Nazim vs State

$~R-1A, 1B & 1C
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                   Date of Decision: 1st June,2016
+      CRL.A. 1723/2014
s

       NAZIM                                                            ..... Appellant
                               Through:      None.

                                           versus
       STATE                                                    ..... Respondent
                               Through:      Mr.Amit Ahlawat, APP for the State.
AND
+   CRL.A. 194/2015
       FARID ANSARI                                                     ..... Appellant
                               Through:      None.

                                           versus
       STATE                                                    ..... Respondent
                               Through:      Mr.Amit Ahlawat, APP for the State
AND
+   CRL. A. 356/2015
       AKRAM                                           ..... Appellant
                     Through: Mr.Saurab Kansal and Ms.Pallavi
                                S.Kansal, Advocate.
                             versus
       STATE NCT OF DELHI                           ..... Respondent
                     Through: Mr.Amit Ahlawat, APP for the State


PRATIBHA RANI, J. (Oral)

1. These connected appeals have come up for hearing pursuant to the directions issued for expediting hearing in appeals filed by persons in custody.

2. The appellants have preferred these appeals impugning the judgment and order on sentence dated 19.08.2014 & 20.11.2014 respectively whereby appellants Akram and Farid have been convicted for committing the offence punishable under Section 398 IPC and under Section 25 of Arms Act and appellant Nazim has been convicted for the offence punishable under Section 393 IPC and sentenced as under :

Appellant Akram U/S 398 IPC : to undergo RI for ten years with fine of ₹20,000/- and in default of payment of fine, to undergo RI for one year.

U/S 25 Arms Act : to undergo RI for one-and-a-half years with fine of ₹5000/- and in default of payment of fine, to undergo SI for ninety days.

Appellant Farid U/S 398 IPC : to undergo RI for ten years with fine of ₹20,000/- and in default of payment of fine, to undergo RI for one year.

U/S 25 Arms Act : to undergo RI for one-and-a-half years with fine of ₹5000/- and in default of payment of fine, to undergo SI for ninety days.

Appellant Nazim U/S 393 IPC : to undergo RI for five years with fine of ₹10,000/- and in default of payment of fine, to undergo RI for six months.

3. The facts of the case as mentioned by the learned Trial Court in Para No.1 of the judgment read as under:-

'On 20.08.2007 on receipt of information vide DD No.44B, HC Sompal Singh and Ct.Narender reached at the spot i.e. Gali No.18, near Nalanda School, SBS Colony, Karawl Nagar, where Smt.Vimlesh met them and produced accused Akram and one country made pistol and one live cartridge, which were recovered from him. HC Sompal Singh recorded the statement of Smt.Vimlesh, which is to the effect that she was present in her house alongwith her sister-in-law (jethani) Smt. Sheela Devi. At about 02.30 pm, three boys entered into her house through back door and came to her and asked the rate of dry coconut (gola), which was quoted as ₹60/- per kg by her. The age of those three boys were ranging from 20-22 years. While talking they took her inside the room and one of the boys shut her mouth from behind and pushed her on the bed. The boy who had shut her mouth also put a pistol on her temple and called her associate Farid to take out a knife and accordingly second boy put knife on her neck. The third boy while giving threat, asked about her valuables. The first two boys were calling the third boy as Nazim. In the meantime, she got time to cry and accordingly sh cried loudly 'bachao--bachao'. On hearing her cry, Sheela Devi came there in the room. She also cried 'bachao-bchao' and 'pakdo-pakdo'. All the three boys came out of the room. Nazim and Farid ran away, however the other boy was caught by neighbourers and Ashok (nephew of complainant). His name was disclosed as Akram and a country made pistol with one live cartridge was found from his possession. IO interrogated Akram, who disclosed the residence of Farid. IO visited the given address with Akram and complainant and arrested Farid from his residence, on identification of complainant. Nazim was absconding, but later on, he also surrendered in the Court. Nazim refused to participate in his TIP.'

4. During the pendency of the appeals, appellant Akram (in Crl.A. No.356/2015) has expired. His death has been verified by the State. Thus, so far as appellant Akram is concerned, the appeal bearing Cr.A. No.356/2015 stands abated.

5. I have heard the appellants Farid and Nazim, who have been produced from judicial custody, as well as their counsel.

6. Learned counsel for appellant Nazim (in Crl.A. No.1723/2014) on instructions has submitted that the appellant is not challenging his conviction under Section 393 IPC and limiting his prayer to the extent that a lenient view may be taken on the quantum of sentence.

7. Learned counsel for the appellant Farid (in Crl.A. No.195/2015) has submitted that the evidence against the appellant Farid is the same against appellant Nazim. None of these two appellants have been apprehended at the spot. While appellant Farid has been apprehended from his house at the instance of Akram, appellant Nazim surrendered in the Court. Learned counsel for the appellant Farid has further submitted that it is a case where neither any injury was caused to the complainant Smt. Vimlesh nor any article was robbed. Thus, it was a case where like appellant Nazim, appellant Farid should have been convicted for the offence punishable under Section 393 IPC. Learned counsel for the appellant Farid has further submitted that the prosecution's case against the appellants is that at the time of occurrence Appellant AKram (deceased) was having countrymade pistol with a live cartridge and appellant Farid was having a button activated knife. Appellant Farid has not been apprehended from the spot. He has been apprehended after many hours of the incident from his house in the presence of the complainant and as per prosecution, at that time one knife was recovered from the pocket of his pant. Thus, at the most he could have been convicted for the offence punishable under Section 393 IPC and under Section 25 of Arms Act.

