Delhi High Court
Khalid vs State N.C.T. Govt. Of Delhi on 13 January, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 25th November, 2013
DECIDED ON : 13th January, 2014
+ CRL.A. 574/2001
KHALID ..... Appellant
Through : Mr.Izhar Ahmad, Advocate for the
appellant.
Versus
STATE N.C.T. GOVT. OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP for the State.
+ CRL.A. 869/2001
HAQIKAT ALI ..... Appellant
Through : Mr.Izhar Ahmad, Advocate for the
appellant.
Versus
STATE N.C.T. GOVT. OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP for the State.
+ CRL.A. 641/2001
ROHTAS KUMAR & ORS. ..... Appellants
Through : Mr.Izhar Ahmad, Advocate for the
appellants.
Versus
STATE N.C.T. GOVT. OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP for the State.
CORAM:
Crl.A.No.574-01, 869-01 & 641-01 Page 1 of 9
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Zakir Hussain (A-1), Rohtash Kumar (A-2), Khalid (A-3),
Karan Kapoor @ Karan Singh (A-4), Haqiqat Ali (A-5) and Nayum (A-6)
were arrested in case FIR No.275/97 by the police of Malviya Nagar and
sent for trial on the allegations that in the night intervening 11/12.03.1997
at T-456f, Chirag Delhi, at around 1.30 A.M. (night) they committed
decoity and deprived complainant-Joginder Singh and his family members
of cash `19,000/- and jewellery items consisting of three gold necklaces,
three gents rings, one ladies ring, three pairs of ear tops (gold), one chain
(gold) and four pairs of Paijebs (silver) and one hath-phool (silver). The
assailants used deadly weapons at the time of committing the crime. First
Information Report was lodged at 04.40 A.M. on 12th March, 1997 after
recording Joginder Singh's statement (Ex.PW-2/A). On 13.03.1997 at
about 04.20 P.M. A-1, A-2, A-3 and A-5 were arrested from DDA Park,
Sector 7, Pushp Vihar, New Delhi. Country made pistol from A-3's
possession and knives from the other accused persons were recovered.
A-3 was found in possession of a country made pistol whereas A-1, A-2
and A-5 were having knives at the time of their arrest. A-3 was also
found in possession of one necklace and `6,000/- and A-1 was having
`7,000/-. A-3 led the police to get arrest A-4 and from his possession one
gold chain and `5,000/- were recovered. Subsequently, pursuant to the
disclosure statement of A-1, two pairs of ear tops, two gold necklaces, one
gold ring, one hath phool (silver) were recovered from his village in U.P.
Statements of witnesses conversant with the facts were recorded. After
completion of investigation, a charge-sheet was filed against the accused
persons for committing offences punishable under Sections
395/397/412/120B IPC. The prosecution examined 14 witnesses to
establish their guilt. In their 313 statements, the accused persons pleaded
false implication. They examined DW-1 (Afrooz Ali), DW-2 (Zakir
Hussain), DW-3 (Mustahassan) and DW-4 (Pandit Budhi Sagar) in their
defence. On appreciating the evidence and after considering the rival
contentions of the parties, the Trial Court by the impugned judgment
dated 11.07.2001 in Sessions Case No.80/1997 convicted A-1, A-2, A-3,
A-5 and A-6 guilty for committing offences under Sections 395/34 IPC.
A-4 was convicted under Section 411 IPC only. By an order on sentence
dated 30.07.2001 A-1, A-2, A-3, A-5 and A-6 were awarded rigorous
imprisonment for seven years with fine `500/- each. A-4 was awarded
rigorous imprisonment for three years. It is relevant to note that the State
did not challenge the judgment. It appears that A-4 has not preferred
appeal.
2. I have heard the learned counsel for the parties and have
examined the record. During the course of arguments, appellants' counsel
on instructions stated at Bar that the appellants have given up their
challenge to conviction. However, they prayed to take lenient view as the
appellants have suffered incarceration for about five years and have no
previous criminal record. Learned Additional Public Prosecutor has no
objection to consider the mitigating circumstances to modify the sentence
order.
3. Since the appellants have opted not to challenge their
conviction under Section 395/34 IPC and there is overwhelming evidence
on record, their conviction under Section 395/34 IPC is affirmed. The
incident of decoity took place in the night intervening 11/12.03.1997 at
about 01.45 A.M. at house No. T-456f, Chirag Delhi. The inmates were
threatened with deadly weapons and directed to hand over the keys of the
almirah. The assailants deprived the inmates of `19,000/- and gold/silver
ornaments. After the decoity, the assailants tied hands of the inmates with
clothes and fled the spot. The police machinery was set into motion and
First Information Report was lodged without any delay at 04.40 A.M.
after recording Joginder Singh's statement (Ex.PW2/A). In the complaint
PW-2 (Joginder Singh) gave detailed account of the occurrence and
described the broad features of the intruders. Detail of articles robbed was
also given to the police. The police was able to arrest A-1, A-2, A-3 and
A-5 on 13.03.1997 at about 04.20 P.M. from DDA park, Sector 7, Pushp
Vihar, New Delhi. The Investigating Officer moved applications on
17.03.1997 for holding Test Identification Proceedings. The accused
persons declined to participate in the TIP proceedings. A-6 was arrested
on 16.09.1997 as he absconded at the initial stage of investigation.
