Ramdhani vs State, Nct Govt.Of Delhi
2013 Latest Caselaw 1276 Del

$-33
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      DECIDED ON : 14th March, 2013

+                         CRL.A. 54/2006

       RAMDHANI                                        ..... Appellant

                          Through :   Mr.Anuj Kr.Ranjan, Advocate.


                          versus

       STATE, NCT GOVT.OF DELHI                        ..... Respondent

Through : Mr.M.N.Dudeja, APP.

CORAM:

HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Open Court)

1. The appellant- Ramdhani challenges judgment dated

18.12.2004 and order on sentence dated 03.01.2005 in Sessions Case

No.89/2001 arising out of FIR No.281/2001 PS Shalimar Bagh by which

he was convicted for committing offence punishable under Section 397

IPC and sentenced to undergo RI for seven years with fine ` 1,000/-. He

was further convicted under Section 25/27 Arms Act and sentenced to

undergo RI for two years with fine ` 500/-.

2. Allegations against the accused were that on 05.05.2001 at

09.20 A.M. at Tikona Park, Pitam Pura, he and his associates- Mahender,

Santosh Kumar Aggarwal @ Bhaiya and Pappu robbed complainant-

Khairatilal of his scooter bearing No. DL 1SK 2623 containing ` 60,000/-

. The assailants were armed with weapons. The prosecution examined

eleven witnesses to substantiate the charge. In his 313 statement, the

accused pleaded false implication. On appreciation of the evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment convicted Ramdhani and Mahender under Section

397 IPC. However, Santosh Kumar Aggarwal and Pappu were acquitted

of all the charges. Being aggrieved Ramdhani has preferred the appeal.

3. During the course of arguments, learned counsel for the

appellant on instructions from the appellant- Ramdhani stated that the

appellant has opted not to challenge the conviction under Section 397 IPC

and under Section 25/27 Arms Act. He however, prayed for modification

of the order on sentence as the appellant has already undergone sentence

for about more than 3 years.

4. I have considered the submissions of the parties and have

examined the Trial Court record. Since the appellant has not opted to

challenge the findings of the Trial Court on conviction under Section 397

IPC and under Section 25/27 Arms Act, the order of conviction of the

Trial Court stands affirmed.

5. Regarding order on sentence, it transpires that the appellant-

Ramdhani was sentenced to undergo RI for seven years. Vide order dated

21.07.2006, substantive sentence was suspended and he was admitted to

bail. Nominal roll received from jail reveals that he had already undergone

imprisonment for about 3 years and 6 months including remissions out of

total imprisonment of seven years. The appellant was not involved in any

other criminal case. His overall conduct in the jail is satisfactory. The

appellant has remained on bail for the last seven years. Nothing has come

on record that during this period he indulged in any other criminal act or

misused the liberty. No useful purpose will be served to send the appellant

to jail again to undergo the remaining period of sentence. There are

peculiar facts and circumstances of the case to modify sentence. The Trial

Court Record was not traceable despite best efforts. The statements of the

witnesses recorded by the Trial Court could not be reconstructed. In the

absence of statements of the prosecution witnesses, it is highly difficult to

appreciate the evidence. Learned APP has no objection if the power under

Section 482 Cr.P.C is exercised and the minimum sentenced awarded to

the petitioner/appellant RI for seven years is reduced to the period already

undergone by him in this case. Considering the peculiar and special

circumstances where the original record is not available and taking into

consideration all the facts and circumstances recorded above, for special

and adequate reasons, the order on sentence is modified and the appellant

is sentenced to undergo the sentence for the period already undergone by

him in this case.

6. Since the appellant has been released for the sentence already

undergone by him, he need not surrender before the Trial Court/Jail

Superintendent.

7. Copy of this order be sent to Jail Superintendent, Tihar Jail

for information.

8. Trial Court record, if any, be sent back forthwith along with

copy of this order.

9. The appeal stands disposed in the above terms. Bail bond and

surety bond of the appellant stand discharged.

(S.P.GARG) JUDGE

MARCH 14, 2013 tr