218 (2015) delhi law times 1 (db) (cn) delhi high court ... vikas yadav filed a response dated 23rd

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  • 218 (2015) DELHI LAW TIMES 1 (DB) (CN) DELHI HIGH COURT

    Gita Mittal & J.R. Midha, JJ. VIKAS YADAV—Appellant

    versus STATE OF U.P.—Respondent

    Crl. A. 910/2008—Decided on 6.2.2015 VISHAL YADAV—Appellant

    versus STATE OF U.P.—Respondent

    Crl. A. 741/2008—Decided on 6.2.2015 STATE—Appellant

    versus VIKAS YADAV & ANR.—Respondents Crl. A. 958/2008—Decided on 6.2.2015

    NILAM KATARA—Appellant versus

    STATE GOVT. OF NCT OF DELHI & ORS.—Respondents Crl. Rev. P. No. 369/2008 and Crl. M.A. Nos. 1168/2012, 1313/2012,

    4073/2012, 13951/2012 and 13952/2012—Decided on 6.2.2015 STATE—Appellant

    versus SUKHDEV YADAV ALIAS PEHLWAN—Respondent

    Crl. A. 1322/2011—Decided on 6.2.2015 SUKHDEV YADAV—Appellant

    versus STATE & ANR.—Respondents

    Crl. A. 145 of 2012—Decided on 6.2.2015 JUDGMENT

    “Sentencing justice is a facet of social justice, even as redemption of a crime-doer is an aspect of restoration of a whole personality. Till the new Code recognized statutorily that punishment required considerations beyond the nature of the crime and circumstances surrounding the crime and provided a second stage for bringing in such additional materials, the Indian Courts had, by and large, assigned an obsolescent backseat to the sophisticated judgment on sentencing. Now this judicial skill has to come of age.” [(1977) 3 SCC 287 (para 19), Mohd. Giasudden v. State of A.P.]

    Gita Mittal, J.—Vikas Yadav and Vishal Yadav were convicted by a judgment dated 28th May, 2008 passed by the learned Additional Sessions Judge for commission of offences under Section 302/364/201 read with Section 34 IPC in SC Case No.78 of 2002 arising out of FIR No.192/02. By an order dated 30th May, 2008, they were sentenced to life imprisonment as

  • well as fine of one lakh each under Sections 302 of the IPC and in default of payment of fine, to undergo simple imprisonment for one year. They were sentenced to rigorous imprisonment for ten years and fine of Rs.50,000/- each for their conviction under Section 364/34 IPC, in default to undergo simple imprisonment for six months and rigorous imprisonment for five years and fine of Rs.10,000/- each under Section 201/34 IPC, in default, simple imprisonment for three months. All sentences were to run concurrently.

    2. By an order dated 6th of July 2011 in SC No.76 of 2008, Sukhdev Yadav @ Pehalwan was also found guilty for commission of the same offences under Sections 302/364/34 and Section 201 of the IPC. Consequently, by an order dated 12th July, 2011, Sukhdev Yadav @ Pehalwan was sentenced to undergo life imprisonment and fine of Rs.10,000/- for commission of the offence under Section 302 IPC, in default to undergo rigorous imprisonment for two years; rigorous imprisonment for seven years and fine of Rs.5,000/-, for commission of the offence under Section 364 IPC, in default rigorous imprisonment for six months; rigorous imprisonment for three years and fine of Rs.5,000/- for his conviction under Section 201 IPC, in default, rigorous imprisonment for six months. All sentences were directed to run concurrently. Legal History

    3. The learned trial judges in the instant case, have not imposed the death sentence which was the maximum sentence prescribed for commission of the offence under Section 302 IPC. In the case of Vikas Yadav and Vishal Yadav, they have been sentenced to life imprisonment and fine of Rs.1,00,000/- has been imposed. In default of payment of fine, simple imprisonment of one year is stipulated. Sukhdev Yadav @ Pehalwan, though has been sentenced to life imprisonment, however fine of merely Rs.10,000/- has been imposed. Furthermore, in default of payment of fine, rigorous imprisonment for two years has been ordered.

    4. For commission of the offences under Section 364 IPC as well, the maximum sentence has not been imposed in both cases. By the order dated 30th May, 2008, passed in the case of Vikas Yadav and Vishal Yadav, they have not been given the maximum sentence of imprisonment of life but have been sentenced to imprisonment for a term of ten years and fine of Rs.50,000/- each. In default of payment, each of them is required to undergo simple imprisonment of six months. For commission of the same offence under Section 364 IPC, Sukhdev Yadav @ Pehalwan has been sentenced by the order dated 12th July, 2011 to undergo rigorous imprisonment of merely seven years and fine of Rs.5,000/-. In default of payment of fine, Sukhdev Yadav is required to undergo six months rigorous imprisonment.

