Sher Mohammad @ Shera vs State
2014 Latest Caselaw 1930 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   DECIDED ON : APRIL 16, 2014

+                          CRL.A. 209/2011
       SHER MOHAMMAD @ SHERA
                                                          ..... Appellant
                          Through : Mr.Kunal Aurora counsel for Ms.Anu
                                   Narula, Advocate.
                          versus
       STATE
                                                       ..... Respondent
                          Through : Mr.Lovkesh Sawhney, APP for the
                                   State.
CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. The appellant-Sher Mohammad @ Shera has preferred the

present appeal to challenge the correctness of a judgment dated

20.05.2010 in Sessions Case No.1033/09 arising out of FIR No.533/05

registered at police station Keshav Puram. By an order dated 04.06.2010,

the appellant was sentenced to undergo RI for five years with fine

`5,000/- under Section 363 IPC; and RI for ten years with fine `10,000/-

under Section 364-A IPC.

2. Allegations against the appellant, as set up in the charge-

sheet, were that on 01.11.2005 he kidnapped Sanskar @ Shishu aged

about four years, son of his employer Pramod Kumar Goyal, for ransom.

Daily Dairy (DD) No.30 was recorded when missing person report was

lodged and efforts were made to find out the child but in vain. On the

statement of complainant- Pramod Kumar Goyal, First Information Report

was lodged. The complainant suspected the involvement of his servant-

Sher Mohammad @ Shera who used to take the child for a walk in the

crime. The child was searched at the native village of the appellant but

could not be traced. On 02.11.2005, Pramod Goyal received a call from

phone No.05922-262512 on his telephone No.9811239738 and the caller

demanded `1 lac from him to release the child. At about 01.30 p.m.

Pramod Goyal again received a call from telephone No.5922-265017 and

the caller asked him to reach alone at Opposite New Collectorate Amroha

with `1 lac. During this conversation, the complainant identified the

voice of the caller to be that of Sher Mohammad @ Shera. Thereafter, a

trap team was laid and the appellant-Sher Mohammad @ Shera was

apprehended at village Jalalpur Bagrau. He recovered the child from

village Masibi which was about 5 km away. During investigation,

statements of witnesses conversant with the facts were recorded. After

completion of investigation, a charge-sheet was filed against the appellant;

he was duly charged and brought to trial. The prosecution examined 14

witnesses to substantiate its case. In 313 statement, the accused denied his

complicity in the crime and claimed innocence. He alleged that he was

falsely implicated as his salary was not paid on demand by the

complainant. After considering the rival contention of the parties and

evaluating the evidence on record, the trial court by the impugned

judgment held the appellant guilty for committing offences under Sections

363/364A IPC and sentenced him accordingly. Being aggrieved and

dissatisfied, the appeal has been preferred.

3. During the hearing of the appeal, appellant's counsel on

instructions stated at Bar that the appellant has opted not to challenge the

findings of the trial court on conviction. Prayer was made to modify the

sentence as the appellant is not a previous convict and has remained in

custody for substantial period. The learned APP agrees to it.

4. Since the appellant, who has been produced in judicial

custody pursuant to issuance of production warrant, has given up

challenge to the findings on conviction under Section 363/364A IPC

voluntarily in the presence of overwhelming evidence of the complainant

coupled with recovery of the child, his conviction is affirmed. Nominal

roll dated 07.04.2014 reveals that the period already undergone in custody

is eight years, five months and four days besides remission for one year,

five months and sixteen days. The unexpired portion of sentence was one

month and ten days on that day. The sentence order dated 04.06.2010

reveals that the appellant was a young boy of 25 years and was working in

a band party at the time of incident. He has a family comprising of widow

aged mother, wife, five brothers and one married sister. He is a first time

offender and is not involved in any other criminal case. No harm was

caused to the child. His jail conduct was satisfactory. He has already

served the substantial period of substantive sentence. As on 07.04.2014,

the unexpired portion of sentence was one month and ten days.

Considering these circumstances, the period already undergone by the

appellant in this case is taken as substantive sentence and Sentence order

is modified accordingly to that extent.

5. The appeal stands disposed of in the above terms. Copy of

this order be sent to the concerned Jail Superintendent for information and

necessary action. Trial court record be sent back along with a copy of this

order.

(S.P.GARG) JUDGE APRIL 16, 2014/sa