Delhi District Court
State vs . Jitender @ Kalla on 20 March, 2010
Page 1 of 16
IN THE COURT OF Dr. KAMINI LAU: ASJ (NW)-II:
ROHINI: DELHI
SC No. 1136/09
State Vs. Jitender @ Kalla
S/o Sh. Samay Singh
R/o WP-444,
Village Wazirpur,
Ashok Vihar, Delhi
FIR No. 68/1999
PS Mukherjee Nagar
U/S. 120-B/ 302 IPC
Date of Conviction: 06.03.2010
Date of Sentence: 20.3.2010
ORDER ON SENTENCE:
The convict before this court namely Jitender @
Kalla is a young man of 36 years of age, involved in killing of
one Kimti Lal Nayyar the father of the star witness to the killing
of one Anil Badana a student union leader of Satyawati College
on the night of 10.3.1999. The reason for the killing is stated to
be a history of Student Union rivalry and animosity between
Anil Badana, the President of a student Union of Satyawati
College and the present convict Jitender @ Kalla who was an
accused in case FIR No. 125/96 PS Model Town under
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar
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Section 279/337/307 IPC & 25/27/54/59 Arms Act in which
case Anil Badana had been injured. On the date of incident i.e.
10.3.1999 accused Jitender @ Kalla had shot at Anil Badana in
full public view at a marriage reception and while fleeing from
the spot, had fired indiscriminately at the persons chasing him
in which process he also injured one Madan Lal on which an
FIR bearing no.67/1999 PS Keshav Puram was registered in
which case the convict Jitender @ Kalla has already been
sentenced to Rigorous Imprisonment for life for an actual
period of 30 years with fine of Rs.3 lacs for the offence under
Section 302 IPC with direction that he shall not be granted any
remission till he is actually undergo imprisonment for 30 years.
In the said case he has also been sentenced to Rigorous
Imprisonment for 10 years and fine of Rs.2 lacs for the offence
under Section 307 IPC.
The victim Kimti Lal Nayyar was the father of star
eye witness to the killing of Anil Badana which had taken place
about 1-1½ hours prior to the incident in the present case
wherein eye witness Sumit Nayyar had called the police at 100
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar
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number. Sh. Kimti Lal Nayyar had been murdered in cold-
blood without any provocation. The things did not end there.
While the convict Jitender @ Kalla was on remand, he escaped
from custody and was arrested after a period of 14 days on
which FIR No.379/04 PS Defence Colony and FIR bearing
No.314/04 PS R.M.D. were registered. During the trial of the
present case various witnesses have been threatened by the
brother/ relatives of the convict and in this regard FIR
No.315/2000 PS Ashok Vihar and FIR No.692/99 PS Ashok
Vihar were registered. The Ld. Special PP has also placed on
record the list of involvement of the convict Jitender @ Kalla
which are as under:
S. FIR No. Date Section of Law Name of
No. Police
Station
1 153/89 20.5.89 324/307/326 IPC Ashok Vihar
2 296/95 19.5.95 451/427/323/34 IPC Ashok Vihar
3 125/96 09/03/96 279/337/307 IPC & Model Town
25/27/54/59 Arms Act
4 67/99 10/03/99 302/336 IPC Keshav
Puram
5 83/90 10/03/90 324/34 IPC Ashok Vihar
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar
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6 379/04 15.7.04 223/225/328/216/120B Defense
/ 34 IPC Colony
7 314/04 09/08/04 186/ 353/307/34 IPC & R.M.D.
25/27/54/59 Arms Act
8 166/04 06/12/04 506 IPC Kundali
(Haryana)
9 304/04 12/12/04 386/387/120-B IPC Civil Line
Sonepat
It is in the above background that the prosecution is
demanding Capital Punishment against the accused Jitender @
Kalla.
The prosecution has placed its reliance on the
judgments of Bachan Singh Vs. State of Punjab reported in
1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of
Punjab reported in 1983 SCC (Crl.) 681. The Ld. Special
Prosecutor has also placed its reliance on the case of Shivaji
Vs. State of Maharastra reported in 2008 (4) AD (CR.) SC
665.
Ld. Counsel appearing on behalf of the convict has
on the other hand vehemently argued that the convict is a young
man and there is nothing on record to show that he is a menace
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar
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to the society since all the FIRs registered against the convict
are the outcome of the personal animosity of the convict with
the complainant. It is argued that the case in hand does not fall
within the category Rarest of Rare Case and therefore, under
these circumstances, it will be inappropriate to impose Capital
Punishment upon him.
I have considered the submissions made before me.
