Ghan Shyam vs State Nct Of Delhi
2013 Latest Caselaw 5065 Del

$~R-6 to 9.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                      Judgment dated 6th November, 2013

+      CRL.A. 33/2005
       GHAN SHYAM                                            ..... Appellant
                              Through :     Mr.H.L. Pandey, Adv.

                              versus

       STATE NCT OF DELHI                                    ..... Respondent
                     Through :              Mr.Firoz Khan Ghazi, Adv.

+      CRL.A. 395/2005
       HIRA LAL                                              ..... Appellant
                              Through :     Mr.H.L. Pandey, Adv.

                              versus

       THE STATE NCT OF DELHI                   ..... Respondent
                     Through : Mr.Firoz Khan Ghazi, Adv.

+      CRL.A. 434/2005
       PRAVEEN KUMAR                                         ..... Appellant
                   Through :                Mr.H.L. Pandey, Adv.

                              versus

       STATE                                                 ..... Respondent
                              Through :     Mr.Firoz Khan Ghazi, Adv.

+      CRL.A. 516/2005
       SHIV KUMAR @ SHIVA                                            ..... Appellant
                    Through :               Mr.H.L. Pandey, Adv.

                              versus



CRL.A. Nos.33, 395, 434, 516/2005                                           Page 1 of 5
        THE STATE                                                 ..... Respondent
                              Through :   Mr.Firoz Khan Ghazi, Adv.

       CORAM:
               HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J. (ORAL)

1. The present appeals arise out of a common judgment dated 15.12.2004 and order on conviction dated 16.12.2004 passed by learned Additional Sessions Judge, Delhi, whereby the appellants have been directed to undergo Rigorous Imprisonment (RI) for four years with fine of Rs.1,000/-, each, and in default of payment of fine, Rigorous Imprisonment for three months for the offense punishable under Section 399 IPC. The appellants have further been directed to undergo RI for four years with fine of Rs.1000/-, each, and in default of payment of fine, three months RI for the offense punishable under Section 402 IPC. Besides, the appellant, Ghanshyam, has also been directed to undergo two years RI with fine of Rs.1000/- and in default of payment, three months RI for the offence punishable under Section 25, Arms Act. It was directed that all the sentences would run concurrently.

2. The necessary facts, to be noticed for disposal of the present appeals, are as under:

"6. On 12.9.97, at about 9 pm, secret information was received in police station Patel Nagar that seven boys present in Satya park, Pandav Nagar, were planning to commit dacoity in Loha Mandi at a place of a businessman. On this information, raiding party was organised under the leadership of ASI Satbir Singh which consisted of ASI Naseeb Singh, ASI Shatrughan, HC Sudesh Pal and Constables Prem Pal, Sherpal, Naresh, Ramakant, Suganpal,

Narender and Gangbir. They reached Satya Park in official vehicle at about 9.20 pm. Secret informer pointed out the persons sitting inside the park as those who were planning to commit dacoity. Thereafter, ASI Satbir Singh stealthily went near those persons and heard their conversation. He heard someone saying "LALA HAD PUT HIS MONEY IN BRIEFCASE AND WAS ABOUT TO LEAVE, HURRY UP, WE SHALL ROB HIM."

Thereafter, ASI Satibir Singh deployed his staff at different points.

No public person was available on account of late hours. Those persons were encircled and were warned not to make an attempt to escape. Thereafter, all six accused were apprehended but one person managed to escape whose name was subsequently learnt as "Munna". During his apprehension, accused Md.Miya took out his dagger and pointed it towards the police party but he was overpowered. All the six accused were searched and a loaded katta each were recovered from accused Ghamshyam and Rajesh and a dagger was recovered from the hands of accused Md. Miya. An iron rod each was recovered from accused Parveen, Hira Lal and Shiv Kumar. Their names and addresses were learnt subsequently. Thereafter, ASI Satbir Singh drafted rukka and got FIR No.825/97 registered u/s 399/402 IPC.

7. Since a desi katta each was recovered from accused Rajesh and Ghamshaym and a dagger was recovered from accused Md. Miya separate rukkas were prepared by ASI Naseeb Singh, HC Suresh Pal and ASI Shatrughan against accused Ghanshyam, Rajesh and Md. Miya and thereupon FIRs No.826-828 were registered u/s 25 and 27 of Arms Act respectively.

8. During investigation, all six accused were arrested, site plan was prepared and case property recovered from each accused was seized. Country-made pistols were sent for examination, results were collected and sanction u/s 39 of Arms Act were also obtained. Statements of witnesses were recorded and investigation was completed.

9. On completion of investigation, charge-sheet punishable u/s 399/402/34 IPC was filed against all six accused in the court of learned Metropolitan Magistrate on 6.10.97. Three separate charge- sheets were also filed against accused Ghanshyam, Md. Miya Meer and Rajesh under Arms Act."

3. Appellants - Ghan Shyam, Hira Lal and Praveen Kumar - are present in Court. They submit that they do not wish to contest the judgment on conviction but they pray that the sentence awarded to them be modified to the period already undergone by them.

4. Mr.Bhavnesh Kumar Sharma, learned counsel for the appellant, Shiv Kumar, in Cr.A.No.516/2005, has handed over his Memo of Appearance in Court. He submits that he has spoken to the appellant on his mobile no.9987809690 and obtained instructions from the appellant that he does not wish to press the appeal on merits and only prays that the order on sentence be modified to the period already undergone.

5. Learned counsel for the appellants submit that since the date of the incident i.e. 1997 till date the appellants have not been involved in any other criminal matter nor they have been involved in the past prior to 1997. It is further submitted that they are leading a normal life with their family members after bail was granted and they have joined the main stream of society and at this stage if they have to serve further sentence,

they are likely to lose their employment besides it would have an adverse effect on their family members. It is also stated that the appellants are the sole bread winners of their family.

6. I have heard learned counsel for the parties and considered their rival submissions. In the present appeals, the date of the incident is 12.9.1997. It may also be noticed that as per the nominal roll the appellant, Ghan Shyam, has served more than one year and nine months, besides remission earned; appellant, Hira Lal, has served one year, nine months and nineteen days as on 3.9.2006 besides remission; the appellant, Praveen Kumar, has served one year and twenty eight days besides the remission earned; and appellant, Shiv Kumar @ Shiva, has served two year, eight months and twenty eight days as on 28.9.2005 besides remission. Having regard to the facts that the appellants do not have any previous history of any criminal case against them, they have joined the main stream of society, they are married and have minor children and they are the sole bread winners of their family, in case the appellants are now directed to serve the sentence, not only would they would lose their employment but their family would also suffer. Accordingly, present appeals are partly allowed. The order on sentence is modified to the period already undergone by the appellants herein. Bail bonds stand cancelled and sureties stand discharged.

                                                                  G.S.SISTANI, J
NOVEMBER               06, 2013
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