Application was moved for conducting his Test Identification Proceedings
on 23.09.1997 and he also declined to participate in it. There was, thus,
no delay in holding Test Identification Proceedings in which the accused
persons refused to participate. They did not give cogent reasons for
declining to participate in the TIP proceedings. The Trial Court has dealt
with this aspect minutely in the impugned judgment and plea of the
accused persons that they were shown to the witnesses was outrightly
rejected. In their Court statements, PW-1 (Jaswanti), PW-2 (Joginder
Singh), PW-3 (Kamla) and PW-5 (Sunita) recognized and identified all
the assailants without any hesitation. There are no sound reasons to
discard their statements implicating the accused persons as none of them
was acquainted with them prior to the occurrence and they had no ulterior
motive to falsely rope in them and to let the real culprits go scot free. The
assailants had remained inside the house for about 45 minutes and had
direct confrontation with the inmates. They had clear and sufficient
opportunity to recognize and observe the broad features of the assailants
with whom they had direct confrontation. They also gave plausible
explanation that there was street light coming inside the house and they
were able to observe the faces of the assailants. It has also come on
record that the assailants had removed the bulb when it was switched on.
The accused persons did not specifically state as to when and to whom
they were shown at the time they were in custody of the police.
Moreover, robbed articles were recovered from their possession and it
corroborated the testimony of the prosecution witnesses referred above.
The impugned judgment is based upon fair appraisal of the evidence and
requires no intervention. Their conviction under Section 395/34 IPC thus
cannot be faulted.
4. A-1's nominal roll dated 10.04.2002 reveals that he has
suffered incarceration for five years and twenty five days as on
09.04.2002 besides earning remission for three months and twenty two
days. The unexpired portion of sentence was one year, seven months and
thirteen days. He was not involved in any criminal case and was not a
previous convict. A-2's nominal roll dated 10.04.2002 reveals that he has
suffered custody for five years and twenty five days as on 09.04.2002
besides earning remission for three months and twenty days. The
unexpired portion of sentence was one year, seven months and fifteen
days. He was also not involved in any criminal case and had clean
antecedents. A-3's nominal roll dated 23.11.2002 shows that he is in
custody for four years, six months and seven days as on 29.04.2002
besides earning remission for two months and ten days. The unexpired
portion of sentence was two years, three months and thirteen days. He
had no history of criminal case and was not a previous convict. A-5's
nominal roll dated 05.12.2001 reveals that he remained in custody for four
years, eight months and three days as on 30.11.2001 besides earning
remission for one month and four days. The unexpired portion of
sentence was two years, two months and twenty three days. He was not
involved in any criminal case and his overall jail conduct was satisfactory.
Nayum (A-6) nominal roll dated 10.04.2002 reveals that he suffered
incarceration for four years and six months and twenty three days as on
09.04.2002 besides earning remission for three months and twenty two
days. The unexpired portion of sentence was two year, one month and
fifteen days. He was not a previous convict and his overall jail conduct
was satisfactory.
5. Apparently none of the accused persons had criminal
antecedents and all were involved for the first time in the crime. Nothing
has emerged if after suspension of sentence and enlargement on bail in
2002 any of the accused persons indulged in any criminal activity or
misused the liberty granted. They have suffered ordeal of trial/appeal for
about 16 years. Though they were armed with deadly weapons, no injury
was inflicted to any inmate of the house. Another reason to take lenient
view is that the original record was untraceable. Attempts were made to
reconstruct the record, however, the entire original record could not be
reconstructed and statements of some witnesses recorded before the Trial
Court could not be brought on record to appreciate the prosecution case in
its entirety. Considering these mitigating circumstances, the sentence
order requires modification and the assailants who have suffered
substantial period of substantive sentence awarded to them require to be
released for the period already remained in custody by them.
Accordingly, while maintaining their conviction under Section 395/34
IPC their sentence is modified and the period already undergone by them
in this case is taken as their substantive sentence.
6. The appeals stand disposed of in the above terms. Trial Court
record be sent back immediately. Copy of the order be sent to
Superintendent Jail for information. Bail bonds and surety bonds stand
discharged.
(S.P.GARG)
JUDGE
JANUARY 13, 2014
sa
