Istkhar vs State Of Delhi
2010 Latest Caselaw 1639 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                    DATE of ORDER: 23rd March, 2010


+                             Crl. A. 920/2004

#      ISTKHAR                                                   .....Appellant
!                                    Through: Mr.              Yogendra      Singh
                                     Chaudhary, Adv.

                              versus


$      STATE OF DELHI                                             ..... Respondent
^                                    Through:           Mr. Jaideep Malik, APP.

+                             Crl. A. 28/2005

#      INTZAR                                                    .....Appellant
!                                    Through: Mr.              Yogendra      Singh
                                     Chaudhary, Adv.

                              versus

$      STATE OF DELHI                                             ..... Respondent
^                                    Through:           Mr. Jaideep Malik, APP.


                                 Crl. A. 231/2005

#      ISHRAR AND ANR.                                .....Appellant
!                                    Through: Mr.Yogendra         Singh
                                     Chaudhary, Adv..


                              versus

$      STATE OF DELHI                                             ..... Respondent
^                                    Through:           Mr. Jaideep Malik, APP.



Crl. A. Nos. 920/2004, 28/2005, 231/2005 and 819/2005                 Page 1 of 10
 +                             Crl. A. 819/2005

#      RUKSHAR                                                   .....Appellant
!                                    Through: Mr.              Yogendra      Singh
                                     Chaudhary, Adv.

                              versus

$      STATE OF DELHI                                             ..... Respondent
^                                    Through:           Mr. Jaideep Malik, APP.


*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

       1.      Whether the Reporters of local papers
               may be allowed to see the judgment?                        No

       2.      To be referred to the Reporter or not?                     No

       3.      Whether the judgment should be                             No
               reported in the Digest?


: V.K. JAIN, J. (ORAL)

1. By this common judgment, I shall dispose of all the four

appeals referred above, which are directed against a common

Judgment dated 18th November, 2010 and Order on Sentence

dated 25th November, 2010, whereby the appellants were

convicted under Section 395 and Section 120B IPC and were

sentenced to undergo RI for 7 years each and to pay fine of

Rs.3,000/- or to undergo FIR for six months in default under

Section 395 of IPC and were further sentenced to undergo FIR

for 5 years each and to pay fine of Rs.2,000/- each or to undergo

imprisonment for 4 months each in default under Section 120-B

IPC.

2. On 2nd February, 2006, on receipt of information about an

incident of robbery, the Investigation Officer of this case went to

Bagh Kare Khan, Sarai Rohilla, Delhi where the complainant

Smt. Madhu Gupta met him. The complainant alleged that she

was in the business of selling foam-cloth and that on 30th

January, 2002, she had sold cloth worth Rs.9,30,000/- and had

kept the cash in her almirah. In the morning of 31st January,

2002, four persons came to her godown and talked about

purchase of cloth. Out of those four boys, two again came to her

godown in the morning of 2nd February, 2002. Recognizing them,

she opened the door. Two other boys, who were present outside,

also entered the godown alongwith them. Those persons gave

beatings to her. After tying the complainant, they removed the

jewellery which she was wearing and also removed the cash and

some jewellery which had been kept in the almirah.

3. The appellants were arrested during investigation of this

case and part of the stolen property is alleged to have been

recovered from each of them.

4. The prosecution examined 19 witnesses in support of his

case. One witness was examined in defence.

5. The complainant, Smt. Madhu Gupta, came in the witness

box as PW-5 and supported the version set up in the FIR. She

stated that on 31st January, 2002, four boys came to her house

and told her that they were sent by her son Nikhil for purchasing

foam cloth. She told them that she had sold foam cloth to some

customer from Tamil Nadu for Rs.9,25,000/- and asked them to

come after one or two days so that she could arrange foam cloth

for them in the meanwhile. She identified the appellants Istkhar,

Ishrar, Akhtiyar and Rukshar as those four persons. She further

stated that on 2nd February, 2002, at about 6.00 am, two boys

knocked at the door. When she opened the door, those boys,

alongwith two other boys, who were present outside, entered

her place. One of them forcibly poured something in her mouth

and thereafter, those persons robbed her of four bangles, four

rings and one chain. Her hands and legs were then tied and the

cash and ornaments kept in the almirah were taken away. When

she regained consciousness and went to the main door, she saw

four persons who had come on that day alongwith the appellant

Intzar. She identified two karas Ex. P-1, four bangles Ex.P-2,

two rings Ex.P-3, three silver rings Ex.P-4 and one hathphool

Ex.P-5, as the articles of jewellery, which were stolen from her

possession.

6. PW-3 Constable Raj Kumar stated that on 06th April, 2002,

the appellant Rukhshar was arrested at the pointing out of an

informer and was interrogated. He led them to his house in Gali

Masjid Wali and got recovered one hathphool and three rings

Ex.P-3/D. He identified the hathphool and rings in the Court.

PW-10 Constable Vijay stated that on 06th February, 2002, they

received a secret information that three persons involved in this

robbery will be leaving for Badayun from Anand Vihar ISBT.

