Kadir vs State Of Delhi
2009 Latest Caselaw 2374 Del

           IN THE HIGH COURT OF DELHI AT NEW DELHI

                            Crl.A. No. 67/2001

             Judgment pronounced on 17th June, 2009.

     #       Kadir                        ....       Appellant
                          Through:   Mr. Sumeet Verma, Adv.

                               Versus

     $       State of Delhi                 ....    Respondent
                        Through:     Mr. Lovkesh Sawhney, Adv.


     CORAM:

     HON'BLE MR. JUSTICE G.S. SISTANI

            1.       Whether reporters of local papers may be
                     allowed to see the Judgment ?                Yes
            2.       To be referred to the Reporter or not?       Yes
            3.       Whether the Judgment should be reported    in
                      the Digest?                                 Yes

G.S. SISTANI, J.

1. The present appeal is directed against the judgment and

order on sentence, both dated 21st December, 2000,

passed by the learned Additional Sessions Judge, Delhi in

SC No.115/1994, by virtue of which the appellant herein

had been sentenced to undergo rigorous imprisonment,

under Section 392 IPC for a period of three years with a

fine of Rs.1,000/- and in default of payment of fine, to

undergo further simple imprisonment for two months.

2. The case of the prosecution, as noticed by the learned

Additional Sessions Judge, is that four accused persons,

namely, Afzal, Kadir, Rahis and Mehboob, allegedly

robbed the complainant Sunil Gauba of his bag and wrist

watch on 14th May, 1992 at about 10:15 pm. A deadly

weapon was alleged to have been used by the accused

persons in committing the offence of robbery.

Accordingly, the accused persons were charged with

offences punishable under Section 392 of the IPC as well

as Section 397 IPC. In support of its case, prosecution

examined fourteen (14) witnesses. No evidence was led

by the defence. The principal witness of the prosecution

is the complainant, who has deposed that on 14 th May,

1992 he was coming from Faridabad to Delhi by bus and

he got down at Inter State Bus Terminal (I.S.B.T.) at

about 9.00 - 9.15 pm. From I.S.B.T, he took a bus for

Silam Pur and got down at the bus stand Silam Pur

around 10.15 pm. While he was walking via jhuggis

towards the railway line, and as he was crossing the

railway line, 2-3 boys came in front of him. One of the

boys caught hold of his collar and made him sit whereas

another boy snatched his bag containing Rs.3750/-,

visiting cards, spectacles and some bills. The third

person put a knife on his neck. His wrist watch HMT make

was also snatched from him. He pointed out towards the

appellant as the person who snatched his bag. He also

identified accused Mehboob as the one who caught his

neck. The complainant then corrected himself and

deposed that appellant, Kadir had placed knife on his

neck and also snatched the bag while accused Rahis had

caught hold of him. Thereafter, all the four escaped.

The complainant after being robbed off his belongings,

went to the police station, Gandhi Nagar and lodged a

report which is Ex.PW-7/A. On the next day, he along

with I.O. and 2-3 constables went to the railway lines

where the incident had taken place and at his instance

accused Afzal was apprehended. On 16th May, 1992

appellant Kadir was arrested while he was carrying the

bag of the complainant which was snatched at the time of

the robbery. The bag was seized by the police which

contained visiting cards and some bills but the money

was not there. After 4-5 months, accused Mehboob and

Rahis were arrested. The complainant identified his bag

as Ex.P1 and the spectacles as Ex.P3, several visiting

cards collectively as Ex.P-10.

3. Post trial, all the accused persons except Kadir were

acquitted of all the charges. Kadir though acquitted of

the charge under section 397 IPC, was convicted of

having committed an offence under section 392 IPC.

4. Learned counsel for the appellant, Kadir, submitted that

the appellant has been convicted solely on the basis of

the statement of the complainant while, admittedly, the

incident took place at about 10.15 pm and there was not

enough light for the complainant to have identified the

appellant. It is further submitted that there were no

public witnesses at the time of arrest of the appellant and

it is highly improbable that two days after the incident

the appellant would be carrying the snatched bag which

allegedly is sought to have been recovered from him.