Before proceeding further, it is necessary to analyze the law as
it exist on today in this regard. At the outset, I may state that
there can be no dispute as to the applicability of the various
principles as laid down by Hon'ble Supreme Court of India in
the aforesaid two cases viz Machhi Singh (Supra) and Bachan
Singh (Supra) which are required to be kept in mind before
awarding a death sentence in any given case. It was observed
by the Hon'ble Apex Court that death penalty would be suitable
punishment where the collective conscious of the community is
so shocked that it will expect the holder of the judicial power
center to inflict death penalty.
1.When the murder is committed in an extremely, brutal, St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 6 of 16 grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
2.When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
3.When murder of a member of Scheduled Caste.................
4.When the crime is enormous in proportion.......................
5.When the victim of murder is an innocent child, or helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.
In the case of Shivaji Vs. State of Maharashtra (Supra) the Hon'ble Apex Court considered as to whether or not circumstantial based conviction should be taken to be the mitigating factor and had observed that the plea that in case of a St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 7 of 16 circumstantial evidence, death should not be awarded, is without any logic. It was also observed that if the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, which forms the foundation for conviction, that have nothing to do with the question of sentence as has been observed in various cases while awarding death sentence. The Hon'ble Court was of the view that to treat circumstantial evidence as mitigating circumstances would amount to consideration of an irrelevant aspect and in a case which falls in the Rarest of Rare category death sentence should be awarded.
However, the Hon'ble Apex Court in the case of Swami Shradhanand Vs. State of Karnataka reported in 2008 (13) SCC 767 considered an alternative option and substituted the death penalty with life imprisonment with the directions that the convict must not be released for the rest of his life.
The question now before this court is whether a punishment lesser than death would be wholly inadequate or St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 8 of 16 whether the alternative option as proposed in the case of Swami Shradhanand Vs. State of Karnatka reported in 2008 (13) SCC 767 and Shree Gopal @ Mani Gopal Vs. State Crl. Appeal No. 528/09 decided on 31.8.2009 would be adequate.
The latest decision in the case of the Hon'ble Apex Court pertaining to the imposition of death sentence in the case Santosh Kumar Satish Bhushan Bariyar Vs. State of Maharastra decided on 13.5.2009 reported in JT 2009 (7) SC 249 the Hon'ble Court has highlighted the important facet pertaining to the sentencing procedure being the consideration of alternative options. Discussing the nature and the content of the Rarest of Rare dictum, the Hon'ble Apex Court observed that a real and abiding concerned for the dignity of human life postulates resistance to taking a life through instrumentality of law. That ought not to be done, save in the rarest of rare cases, where the alternative option is unquestionably foreclosed. It was observed that imprisonment for life as penalty entails, is that the accused must remain in prison till his life i.e would never be set free from jail. The executive, St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 9 of 16 however, has the power of remission under Section 433 Cr.P.C which is subject to the restriction imposed by section 433-A Cr.P.C as per which a person sentenced to imprisonment for life or one whose sentence of death has been commuted to imprisonment for life cannot be released from prison unless he/she has served at least 14 years of imprisonment.
The alternative option considered by the Court was to pass a direction that the accused who has been held guilty would not be released from prison till a sentence more than 14 year imprisonment has been suffered by the accused who has been sentenced to undergo imprisonment for life.
Hon'ble Mr. Justice Pradeep Nandrajog in his decision as rendered in Shree Gopal @ Mani Gopal (Supra) in a case pertaining to the killing of an eye witness and injuring of his security officer in a shoot out by the accused in full public view, examined this facet pertaining to the sentencing procedure i.e of consideration of alternative options while referring to the decision of Hon'ble Supreme Court of India as rendered in the case Santosh Kumar Satishbhushan Bariyar St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 10 of 16 Vs. State of Maharashtra, JT 2009 (7) SC 249. Hon'ble Mr. Justice Pradeep Nandrajog also considered the various alternatives available to him in the light of Section 433 Cr.P.C. and Section 433A Cr.P.C. regarding the meaning of the sentence for imprisonment for life and the power of the executive to grant remission but, not before a period of 14 years of imprisonment. He also referred to various other decisions of Hon'ble Supreme Court of India while classifying the sentence of imprisonment in two categories i.e the ordinary category whereby the court leaves the exercise of executive power at the discretion of the executive, to be so exercised after 14 years of imprisonment and grant remission; and a higher category, where the Court, in a Rare Case, but not the Rarest of the Rare, would clip the said benefit being extended to the convict by directing that the convict shall undergo an actual sentence for a higher period or even for the remainder of his life. Such kind of cases can be put in the category of Rare Cases with appropriate direction of not being entitled to the benefit of remission till a fixed term of imprisonment is undergone. Some of the St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 11 of 16 decisions, noted in this regard by the Hon'ble Judge were Swami Shraddhanand Vs. State of Karnataka reported in AIR 2007 (SC) 2531 in paras 60 to 63 of the said decision i.e the decisions reported as Shri Bhagwan Vs. State of Rajasthan reported in 2001 (6) SCC 296, Parkash Dhawal Khairnar (Patil) Vs. State of Maharashtra reported in 2002 (2) SCC 35, Ram Anoop Singh Vs. State of Bihar reported in 2002 (6) SCC 686 and Mohd. Munna Vs. Union of India reported in 2005 (7) SCC 417. The convict in the said case was thus sentenced to imprisonment for life with a direction that he will not be considered for being grant of remission till he undergoes an actual sentence of 20 years.
