than half the sentence in case of fixed term sentences and examine the feasibility of filing bail applications before the High Court, while in case of 'life sentence' cases, such an exercise may be undertaken where eight years of actual custody has been undergone. c)We are of the view that in fixed term sentence cases, an endeavour be made, at least as a pilot project, in these two High Courts to get in touch with the convicts and find out whether they are willing to accept their infractions and agree to disposal of the appeals on the basis of sentence undergone. d)A similar exercise can be undertaken even in respect of 'life sentence' cases where the sentenced persons are entitled to remission of the remaining sentence i.e., whether they would still like to contest the appeals or the remission of sentence would be acceptable to such of the convicts. Our aforesaid additional directions are based on a premise that at times if a convict has actually done of what he is accused of and he is remorseful, he may be willing to accept his acts and suffer a lesser sentence. We make it clear that the objective is not to compel or extract acceptance from such convicts depriving of the right of appeal.’

13. Upon a careful examination of the material on record, this Court finds no perversity in the appreciation of evidence by the Trial Court insofar as the conviction of the appellant under Sections 354 Section 451 Section 506

(II) read with Section 354D IPC, and the said conviction is accordingly affirmed.