Kanwaljeet Kaur @ Sonia vs.state (Nct of Delhi) - Court Judgment

$~1 * + IN THE HIGH COURT OF DELHI AT NEW DELHI CRL.A. 455/2017 KANWALJEET KAUR @ SONIA ..... Appellant Through Mr. Saleem Ahmed, Ms. Charu Dalal and Mr. A.P. Singh, Advocates versus STATE (NCT OF DELHI) ..... Respondent Through Mr. Rajat Katyal, APP for the State along with SI Pramod Kumar, P.S. Shalimar Bagh. Ms. Aishwarya Rao and Ms. K.B. Hina, Advocates for the complainant. CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE P.S. TEJI ORDER

1307.2017 % Crl.M.(B).841/2017(regular bail) This is an application filed by the appellant seeking suspension of the sentence during the pendency of the appeal. At the outset, Mr. Saleem Ahmed, learned counsel for the appellant points out that the appellant in this case has been in incarceration for a period of more than 13 years. He submits that the trial in this case lasted for more than a decade and the judgment was pronounced in April, 2017. He also submits that the appellant has been falsely implicated in this case as she was demanding a share in the property of her in-laws post the death of her husband, who died at a very young age leaving a one year old daughter. It is contended that after she was falsely implicated, both the daughters of the deceased have sold the properties and deprived her of her share. On the merits of the matter, learned counsel contends that the prosecution has not been able to connect the appellant with the co-convicts, no call details or any other form of evidence has been placed on record. It is contended that neither it is the case of the prosecution that she was present at t he site where the murder took place nor there is any evidence to show that she had any connection with either of the two co-convicts nor any conspiracy has been established. Mr.Saleem also contends that the Trial Court has convicted the appellant on the testimonies of PW-1 Kumari Manju and PW-3 Dr. Anil Nangia, but failed to consider that PW-3 is an interested witness while PW-1 is a planted witness. He submits that, admittedly, PW-3 claims to be present at the site of incident, however, there is no evidence on record to show that he made any attempt to save his in-laws or his wife. Mr. Saleem also contends that as per the case of the prosecution, the appellant along with Nawab Singh had kidnapped PW-3 Dr. Anil Nangia from his clinic on showing of a pistol by Nawab Singh.; on the way, the appellant left the car, thus the only role of the appellant as per the case of the prosecution was kidnapping for which she has been convicted for seven years and she has already served the sentence without an opportunity of hearing the appeal. Learned counsel submits that serious prejudice has already been caused to her on account of a protracted trial, she would not earn any remission and would not be entitled to furlough as well. He further submits that the daughter of the appellant was barely one year of age when the appellant was arrested and at the time of order on sentence, she was 13 years of age. In addition, it is submitted that the appellant has an old aged father to look after, besides she is a widow. Even otherwise, counsel contends that he has a very good case on merits. This application for bail is strongly opposed by the learned counsel for the State and also the counsel for the complainant. It is submitted that property dispute is primarily the genes is of the crime and the double murder was committed on the abetment of this appellant. It is further stated that this appellant had accompanied Nawab Singh, one of the convicts, to the clinic of PW-3 Dr. Anil Nangia, when Nawab Singh pulled out his pistol, Dr. Anil Nangia was kidnapped and taken to the house of the deceased, where Nawab Singh had forced Saudagar Singh to sign documents in favour of this appellant, which would clearly establish the role of this appellant and would show that she was connected with the crime. We have heard the learned counsel for the parties and considered their rival submissions. The appellant has been in incarceration for a period of more than 13 years. We also find that the charge in this case was framed on four occasions. The order on sentence would show that this appellant has been convicted under Section 365 read with Section 34 IPC for which she has been sentenced for imprisonment of 07 years, under Section 387 read with 109 IPC for which she has been sentenced to 07 years, under Section 307 read with Section 111 IPC for which she has been sentenced to imprisonment for 10 years, and under Section 302 read with Section 111 IPC for which she has been convicted for life. The appellant has already undergone the sentence awarded for the offences committed by her, barring the last, during the pendency of the trial. We may notice the following observations of Kashmira Singh v. State of Punjab, AIR1977SC2147 “2. The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that, once a person has been found guilty and sentenced to life imprisonment-, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to unjustified?. Would it be just at all for the Court to tell a person:

"We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?." What confidence would such administration of justice inspire in the mind of the public ?. It may quite conceivably happen and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal?. Would it not be an affront to his sense of justice?. Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it?. It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.” (Emphasis Supplied) The Apex Court in Smt.Akhtari Bi v. State of M.P., AIR2001Supreme Court 1528 stated that when the appeal is not disposed of within the period of five years excluding delay attributable to the appellant, the appellant becomes entitled to bail unless there are special circumstances. Having regard to the submissions made, the delay in concluding the trial, the fact that the appellant has been in incarceration for a period of more than 13 years, she has served the sentences awarded under Section 365/34, Section
IPC and Section
IPC and the fact that the appeal is unlikely to be taken up for hearing anytime soon as the paper book is yet to be prepared (although directions were issued on the first date of hearing) and one of the co- convicts is yet to file an appeal, the sentence of the appellant is suspended during the pendency of the appeal on her furnishing a personal bond in the sum of Rs.20,000/- with one surety in the like amount to the satisfaction of the Trial Court. The appellant will not contact the family members of the deceased; will not leave the National Capital Territory of Delhi; will provide one mobile phone number of her close relative to the Trial Court as also the SHO. In case of any change of address, she shall inform the same to the SHO and the Trial Court. The application stands disposed of. CRL.A. 455/2017 Leave is granted to the parties to mention this matter after the paper book is prepared. Dasti. G.S.SISTANI, J JULY13 2017 // pst / CRL.A. 455/2017 P.S. TEJI, J55