It may be noted that the victim in the present case was none else but the father of an eye witness to the killing of Anil Badana. By threatening and killing witnesses, the eyes and ears of a court are under attack and the stream of justice gets polluted (Shree Gopal Vs. State (Supra). The convict in the present case had first killed Anil Badana who was the injured (witness) in case FIR No.125/96 PS Model Town.
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 12 of 16 Thereafter on learning that Sumit Nayyar an eye witness to the killing of Anil Badana had called the police, immediately came to the house of Sumit Nayyar within a short span of 1 - 1½ hours and killed his innocent father when he did not find Sumit Nayyar at home. His trail did not end here and the accused thereafter planned and escaped from police custody during the remand and has been allegedly threatening the witnesses during the trial in respect of which various FIRs have been registered.
Instances of witnesses being threatened intimidated or won over has plagued the criminal justice delivery system in India which is under public gaze. Failure of the criminal justice delivery system would only give rise to unrest and lawlessness in the society and the rule of law would ceased to exist. The convict has taken the law in his hands on several occasions. The present murder of Kimti Lal Nayyar, the father of Sumit Nayyar an eye witness to the murder of Anil Badana; was committed by him in cold blood without any instigation or provocation by the innocent and helpless senior citizen. This act of the convict is such, which shows that he has no concern St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 13 of 16 for law and human life. His repeated acts of playing with law adversely affects and shakes the faith of a common man in administration of justice who would be discouraged and dissuaded from approaching the court of law to depose against the criminals.
In the case of Shree Gopal @ Mani Gopal Vs. State (Supra) under similar circumstances, the Delhi High Court has Ruled against Capital Punishment but at the same time has held it to be a Rare Case thereby sentencing the convict to life with the condition that he shall not be entitled to any remission till he has undergone an actual imprisonment for 20 years. The case of convict Jitender @ Kalla stands on slightly different footing since the convict Jitender @ Kalla is involved in a double murder within a span of 1-1½ hours in respect of which two separate FIRs had been registered and in respect of first FIR No. 67/99 he has already been sentenced to Rigorous Imprisonment for life with the condition that he shall not be considered for remission till he has undergone actual punishment for 30 years.
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 14 of 16 Our Criminal Justice System stands on ocular evidence besides scientific evidence. The ocular evidence is considered to be the best evidence. The recent past tells us that all kinds of ploys are used to secure acquittal of the guilty which include winning over and threatening witnesses and if that fails, even liquidating them. In this background one finds the Justice System crumbling and it is the crying need of the hour that any attempt to subvert the system is quelled with a heavy hand failing which it will result in to anarchy in the society where common man will loose faith and confidence in the system. The repetitive acts of the convict in taking law into his hands adversely affects social psyche and the faith of the people in the Criminal Justice System of the country. Any crime directed towards the witness has to be discouraged and put down firmly and no challenge to the system can be permitted.
The present case cannot be put on the same pedestal as other ordinary murder case but at the same time it also does not fall within the category of Rarest of Rare Case. The case St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 15 of 16 in my view falls within the category of a Rare Case calling for consideration of alternative options. The fact that the convict has a history of violence would not be in itself sufficient to entitle this court to seek resort to the extreme action under the category of Rarest of Rare.
I, therefore, sentence the convict Jitender @ Kalla, to Rigorous Imprisonment for life - Till the rest of his life and also to pay a fine for a sum of Rs.3,00,000/- (Rs. Three lacs) for the offence under Section 302 IPC. In default of payment of fine the convict shall undergo Simple Imprisonment for three years. It is directed that out of this fine amount of Rs.3,00,000/- (Rs. Three lacs) if recover, a sum of Rs.1,00,000/- (Rs. One lacs) shall be paid to the State and the remaining amount of Rs.2,00,000/- (Rs. Two lacs) shall be paid to the family of the deceased Kimti Lal Nayyar.
The sentence in the present case shall start running consequent to and only after the conclusion of the sentence imposed upon the convict in case FIR No.67/99 PS Keshav Puram.
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar Page 16 of 16 The convict he is in judicial custody. He is sent to custody for serving the sentence.
He has been informed that he has a right to prefer an appeal against this judgment.
Copy of this order of sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 20.3.2010 ASJ (NW)-II: Rohini
St. Vs. Jitender @ Kalla, FIR No. 68/1999, PS Mukherjee Nagar