Hafizur Rehman @ Nadeem vs State
2014 Latest Caselaw 1923 Del

$~R-68 & 69

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on :16.4.2014

+    CRL.A. No.208/2006

     HAFIZUR REHMAN @ NADEEM                             ..... Appellant

                          Through      Appellant with his counsel Mr.
                                       Mohit Popli, Adv.

                          Versus

     STATE                                             ..... Respondent

                          Through      Ms. Fizani Hussain, APP

+    CRL.A. No.308/2007

     NADEEM                                            ..... Appellant

                          Through      Mr. Jiwan Pal Singh, Adv.

                          Versus

     STATE                                            ..... Respondent

                          Through      Ms. Fizani Hussain, APP

     CORAM:
     HON'BLE MS. JUSTICE INDERMEET KAUR

     INDERMEET KAUR, J (oral)

     1      There are two appellants before this Court namely Hafizur

Rehman and Nadeem. They have been convicted by the Sessions

Judge under Sections 392/394 read with Section 34 of the IPC

and each of them had been sentenced to undergo RI for a period

of 5 years for the offence punishable under Section 392/34 of the

IPC besides a fine of Rs.2,000/- and in default of payment of fine

to undergo RI for a period of 6 months; for the offence under

Section 394/34 of the IPC, each of the two convicts had been

sentenced to undergo RI for a period of 3 years and to pay a fine

of Rs.1,000/- and in default of payment of fine to undergo RI for

3 months. Benefits of Section 428 of the Cr.PC have been granted

to the convicts.

2 Nominal rolls of the appellants have been summoned. They

disclose that Hafizur Rehman has suffered incarceration for about

2 years and 9 months (which includes the remission period) as on

the date when he was granted bail; convict Nadeem has

undergone incarceration of 3 years and 11 months including

remission.

3 The incident is dated 23.10.2003. The complainant was

Pankaj examined as PW-14. He has on oath, reiterating the

averments made in his complaint (Ex.PW-14/A), stated that the

two accused persons had committed robbery in his house; at

about 05:00 PM when he was sitting with his friend Amit Sharma

(PW-13) and watching TV, the door bell rang; Amit opened the

door. Two persons entered the room of whom one was Nadeem

and other was Hafizur Rehman; they gave beatings to PW-14 and

to his friend PW-13 and demanded money from them; PW-14

was given fist blow on his upper lip; his almirah key was

snatched and a black rexine bag containing Rs.6,500/- was taken

away. On raising alarm, the shopkeepers around the area tried to

apprehend the accused persons. They managed to flee but the

black bag containing the money was left at the place of the

incident.

4 During the course of investigation, the accused persons

were apprehended. The line of investigation started from the two

mobile phones which had been robbed of the victim i.e. a Sony

Ericsson and a Motorola. Muneer Khan (PW-3) a shopkeeper in

Gaffar Market had disclosed that Motorola mobile phone had

been sold to him by Hafizur Rehman. Accused persons were

thereafter apprehended on 10.12.2003 i.e. almost 1- ½ months

after the date of the incident. Accused Hafizur Rehman had been

identified in the TIP proceedings; co-accused Nadeem had

refused TIP. Another incriminating piece of evidence relied upon

by the prosecution against the accused was chance print of left

middle finger of accused Hafizur Rehman proved in the report of

the finger print expert (Ex.PW-18/A).

5 On the basis of the aforenoted evidence collected by the

prosecution, the accused persons had been convicted and

sentenced as aforesaid.

6 At the outset, learned amicus-curiae appearing for both the

accused persons have tendered detailed arguments. Appellant

Hafizur Rehman is also present in Court. After some arguments,

learned counsel for the appellants state that in case this Court is

not inclined to interfere in the merits of the case, they pray for a

leniency in the sentence; submission being that out of total 5

years of incarceration ordered against each of them, appellant

Hafizur Rehman has already undergone a sentence of about 3

years whereas appellant Nadeem has already undergone sentence

of almost 4 years. It is stated that presently the accused persons

are on bail and both of them have a family to support and are

doing fruitful work. Appellant Hafizur Rehman who is present in

Court states that he is doing the work of printing in Sadar Bazar at

a salary of Rs.6,500/-. Both of them have families to look after

and in case they are ordered to be re-incarcerated, their families

would be on the verge of starvation.

7 After perusal of the record and noting the contentions and

submissions made by the learned counsel for the parties, this

Court is not inclined to interfere with the conviction of the

appellants which is maintained both under Sections 392 and 394

read with Section 34 of the IPC. The victim Pankaj had received

injuries. Accused Hafizur Rehman had been identified in the TIP

proceedings; co-accused Nadeem had refused TIP for which an

adverse inference had been drawn against him by the trial Court

and rightly so. The chance print (Ex.PW-18/A) evidencing the left

middle finger of convict Hafizur Rehman on the spot of incident

also speaks volumes against Hafizur Rehman. Role and

complicity of both the accused has been established.

8 However, keeping in view the period of time since which

the trial is on i.e. almost one decade as the incident relates to the

year 2003; parties have undergone not only the long and

emotional trauma of trial but also the fact that they have remained

in jail for the period as aforenoted; one of the object of penal

punishment also being reformative, this Court, at this stage,

would not be inclined to re-incarcerate the appellants who even in

the jail had a satisfactory conduct as is reflected from the nominal

rolls.

9 Accordingly, while maintaining the conviction, both the

accused are sentenced to the period already suffered by each of

them; there is however a modification in the fine; the earlier fine

which had been imposed by the trial Judge and has been paid

remains unaltered; each of the convicts shall however pay an

additional fine of Rs.10,000/- to the State within a period of one

week failing which they shall undergo SI for a period of 3

months.

10 With these directions, these appeals are disposed off.

INDERMEET KAUR, J

APRIL 16, 2014 A