Delhi High Court

Shahzad Khan vs The State (Nct Of Delhi) on 26 July, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment delivered on: July 26, 2011

+      CRIMINAL APPEAL NO. 659/2008

       SHAHZAD KHAN                                    ....APPELLANT

                  Through:   Appellant in custody with Mr.K.Singhal,

                             Advocate.

                       Versus

       THE STATE (NCT OF DELHI)                       ....RESPONDENT

Through: Ms.Fizani Husain, APP.

CORAM:

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 ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the impugned judgment dated

24th July, 2008 in Sessions Case No. 109/2007, FIR No. 394/2003,

under Sections 392/397/34 IPC and 27 of the Arms Act, P.S. Malviya

Nagar and consequent order on sentence dated 25 th July, 2008

whereby the appellant Shahzad Khan has been convicted for the

offences punishable under Sections 392 IPC as also Section 25 of the

Arms Act and sentenced to undergo RI for 07 years, besides fine of

` 5000/- for the offence under Section 392 IPC and for the offence

under Section 25 of the Arms Act, he has been sentenced to

undergo RI for the period of one year, besides fine of `1000/-.

2. Briefly stated, background facts for the disposal of this appeal

are that the appellant Shahzad Khan, along with two others was sent

for trial in case FIR No.394/2003 under Sections 392/397/34 IPC and

Section 27 of the Arms Act on the allegations that on the night

intervening 15/16th May, 2003, at around 11.30 p.m., the appellant

and his co-accused persons hired the TSR of the complainant for

going to Malviya Nagar. On the way, near Andhra School, they

asked to stop the TSR. Thereafter, they robbed the complainant of

`400/- and a polythene packet, which contained his driving licence,

voter card and TSR documents. Thereafter, the appellant and his

co-accused persons pushed him out of the TSR and fled away in the

same TSR. However, Constable Radhey Ram and Constable Ram

Niwas, who were coming from the side of Pushp Vihar on a motor

cycle chased them and apprehended them. It is alleged, on search,

a knife was recovered from the possession of the appellant.

3. The appellant was charged for the offence punishable under

Sections 392/397/34 IPC and Section 27 of the Arms Act. He

pleaded not guilty and claimed trial.

4. In order to bring home the guilt of the appellant, prosecution

has examined 16 witnesses, including the complainant, as also two

Constables who chased the TSR and apprehended the appellant and

his co-accused persons.

5. The appellant, in his statement, under Section 313 Cr.P.C.

denied the prosecution story and claimed to be innocent.

6. Learned Additional Sessions Judge, on consideration of the

submissions made by the parties and the evidence on record, found

the appellant guilty of Sections 392 IPC as also Section 25 of the

Arms Act and convicted and sentenced him accordingly.

7. Learned Shri K.Singhal, Advocate appearing for the appellant,

at the outset, on the instructions of the appellant, who is present in

court, submits that the appellant admits his guilt and he does not

wish to challenge his conviction under Section 392 IPC and Section

25 of the Arms Act. Learned counsel, however, has confined his

arguments against the quantum of sentence awarded to the

appellant. Learned counsel submits that the sentence awarded to

the appellant is too harsh and learned Additional Sessions Judge,

while sentencing the appellant, has ignored the fact that the

appellant, at the time of commission of offence, was a young man of

around 20 years. He did not have previous criminal record and it

was his first brush with the crime. Learned counsel submits that the

appellant during the intervening period, has realized his mistake and

he is in the mood of remorse and repentance. He deserves at least

one chance to mend his ways and prove to be a useful member of

the society. Thus, learned counsel has vehemently urged for

reduction of sentence awarded to the appellant.

8. Learned APP, on the other hand, submits that considering the

gravity of the offence committed by the appellant, there is no

reason for reduction of sentence in this case. Thus, she has urged

for dismissal of appeal.

9. I have considered the rival contentions. Sentencing of an

accused in a criminal matter is a serious exercise and the quantum

of sentence imposed commensurate with the gravity of the offence

committed by the accused and the circumstances under which the

offence was committed. While dealing with the issue of sentence for

the offences under Sections 3,4 & 6 of Terrorist and Disruptive

Activities (Prevention) Act, 1987, Supreme Court in the matter of

Karamjit Singh v. State (Delhi Admn.), (2001) 9 SCC 161,

wherein the Supreme Court, has inter alia, observed thus:

"7. ......Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weigh the degree of

culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such a case; a balance between the interest of the individual and the concern of the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law.

8. After giving our anxious consideration to the question of reduction of sentence as urged on behalf of the appellant and objected to on behalf of the respondent, we have come to the conclusion that some consideration should be shown to the appellant in the matter. In coming to this conclusion we have taken into account the facts that he has spent a long period, more than thirteen years, in jail; that he was a young man of 21 years when he committed the act giving rise to the case; that the situation then prevailing in the State of Punjab was surcharged with acts of terrorism and several misguided young men were drawn into the movement; that in the meantime the movement has subsided and it could be reasonably taken that the State is free from the menace of terrorism. In taking the decision to show some consideration to the appellant in the matter of punishment we have reposed confidence in goodness of human character which is a part of the personality of every human being. We hope and believe that our confidence will not be belied in the case of the appellant. In the facts and circumstances of the case and the changed social environment which has taken place in the meantime, it is our considered view that the sentence of life imprisonment should be modified to the period already undergone (about 13 years 7 months). Before being released from jail in the case, the appellant will notify the jail authority the place and the address at which he intends to stay, on receipt of which the jail authority will intimate the Superintendent of Police of that place with a request to

him to keep the appellant under observation. If the Superintendent of Police finds that the appellant is indulging in any illegal activity which amounts to an offence under any law, he shall immediately send a report to the Registrar General of this Court. With this modification of sentence as noted above, this appeal is dismissed."

10. In the case in hand, the appellant is a young man aged about

29 years. As per the nominal roll received from Central Jail No. 3,

Tihar, the appellant has undergone incarceration for a period of 01

year and 10 months (approximately) as on 25.11.2009. Even

thereafter he remained in custody. Therefore, his overall period of

incarceration till date obviously is approximately 3 ½ years. Besides

that, he must have earned some remission in sentence. As per the

nominal roll, the conduct of the appellant during custody was found

satisfactory and till 25.11.2009 he did not avail benefit of parole or

interim bail. Taking into account the nature of the offence

committed by the appellant and the fact that the appellant is a first

offender, to my mind, the imprisonment of 07 years RI for offence