Delhi High Court
Jojha vs The State (Nct Of Delhi) on 24 September, 2009
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:September 24, 2009
+ CRIMINAL APPEAL NO.90/1995
JOJHA ..... Appellant
Through: Mr.Sumeet Verma, Advocate/Amicus
Curiae.
Versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Mr.Pawan Sharma, Advocate.
AND
+ CRIMINAL APPEAL NO.134/1995
MACHU ..... Appellant
Through: Mr.Sumeet Verma, Advocate/Amicus
Curiae.
Versus
THE STATE ..... Respondent
Through: Mr.Pawan Sharma, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers may
be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
Crl.ANos. 90/95 & 130/95 Page 1 of 7
SANJAY KISHAN KAUL, J.(ORAL)
1. These appeals have arisen out of the judgment of learned Additional
Sessions Judge in Sessions case No.137/93 arising out of FIR No.265/87,
P.S. Najafgarh in terms of which the appellants Jojha and Machu were
convicted for the offence punishable under Section 397 lPC read with
Section 394 IPC and vide a separate order dated 24.2.1995, they were
convicted to undergo imprisonment for life and also to pay a fine of
Rs.10,000/- each. In default of payment of fine, respective appellants
were directed to undergo SI for further period of 2 ½ years.
2. Briefly stated the case of the prosecution is that on the night
intervening 18/19.7.1987, appellants Jojha and Machu along with Tehrir,
Rafiq (P.O.) and others committed a series of dacoities in Village
Pochanpur, Baghdola and Ambrai and robbed Vijay Kumar, Amar Nath,
Baljor Singh, Balram Singh, Satpal Singh, Sunita and others of their cash,
gold, silver jewellery and wrist watches. At the time of committing
dacoity, the appellants and their co-accused persons were armed with
sarias and rods etc. and in the process, they caused injuries to Amar Nath,
Balram Singh and Baljor Singh.
3. The Pradhan of Village Baghdola conveyed the information about
the robbery to the police which was recorded as DD No.3 (Ex.PW12/A)
dated 19.7.1987. On receipt of copy of the DD report, SI Chander Bhan
Crl.ANos. 90/95 & 130/95 Page 2 of 7
reached at the spot of occurrence at Village Baghdola. However, by then
the injured had already been removed to the hospital. He was informed
about similar incidents which had taken place at Village Pochanpur. SI
Chander Bhan then went to Village Pochanpur where he met complainant
Vijay Kumar and recorded his statement Ex.PW2/A. On the basis of the
said statement, formal FIR No.265/87 under Sections 397/395 IPC was
registered at P.S. Najafgarh. SI Chander Bhan prepared the rough site
plans and recorded the statements of the witnesses. During investigation,
it came to light that the intruders had also committed dacoity in the
houses of Rattan Singh, Ramesh, Surinder Singh, Baljor Singh and Balram
Singh and in the process they had assaulted them.
4. On 22.7.1987, SI Chander Bhan along with police staff apprehended
the appellants along with Rafiq and Tehrir in FIR No.272/87 under Sections
399/402 IPC, P.S. Najafgarh while they were planning to commit dacoity.
On interrogation, respective accused persons including the appellants
made disclosure statements about the dacoities. Appellant Jojha made a
disclosure statement and pursuant to that he got recovered a stolen old
wrist watch make Titan and a gold earrings weighing 2.5 milligram which
was taken into possession vide memo Ex.PW1/A. The gold earrings were
identified by Shri Ramesh Chand as that of his sister-in-law Chand Kaur,
which were robbed from her on the night intervening 18/19.7.1987. The
appellant Machu also made a disclosure statement and pursuant to that,
he led the police party to his Jhuggi and from there he got recovered one
Crl.ANos. 90/95 & 130/95 Page 3 of 7
stolen old wrist watch make Homex, a stolen ladies wrist watch make HMT
and a gold earring weighing 2.1 milligram. The gold earring was identified
by Satpal Singh as that of his wife Santosh which was robbed from her on
the night intervening 18/19.7.1987.