Thereupon, a raiding party was organized. At about 9-10 pm, the

appellants Istkhar, Ishrar and Akhtiyar were apprehended at

the pointing out of the informer and were interrogated. On

checking the polythene bags which they were carrying, Ishrar

was found carrying two karas besides some cash. Akhityar was

found carrying two bangles alongwith some cash and Istkhar

was found carrying some cash and a briefcase alongwith two

gold chains. All these articles were seized vide memos Ex.PW-

10/K, PW-10/L and PW-10/M.

7. PW-12 Constable Rajiv has corroborated the testimony of

PW-10 Constable Vijay Kumar regarding arrest of the appellant

Istkhar, Ishrar and Akhtiyar. He also identified the recovered

articles, four bangles, Ex.P-2 and two karas Ex.P-1.

8. PW-14 Deepak Sharma stated that on 15 th March, 2002, the

appellant Intzar was arrested on the pointing out of the informer

and was interrogated. He took them to a jhuggi in Gali No. 8,

Kailash Nagar, Railway Line and took out cash amounting to

Rs.30,000/- alongwith two ring which were seized vide memo

Ex.PW14/D.

9. PW-16 Constable Manoj Kumar corroborated the

deposition of PWs-10 and PW-12 regarding arrest of appellants

Istkhar, Ishrar and Akhtiyar and recovery from them.

10. PW-19 SI Umesh Sharma is the IO of the case. He stated

that on 05th March, 2002, the appellant Intazar was arrested by

them and he took them to Gali No. 8 from where Rs.30,000/-

alongwith two rings were recovered and were seized vide memo

Ex.PW-3/D.

11. PW-13 Shri Inderjeet Singh, Metropolitan Magistrate

stated that on 08th March, 2002, he conducted Test Identification

Parade of the case property which was identified by the

complainant vide proceedings Ex.P-13/A.

12. Pw-17 Rakesh Syal, who was working as Metropolitan

Magistrate, at the relevant time stated that the appellant

Akhtiyar refused to join TIP before him and in jail on 11 th

February, 2002 despite the warning that an adverse inference

can be drawn against him during trial on account of his refusal

to join TIP. He further stated that the appellant Istkhar also

refused to join TIP before him on 07th February, 2002.

According to him, on 12th February, 2002, the complainant

Madhu Gupta identified the appellant Ishrar before him in a

judicial TIP.

13. The original Trial Court Record in this case is not traceable

and the record was, therefore, reconstructed to the extent it

could be done with the copies provided by the parties. The

statement of accused persons could not be reconstructed since

neither the appellants nor the learned APP had the copies of the

statements in their record. On an enquiry being directed by this

Court, the Registrar reported that the Trial Court Record could

not be traced despite efforts made by him. He also identified the

Court official responsible for the loss of the record and was

directed to initiate action, on administrative side, against the

official found at fault for the loss of the record.

14. The arguments in these appeals were heard on 19th March,

2010, 22nd March, 2010 as well as today. After extensive

arguments spread over three days, the learned counsel for the

appellant states that considering the evidence which was led

during trial, the appellants do not dispute their conviction on

merits and only seek reduction of the sentence awarded to them.

15. Considering the fact that the incident of robbery took place

more than eight years ago and the appellants have already spent

considerable period in custody, I feel that there is a scope for

reducing the substantive sentence awarded to the appellants.

16. A perusal of the nominal roll of the appellants Ishrar and

his brother Akhtiyar shows that as on 14th March, 2005, they had

spent more than three years each in custody without including

the period of remission earned by them. They were granted bail

by this Court vide order dated 30th January, 2006. Thus, they

have spent three years and 9 months each in custody. A perusal

of the nominal roll of the appellant Istkhar shows that as on 4th

February, 2005, he had spent two years 11 months and 23 days

in custody without including the remission earned by him. He

was granted bail vide order dated September 8, 2005.

Therefore, he also has spent about more than 3 years in custody

without taking into consideration the remission earned by him.

The nominal roll of the Rukhsar shows that as on 26th April,

2006, he had already spent more than 4 years in custody,

without including the remission earned by him. He was granted

bail by this Court vide order dated 27th July, 2006. Therefore, he

has spent more than four yours in custody. The nominal roll of

the appellant Intzar shows that as on 1st September, 2005, he

had spent more than three years and two months in custody

without including the period of remission. He was granted bail

by this Court vide order dated 08th September, 2005. Therefore,

he also has spent more than three years in custody.

17. Taking into consideration all the fact and circumstances of

the case, including loss of original record and the period already

spent by the appellants in custody, they are sentenced to

imprisonment for the period already spent by them in jail. They

shall also deposit the fine imposed upon them by the Trial Court

within four weeks. In default of payment of fine, they shall

undergo SI for three months each.

The reconstructed record be sent back immediately along

with a copy of this judgment. If the fine is not deposited within

four weeks, the Trial Court will take appropriate steps for

committing the appellants to the prison to undergo the sentence

imposed upon them.

One copy of this order be given dasti to the appellants in

order to enable them to deposit the amount of fine.

Crl.A.Nos. 920/2004, 28/2005, 231/2005 and 28/2005 stand

disposed of.

(V.K. JAIN) JUDGE MARCH 23, 2010 bg