8. I agree with the submissions made on behalf of the appellant Farid. It may be noted here that there are material discrepancies in the statement made by PW-1 Smt.Bimlesh - the complainant, PW-3 Smt.Sheela - her jethani and PW-8 Sh.Ashok Kumar - son of Sheela (nephew of Bimlesh).

9. PW-1 Smt. Bimlesh - the complainant has made statement to the following effect:-

'I am illiterate but I can sign. At the time of incident, I was residing with my family members in School Premises situated in Gali No.18, SPS Colony, Karawal Nagar, Delhi. I used to remain at home being housewife. My husband is doing business of dry fruits at Khari Bawali, New Delhi. My sister-in- law (jethani) Smt. Sheela Devi was also residing in same School with her family.

It was two years ago, 2-3 days after the festival of Teej, I was present at my house. It was about 2.30 pm. Three boys entered into out premises from the back gate of the school. They firstly inquired from me about price of dry coconut. I told them about the rate. Thereafter those three persons started about this and that. Thereafter one of those boys pointed country made pistol on my temple and other pointed buttondar knife on my neck. My mouth was also gagged by them. Thereafter, all the three boys asked me to delivery all the money whatever I was having in my house. My husband had kept ₹90,000/- under my bed. Meanwhile I raised alarm hearing which my jethani came there. Hearing my cries, neighbours and public persons also gathered there. Thereafter public persons apprehended one person two of them managed to flee away. All those three boys who entered my house are present in the Court today.

Witness has pointed out towards accused Akram as the person who was apprehended at the spot. Witness pointed out towards accused Nazim and Farid as the persons who managed to flee away.' Crl.A.Nos.1723/2014, 195/2015 & 356/2015 Page 5 of 7

10. PW-3 -Smt. Sheela - jethani of the complainant has stated :

'Vimlesh is my Devraani. Ashok is my son. On 20 August 3-4 years back I came to Karawal Nagar in the house of my Devraani, Vimlesh as I was suffering some illness. On that day at about 2 - 2.30 pm I alongwith my Devraani Vimlesh were present in the house and 3 young male persons came at our house from back door of the house. Those boys are present in the Court today witness pointed out towards the accused persons. Witness pointed out towards the accused Akram and disclosed his name as Akram (correctly identified). Accused persons asked rate of Gola (coconut) from my Devraani Vimlesh and I was busy in other work at that time. I did not notice the same. Meanwhile the accused persons closed main gate of the house and Akram caught hold Vimlesh by her hands at the back side and other accused persons put his hand on the mouth of Vimlesh and the third accused was standing there. I came outside and heard shouting of Vimlesh. I opened the door and found the accused persons were grappling with Vimlesh I raised alarm. Two accused persons ran towards back door of the house and third accused ran towards the main gate. I again shouted 'Choor Choor' and neighbourhood persons also came. And one person was apprehended by neighbourhood persons and my son Ashok. That persons disclosed his name as Vikram, again said Akram. On country made pistol and one cartridge was recovered from possession of Akram. One knife was thrown by two accused persons who ran towards the back door of the house.'

11. So far as PW-8 Sh. Ashok Kumar, who has apprehended appellant Akram (since expired) from the spot, is concerned, he has not supported the case of prosecution at all and denied having apprehended Akram from the spot. However, since appellant Akram has expired during pendency of the appeal, no further discussion is required on this issue.

12. On appreciating the testimony of material prosecution witnesses i.e. PW-1 Smt. Bimlesh - the complainant and PW-3 Smt. Sheela - her jethani, I Crl.A.Nos.1723/2014, 195/2015 & 356/2015 Page 6 of 7 am of the opinion that so far as appellant Farid is concerned, he could not have been convicted for committing the offence punishable under Section 398 IPC. Hence the conviction of appellant Farid for committing the offence punishable under Section 398 IPC is set aside and he is convicted for the offence punishable under Section 393 IPC.

13. So far as appellant Nazim is concerned, he is not challenging his conviction under Section 393 IPC. Accordingly, the conviction of appellant Nazim for committing the offence punishable under Section 393 IPC is maintained.

14. Now coming to the aspect of quantum of sentence, the sentence awarded to appellant Nazim for committing the offence punishable under Section 393 IPC is reduced from five years to four years. The sentence of fine of ₹10,000/- is maintained. However, the sentence required to be undergone in default of payment of fine is reduced from six months to one month.

15. So far as appellant Farid is concerned, he is sentenced to undergo RI for four years with fine of ₹10,000/- for the offence punishable under Section 393 IPC. However, in default of payment fine, he shall undergo SI for one month.

16. Appeals stand disposed of in above terms.

17. TCR be sent back alongwith copy of this order.

18. A copy of this order be sent to the concerned Jail Superintendent for information and necessary compliance.

PRATIBHA RANI, J.

JUNE 01, 2016/'st' Crl.A.Nos.1723/2014, 195/2015 & 356/2015 Page 7 of 7