5. The appellants were charged for the offences punishable under
Sections 395/307/149 IPC and 397 IPC read with Section 395 IPC. The
appellants pleaded not guilty to the charge and claimed to be tried.
6. During trial, PW1 Ramesh, PW4 Chand Kaur, PW9 Baljor Singh and
PW7 Balram supported the case of the prosecution and they identified the
appellants and the other accused persons as the intruders who entered
into their respective houses and robbed them. PW2 Vijay, however,
turned hostile. Learned Trial Judge, relying upon the testimony of above
referred witnesses, convicted the appellants for the offences punishable
under Section 397 IPC read with Section 394 IPC and sentenced them
accordingly.
7. Learned Shri Sumeet Verma, Advocate/Amicus Curiae for the
appellants has submitted that learned Sessions Judge has not properly
appreciated the evidence. According to him, the main plank of
prosecution case is the FIR Ex.PW5/A registered on the basis of the
complaint statement Ex.PW2/A given by PW2 Vijay Kumar to SI Chander
Bhan. He has submitted that PW2 complainant Vijay Kumar has not
Crl.ANos. 90/95 & 130/95 Page 4 of 7
supported the case of the prosecution and, therefore, learned Trial Court
ought to have given the benefit of doubt to the appellants.
8. We do not find any merit in this contention because on scrutiny of
the testimony of PW2 Vijay Kumar, it transpires that he has supported the
version of prosecution regarding the robbery committed at his house and
his having made statement Ex.PW2/A to the Investigating Officer. He only
failed to identify the persons who had trespassed into his house and
committed the robbery. Merely because PW2 Vijay Kumar was not able to
identify the culprits, the prosecution case cannot be thrown away. On
perusal of the records, it transpires that almost all the witnesses have
generally supported the case of the prosecution regarding the robberies
but some of them have not been able to identify the appellants as those
robbers. However, Ramesh Chand, Chand Kaur, Baljor Singh and Balram
Singh have identified the appellants. Therefore, we do not find any
infirmity in the judgment of conviction returned by the learned Additional
Sessions Judge.
9. Learned Amicus Curiae has pleaded that the punishment of
imprisonment of life awarded to the appellants Jojha and Machu is too
harsh considering the fact that nobody suffered serious injury in the
incident. He has submitted that the appellants were rather young persons
in the age range of 18 to 22 years at the time of commission of offence
and in view of their young age, they deserve lenient treatment. Learned
Crl.ANos. 90/95 & 130/95 Page 5 of 7
counsel for the State, on the other hand, has submitted that considering
the nature of the offence and the fact that grevious injury was caused to
one of the victims, the sentence of life imprisonment awarded by the
learned Trial Judge is proper.
10. Appellants Jojha and Machu were young persons in the age range of
18 to 22 years at the time of commission of offence. Considering the facts
and circumstances of the case and the young age of the appellants, we
feel that the sentence of imprisonment for life awarded to the appellants
is too harsh and they deserve one chance to reform themselves and
become useful member of the society. Therefore, taking into
consideration the overall facts and circumstances we are of the view that
imprisonment for a period of 10 years in the instant cases would meet the
ends of justice. Accordingly, the order on sentence is modified and
sentence of imprisonment of life is altered to RI for a period of 10 years.
The sentence of fine is maintained as it is. Both the appeals are allowed
to that extent and order on sentence is modified accordingly. The
appellants shall be entitled to benefit of Section 482 Cr.P.C.
11. Accused Jojha, as per the nominal noll has already undergone
incarceration for a period of more than 10 years. As per the nominal roll
of appellant Machu available on record, he has already undergone
incarceration for a period of 9 years, 8 months and 3 days and besides, he
has earned remission of 7 months and 7 days. Therefore, taking into
Crl.ANos. 90/95 & 130/95 Page 6 of 7
account, the period of remission, he has also completed his sentence of
10 years as such. Therefore, there is no need to take them into custody.
SANJAY KISHAN KAUL, J.
September 24, 2009 AJIT BHARIHOKE, J. gm Crl.ANos. 90/95 & 130/95 Page 7 of 7