    5. So far as the commission of the offence under Section 201 of the IPC is concerned, Vikas Yadav & Vishal Yadav have been sentenced to undergo rigorous imprisonment for five years and fine of Rs.10,000/-. In default, they are required to undergo three months simple imprisonment. For the same offence, Sukhdev Yadav has been sentenced to undergo rigorous imprisonment of only three years and fine of Rs.5,000/-. In default of

  • payment, he is required to undergo rigorous imprisonment for six months.

    6. During the pendency of Crl.App.Nos.741/2008 and 910/2008, assailing the convictions and sentences by Vikas Yadav and Vishal Yadav respectively, the State filed Crl.A.No.958/2008 entitled State v. Vikas and Vishal Yadav under Section 377 of the Cr.P.C. seeking enhancement of the sentence imposed on them by the learned Additional Sessions Judge by the order dated 30th May, 2008.

    7. Sukhdev Yadav filed Crl.App.No.145/2012 assailing his conviction and sentence. The State also filed Crl.A.No.1322/2011, State v. Sukhdev Pehalwan seeking enhancement of the sentence imposed by the order dated 12th July, 2011, pursuant to conviction.

    8. Additionally, the complainant – Nilam Katara (mother of deceased Nitish Katara) has also filed Crl.Rev.P.No.369/2008 praying for enhancement of the sentences on Vikas Yadav and Vishal Yadav which has been directed to be heard along with the other cases.

    9. In view of the pendency of the appeals before the Division Bench, the Registrar (Judicial) directed that the revision petition be heard along with the appeals which was also consequently placed before us. The appeals filed by the prisoners as well as the State appeal and the complainant‘s revision were all being taken up together. Inasmuch the appeals against the orders dated 28th May, 2008 and 6th July, 2011 were pending, it was directed on 24th May, 2013 that the State appeal and the criminal revision be listed after the pronouncement of the judgment on the appeals against the conviction.

    10. Thus Vikas Yadav, Vishal Yadav and Sukhdev Yadav are appellants in Crl.App.Nos. 910/2008, 741/2008 and 145/2012 and are respondents in Crl.App.Nos.958/2008 and 1322/2011 and Crl.Rev.P.No.369/2008. We propose to refer to the convict persons as defendants in this judgment.

    11. It is noteworthy that in the two State appeals as well as the revision petition filed by the complainant, the prayer is for enhancement of the sentence of life imprisonment handed out to imposition of the death penalty on the defendants.

    12. This court has upheld the conviction of Vikas Yadav, Vishal Yadav and Sukhdev Yadav by the common judgment dated 2nd April, 2014 whereby the two appeals of Vikas Yadav and Vishal Yadav assailing their conviction by the judgment dated 28th May, 2008 as well as the third appeal of Sukhdev Yadav assailing his conviction by the judgment dated 6th July, 2011 in the two cases arising out of FIR No.192/02 registered by P.S. Kavi Nagar, Ghaziabad were dismissed. It is noteworthy that protracted arguments were heard on the legality and validity of these two judgments alone and judgment was reserved thereon which was pronounced on 2nd April, 2014.

    As such the question of the validity of the orders on sentence which came to be imposed by the order dated 30th May, 2008 (in the case of Vikas Yadav and Vishal Yadav) and 12th July, 2011 (in the case of Sukhdev

  • Pehalwan) was kept aside in their appeals for consideration by this court with the State appeals.

    13. So far as Crl.App.No.1322/2011 is concerned, seeking enhancement of the sentence imposed on Sukhdev Yadav @ Pehalwan, on the 22nd of March 2012, on a statement by his counsel that they contest the appeal on merits and do not oppose the application by the State seeking condonation of delay, the delay was condoned and the appeal was admitted for hearing. Sukhdev Yadav @ Pehalwan has been represented on all dates by counsel whose submissions in this appeal are noted hereafter. The appeal was listed on all dates with the other appeals and the criminal revision.

    14. On 16th May, 2014, in Crl.A.Nos.958/2008 and 1322/2011, notice was issued by this court under Section 377(3) of the Cr.P.C. for enhancement of sentences. Opportunity has been afforded to the defendants to show cause. Notices stand accepted in court by counsel on behalf of the defendants. The defendants Vikas Yadav, Vishal Yadav as well as Sukhdev Yadav have been duly represented by counsel who have appeared and opposed the enhancement on every date of hearing before this court.

    15. In the proceedings on 16th May, 2014, Mr. Sumeet Verma, learned counsel pointed out that formal notice had not been issued in Crl.Rev.P.No.369/2008 which was being listed on all dates along with the above criminal appeals. Counsels had been appearing in this revision as well. However, on the 16th May, 2014, to avoid any kind of technical objection, formal notice was issued to the defendants - Vikas Yadav and Vishal Yadav to show cause against enhancement of the sentences which were imposed upon them by the learned Additi

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