Firoz Khan vs State
2013 Latest Caselaw 589 Del

$~4 & 5
* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 7th February, 2013

+       CRL. A. 579/2000

        FIROZ KHAN                                          ..... Appellant
                              Through:    Mr. Sumeet Verma, Advocate.

                              versus
        STATE                                             ..... Respondent
                              Through:    Mr. Pawan Sharma, Standing
                                          Counsel with Mr. Sahil Mongia,
                                          Advocate.
+       CRL. A. 634/2000

        MOHD. SHAKEEL                                       ..... Appellant
                              Through:    Mr. Sumeet Verma, Advocate.

                              versus
        STATE                                             ..... Respondent
                              Through:    Mr. Pawan Sharma, Standing
                                          Counsel with Mr. Sahil Mongia,
                                          Advocate.

CORAM:
HON'BLE MR. JUSTICE R. V. EASWAR

                                  JUDGMENT

R. V. EASWAR, J.: (ORAL)

These are two appeals filed against the conviction under section 326/34

of the Indian Penal Code by the judgment dated 12.09.2000 passed by the

Addl. Sessions Judge, Delhi. It is not necessary to examine the facts or the

impugned judgment in detail. It is sufficient to notice the basic facts leading

to the conviction. On 19.01.1999 which was the day of Eid, both the accused

Firoz Khan, Mohd. Shakeel along with Javed and the injured Asgar Hussain

were taking a stroll and all of a sudden Javed took out a knife and stabbed

Asgar Hussain who was being held by the accused Mohd. Shakeel. Accused

Firoz Khan also appears to have inflicted a knife injury on Asgar Hussain.

The learned Addl. Sessions Judge on these facts has held that an offence under

section 326 read with section 34 of the Indian Penal Code has been made out;

he has, however, acquitted the accused Firoz Khan and Mohd. Shakeel of the

offence under section 307 of the Indian Penal Code. He awarded sentence of

rigorous imprisonment of 5 years and to a fine of `1,000/- each, and 4 months

R.I. in default thereof to each of the accused under section 326 read with

section 34 of the Indian Penal Code.

2. It is stated by the learned counsel appearing for the appellants that Firoz

Khan has undergone more than three years of the sentence and Mohd. Shakeel

has undergone less than one year of the sentence. It is also stated that both of

them have now been reformed and assimilated into the society, and about 14

years have passed after the date of the incident. Accused Firoz Khan, it is

stated, is married and has two minor daughters aged 3 ½ years and 2 years. He

is living with his parents and is working as a conductor in a private vehicle.

Accused Mohd. Shakeel, it is stated, is working in a meat shop. He has a wife

and a minor son aged about 5 years. It is also stated that in these 14 years time

they have led a normal crime-free life and have been assimilated into the

society and there has been no complaint against or offence committed by

them.

3. I have considered the arguments of both the sides and I have also

examined the impugned judgment. From a consideration of all these, it

appears to me that it was only after Javed inflicted the first injury, and

apparently emboldened by that, that the accused Firoz Khan also inflicted a

knife injury on Asgar Hussain. Mohd. Shakeel did not inflict any knife injury

on Asgar Hussain but had only caught hold of him. It further appears that

there was no previous history of any enemity between any of the accused

persons and the victim. Any motive is, therefore, ruled out. There was no

intention to kill as has been brought out by the learned Addl. Sessions Judge.

The accused persons were charged for an offence punishable under section

307 read with section 34 of the IPC but the Addl. Sessions Judge held them

accountable under section 326 read with section 34 IPC which is a lesser

offence, on the ground that Mohd. Shakeel had caught hold of Asgar Hussain

and Javed, who is stated to be absconding, inflicted the first injury, followed

by the injury inflicted by Firoz Khan. After considering the entire evidence,

the learned Addl. Sessions Judge has come to the conclusion that the

prosecution has been able to establish an offence punishable under section 326

read with Section 34 of the IPC against both the accused (appellants). He has

predominantly relied upon the testimony of the victim.

4. Taking the entire facts and circumstances and the evidence into account

and having regard to the rival contentions before me, it appears to me that the

learned Addl. Sessions Judge was right in convicting the appellants under

section 326 read with section 34 of the IPC. The testimony of the victim

Asgar Hussain has been found to be cogent, consistent and reliable by the

Addl. Sessions Judge. The learned counsel for the appellants has not been

able to make any dent into the same or the quality of the evidence or the

overall conclusion reached by the learned Addl. Sessions Judge. I accordingly

uphold the conviction.

5. However, coming to the sentence, I have taken note of the submissions

of the learned counsel for the appellants. Both the appellants appear to be

leading a normal and crime-free life. They have married and raised families.

They are also taking care of their parents. They are employed and are

supporting their families. Fourteen years have passed since the date of the

incident; there appears to be no complaint against the accused persons by any

one nor is there any evidence of their complicity in any criminal activities

during this period. It would appear that they have reformed and have been

able to assimilate themselves into the society and have also gained

acceptability which is the object of the conviction and the sentence. Both the

accused were awarded 5 years. While Firoz Khan has served a sentence of

more than three years, Mohd. Shakeel has served a sentence of less than one

year. However, there is a difference between the two in the sense that Firoz

Khan did inflict knife injuries on the victim whereas Mohd. Shakeel did not

inflict any injuries on the victim but was found to hold the victim while the

injuries were being inflicted. His role is not so grave as that of Firoz Khan.

Taking all these into account, I am of the view that the conviction should be

confined to the sentence already undergone by Firoz Khan and Mohd. Shakeel.

I reduce their sentence accordingly while maintaining the conviction.

The appeals are disposed of as above.

R.V.EASWAR, J FEBRUARY 7, 2013 hs