* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 16th January, 2014
DECIDED ON : 23rd January, 2014
+ CRL.A.1042/2012
MOHD. VAKIL ..... Appellant
Through : Mr.Rajeev Kapoor, Advocate.
VERSUS
STATE GOVT. OF NCT OF DELHI .... Respondent
Through : Mr.Lovkesh Sawhney, APP.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Mohd.Vakil (the appellant) questions the legality and correctness of a judgment dated 31.03.2012 in Sessions Case No.137/11 arising out of FIR No.267/08 registered at Police Station Dabri by which he was convicted for committing offences under Sections 395/412 IPC. By an order on sentence dated 09.04.2012, he was awarded rigorous imprisonment for ten years with fine `25,000/- each under Section 395 and 412 IPC. Both the sentences were to operate concurrently.
2. Allegations against the appellant were that on 12.05.2008 at about 11.45 A.M. at house No.RZ-B-2, Raghu Nagar, Pankha Road, Dabri, he and his associates committed decoity and deprived the Crl.A.No.1042/2012 Page 1 of 6 complainant Smt.Seema Sharma and her family members of cash and gold/silver ornaments using deadly weapons. Daily Diary (DD) No.22 (Ex.PW-6/A) was recorded at 01.05 P.M. at Police Station Dabri regarding the incident. The investigation was assigned to SI Narender Singh who with Const.Amar Singh went to the spot. After recording complainant-Seema Sharma's statement (Ex.PW-1/A) he lodged First Information Report. Efforts were made to find out the culprits but in vain. On 31.08.2008 SI Narender Singh received DD No.111-B (Ex.PW5/A) dated 30.08.2008 which was recorded pursuant to the information received from SOS/Crime Branch, Sunlight Colony, New Delhi informing that one of the offenders namely Rajan Saha was arrested under Section 41.1(d) of Cr.P.C. and would be produced before Duty M.M. next day i.e.31.08.08. It was further informed that Rajan Saha had made a disclosure statement regarding his involvement in the decoity in question. Accordingly Rajan Saha was arrested on 31.08.2008. When he declined to participate in the TIP proceedings, he was taken on remand. TSR mini door for `2,10,000/- and Hunk motorcycle for `59,000/- purchased out of the booty in the name of his brother-in-law Manoj was recovered pursuant to his disclosure statement. The looted mobile phone bearing IMEI No.359945000295694 of make-Fly with sim No.9910211900 was also Crl.A.No.1042/2012 Page 2 of 6 recovered from him. He disclosed the names of the associates and it led to the apprehension of Mohd.Shakil, Mohd.Vakil, Zaved @ Mukesh and Guddu. They were also arrested and recoveries were effected at their instance. Mohd. Vakil got recovered one countrymade revolver along with three live rounds, one gold ring, two pairs of chutki and a pair of small tops which were identified by the complainant. During the course of investigation, statement of witnesses conversant with the facts were recorded and after completion of investigation a charge-sheet was submitted against all of them for committing offences under Sections 395/397/412 IPC and 25/27 Arms Act. Vide order dated 07.08.2009, the appellant and his associates were charged under Sections 395/412/397/34 IPC. The prosecution examined 21 witnesses to prove the charges. In 313 statements, the accused persons denied their involvement in the crime and pleaded false implication. Rajan Saha examined his brother-in-law Manoj Kumar as DW-1 in defence. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted all of them under Section 395/34 IPC. Rajan Saha, Aziz, Shakil and Vakil were also convicted under 412 IPC. They were, however, acquitted under Section 397 IPC and the State did not challenge the said acquittal. It is unclear if other convicts Crl.A.No.1042/2012 Page 3 of 6 Mohd.Jahangir Khan, Mohd.Shakil and Mohd. Aziz have challenged their conviction.
3. During the course of arguments, appellant's counsel on instructions stated at Bar that the appellant-Mohd Vakil has opted not to challenge the findings of the Trial Court on conviction. He, however, prayed to take lenient view as the appellant has already undergone substantial portion of the substantive sentence awarded to him and is not a previous convict. Learned Additional Public Prosecutor has no objection to it.
4. Since the appellant-Mohd.Vakil has given up challenge to the findings of the Trial Court on conviction under Section 395/412 IPC and accepts it voluntarily in the presence of overwhelming evidence in the statements of PW-1 (Seema Sharma), PW-2 (Rajbala) and PW-3 (Noor Alam), inmates of the house, who identified him as one of the assailants coupled with recovery of robbed articles at his instance, his conviction is affirmed. The appellant was sentenced to undergo rigorous imprisonment for ten years with fine `25,000/- each under Section 395/412 IPC. Nominal roll dated 18.07.2013 reveals that he has suffered incarceration for four years, eight months and eighteen days besides earning remission for five months and nine days as on 15.07.2013. He is not involved in any Crl.A.No.1042/2012 Page 4 of 6 criminal case and his overall jail conduct was satisfactory. It is informed that the appellant is a widower and has two minor sons aged 13 years and 7 years respectively. His younger son is handicapped and his three fingers of one hand have been amputated. The appellant has lost his daughter aged about 3 ½ years consequent upon the death of his wife. The children are being looked after by his sister-in-law who has her four children to take care of them. The appellant's mother is aged about 86 years and is suffering from various ailments. Trial Court record reveals that during trial Mohd.Vakil lost his wife on 10.01.2010. He was granted interim bail for a period of ten days vide order dated 02.02.2010 to make arrangements for his minor children and to perform final rituals. The interim bail was extended subsequently twice. Nothing has revealed if the appellant misused the liberty granted to him. The appellant has no criminal past history/antecedents and was the first offender. Though the assailants were armed with deadly weapons, however, no physical harm was caused to any of the inmates. Considering these mitigating circumstances, the substantive sentence of the appellant is reduced to seven years each under Sections 395 and 412 IPC. Other terms and conditions of the sentence order are left undisturbed except that the default sentence for non-payment Crl.A.No.1042/2012 Page 5 of 6 of fine of ` 25,000/-each under both the heads would be three months each.
5. The appeal stands disposed of in the above terms. Trial Court record be sent back immediately.
(S.P.GARG) JUDGE JANUARY 23, 2014 sa Crl.A.No.1042/2012 Page 6 of 6