Delhi High Court
Mohammad Nair vs State (N.C.T. Of Delhi) on 19 July, 2013
Author: S. P. Garg
$-48
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 19th JULY, 2013
+ CRL.A. 844/2011 & CRL.M.A. 10515/2013
MOHAMMAD NAIR ..... Appellant
Through : Ms. Arundhati Katju, Advocate.
versus
STATE (N.C.T. OF DELHI) ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Open Court)
1. Mohd.Nair (the appellant) impugns a judgment dated
17.02.2011 of learned Additional Sessions Judge in Sessions Case No.
105/2008 arising out of FIR No. 74/2007 PS J.P.Kalan by which he was
convicted under Sections 323/395 IPC. By an order dated 19.02.2011, he
was sentenced to undergo RI for five years with fine ` 10,000/-.
2. Allegations against the appellant were that on the night
intervening 15/16.05.2007 at about 11.00 P.M. he and his associates
Mohd.Tehkhan (since PO), Mohd. Shahnawaj Alam and Mohd.Chunna
(both facing trial before Juvenile Justice Board) and other 5 - 6 associates
barged into the fields of Naresh Kumar with common intention to steal the
CI Pipes kept in the godown. Naresh Kumar was sleeping on the roof of
the godown. Chet Ram, Ramashish, Avdesh and Vinod were sleeping in
the room below. The assailants on arrival near the godown gave beatings
to the labourers, locked them in the room and started loading pipes in the
truck bearing registration No. DLIM-2599 make Tata. Naresh Kumar
woke up and ran into the village to seek assistance of the villagers. When
they reached the spot, the assailants started fleeing in different directions.
They were apprehended. A knife, a chura, an iron rod and wooden rods
were recovered from their possession. The Investigating Officer recorded
statements of the witnesses conversant with the facts during investigation.
After completion of investigation, the accused were charge-sheeted. The
prosecution examined fourteen witnesses to prove the guilt of the accused.
In their 313 statements, they pleaded false implication. On appreciating
the evidence and after considering the rival contentions of the parties, the
Trial Court, by the impugned judgment, held Mohd.Matin, Mohd. Nair
and Mohd.Tassivul guilty for committing the various offences and
sentenced them. Being aggrieved, the appellant- Mohd. Nair has preferred
the appeal.
3. During the course of arguments, Mohd.Nair's counsel on
instructions stated at Bar that he (Mohd.Nair) has opted not to challenge
the findings of the Trial Court by which he was convicted under Sections
323/395 IPC. She however, prayed to take lenient view and to release the
appellant as he has served substantial portion of the sentence awarded to
him.
4. Since the appellant (Mohd.Nair) has opted not to challenge
conviction under Sections 323/395 IPC and accepts it, the findings of the
Trial Court on conviction qua him are affirmed.
5. The appellant was sentenced to undergo SI for one year
under Section 323 IPC and RI for five years with fine ` 10,000/- under
Section 395 IPC. Nominal roll dated 03.07.2013 reveals that he has
already undergone three years, one month and eight days incarceration as
on 29.06.2013. He also earned remission for eight months and sixteen
days. The unexpired portion of sentence is one year, two months and six
days. It further demonstrates that he is not a previous convict and is not
involved in any other criminal case. His overall jail conduct is
satisfactory. Application moved by him for release reveals that he is the
only bread earner in the family and is to take care of his wife and three
children. Due to poverty no family member was in a position to visit him
in jail for the last more than one year. Taking into consideration all these
mitigating circumstances, modifying the order on sentence, the appellant-
Mohd. Nair is sentenced to undergo RI for four years with fine ` 1,000/-
and failing to pay the fine to undergo SI for fifteen days.
6. The appeal stands disposed of in the above terms. Pending
application also stands disposed of. Copy of the order be sent to the
appellant through Superintendent jail for information.
(S.P.GARG)
JUDGE
JULY 19, 2013
tr
