Jojha vs The State (Nct Of Delhi)
2009 Latest Caselaw 3931 Del

*      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