Even otherwise, besides the bag, no recovery of money

has been made from the appellant and the appellant has

been falsely implicated in the matter.

5. Counsel for the appellant further submitted that all the

other co-accused persons have been acquitted on the

ground that it was difficult to lend credence to the

identification with regard to other accused persons.

Counsel submitted that the learned Additional Sessions

Judge has observed that no test identification parade has

been held. Accused Mehboob was acquitted on the

ground that he was arrested after five months from the

date of the incident and the incident took place in an area

which was not very well lit. The learned trial court has

observed that "the light at the place was coming either

from the jhuggis or from the street lights which was not

very close to the spot. Further, the occurrence, described

in the evidence, must not have taken more than a few

minutes". It is also observed by the learned trial court

that nothing was recovered from Mehboob. Counsel for

the appellant also submitted that the evidence of the

appellant is highly unreliable as all the co-accused

persons have been acquitted for the offence under

Section 397 IPC. No weapon, alleged to have been used,

has been recovered and further the complainant has

given two diagrammatically opposite versions of the

offence. On the one hand, it has been stated that he did

not chase the culprits as he was afraid of being stabbed

and on the other hand he has stated that he chased one

of the accused persons for nearly 20 minutes, which

would show that in case culprits had used any knife, the

complainant would not have the courage to chase them.

6. Mr.Sumeet Verma, learned counsel for the appellant,

however submitted that at this stage, he would confine

his arguments to the question of quantum of sentence

only. He submitted that the sentence already undergone

by the appellant would suffice for the reason that the

case relates to the year 1992. The appellant has

undergone the ordeal of trial for nearly 17 years and

presently he has been on bail. There has been no

complaint whatsoever about his having belied the trust

reposed upon him by this court by granting him bail.

Even at the time of awarding sentence, the appellant had

pleaded that he is married and has three children and for

the last eight years he has not committed any other

criminal offence.

7. Learned counsel for the State, however, submitted that

the case against the appellant has been proved beyond

any shadow of doubt and the judgment and the order of

conviction should be upheld.

8. I have heard learned counsel for the parties and gone

through the material on record carefully.

9. The incident in the present case occurred on 14th May,

1992. The trial court has acquitted three out of the four

accused persons. Appellant, Kadir was also acquitted

under section 397 IPC but was found guilty under section

392 IPC. Admittedly, at the time when the order of

sentence was made, it was noticed by the learned

Additional Sessions Judge that the appellant is married

and has three children who are dependant on him. As

per the nominal roll of the appellant, his conduct in jail

was found to be satisfactory. The appellant has been on

bail and there is nothing on record to show that he had

any previous criminal history or barring the incident in

question he has committed any other offence. The order

of sentence was passed in the year 2000 and almost nine

(9) years have elapsed. As of now, the appellant has

assimilated in the mainstream society as a useful citizen.

Today, in case the appellant is asked to serve the

remaining portion of his sentence and put with hardened

criminals, no purpose would be achieved. Besides, to

meet the ends of justice, I do not consider it appropriate

requiring the appellant to undergo the remaining period

of sentence after facing the ordeal of trial for over

seventeen years. Not only would the appellant suffer, but

his children and family will also undergo agony and

misery. It has been beautifully enunciated by the Apex

Court in the case of State of Punjab Vs. Prem Sagar &

Ors. reported at (2008) 7 SCC 550, that in operating the

sentencing system, law should adopt the corrective

machinery or deterrence based on factual matrix. By deft

modulation, sentencing process be stern where it should

and tempering with mercy where it warrants to be.

Accordingly, I upheld the order of conviction dated

21.12.2000, passed by the learned Additional Sessions

Judge, Delhi in SC No.115/1994, but modify the order of

sentence to already undergone by the appellant.

10. Appeal stands disposed of. Bail bond and the surety

stand discharged.

(G.S. SISTANI) JUDGE 17th June, 2008 sjs