Mohd. Vakil vs State Govt. Of Nct Of Delhi
2014 Latest Caselaw 433 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 16th January, 2014
                                DECIDED ON : 23rd January, 2014

+      CRL.A.1042/2012
       MOHD. VAKIL                                     ..... Appellant
                          Through :   Mr.Rajeev Kapoor, Advocate.

                          VERSUS

       STATE GOVT. OF NCT OF DELHI             .... Respondent
                     Through : Mr.Lovkesh Sawhney, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Mohd.Vakil (the appellant) questions the legality and

correctness of a judgment dated 31.03.2012 in Sessions Case No.137/11

arising out of FIR No.267/08 registered at Police Station Dabri by which

he was convicted for committing offences under Sections 395/412 IPC.

By an order on sentence dated 09.04.2012, he was awarded rigorous

imprisonment for ten years with fine `25,000/- each under Section 395

and 412 IPC. Both the sentences were to operate concurrently.

2. Allegations against the appellant were that on 12.05.2008 at

about 11.45 A.M. at house No.RZ-B-2, Raghu Nagar, Pankha Road,

Dabri, he and his associates committed decoity and deprived the

complainant Smt.Seema Sharma and her family members of cash and

gold/silver ornaments using deadly weapons. Daily Diary (DD) No.22

(Ex.PW-6/A) was recorded at 01.05 P.M. at Police Station Dabri

regarding the incident. The investigation was assigned to SI Narender

Singh who with Const.Amar Singh went to the spot. After recording

complainant-Seema Sharma's statement (Ex.PW-1/A) he lodged First

Information Report. Efforts were made to find out the culprits but in vain.

On 31.08.2008 SI Narender Singh received DD No.111-B (Ex.PW5/A)

dated 30.08.2008 which was recorded pursuant to the information

received from SOS/Crime Branch, Sunlight Colony, New Delhi informing

that one of the offenders namely Rajan Saha was arrested under Section

41.1(d) of Cr.P.C. and would be produced before Duty M.M. next day

i.e.31.08.08. It was further informed that Rajan Saha had made a

disclosure statement regarding his involvement in the decoity in question.

Accordingly Rajan Saha was arrested on 31.08.2008. When he declined

to participate in the TIP proceedings, he was taken on remand. TSR mini

door for `2,10,000/- and Hunk motorcycle for `59,000/- purchased out of

the booty in the name of his brother-in-law Manoj was recovered pursuant

to his disclosure statement. The looted mobile phone bearing IMEI

No.359945000295694 of make-Fly with sim No.9910211900 was also

recovered from him. He disclosed the names of the associates and it led

to the apprehension of Mohd.Shakil, Mohd.Vakil, Zaved @ Mukesh and

Guddu. They were also arrested and recoveries were effected at their

instance. Mohd. Vakil got recovered one countrymade revolver along

with three live rounds, one gold ring, two pairs of chutki and a pair of

small tops which were identified by the complainant. During the course

of investigation, statement of witnesses conversant with the facts were

recorded and after completion of investigation a charge-sheet was

submitted against all of them for committing offences under Sections

395/397/412 IPC and 25/27 Arms Act. Vide order dated 07.08.2009, the

appellant and his associates were charged under Sections 395/412/397/34

IPC. The prosecution examined 21 witnesses to prove the charges. In

313 statements, the accused persons denied their involvement in the crime

and pleaded false implication. Rajan Saha examined his brother-in-law

Manoj Kumar as DW-1 in defence. On appreciating the evidence and

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

impugned judgment convicted all of them under Section 395/34 IPC.

Rajan Saha, Aziz, Shakil and Vakil were also convicted under 412 IPC.

They were, however, acquitted under Section 397 IPC and the State did

not challenge the said acquittal. It is unclear if other convicts

Mohd.Jahangir Khan, Mohd.Shakil and Mohd. Aziz have challenged their

conviction.

3. During the course of arguments, appellant's counsel on

instructions stated at Bar that the appellant-Mohd Vakil has opted not to

challenge the findings of the Trial Court on conviction. He, however,

prayed to take lenient view as the appellant has already undergone

substantial portion of the substantive sentence awarded to him and is not a

previous convict. Learned Additional Public Prosecutor has no objection

to it.

4. Since the appellant-Mohd.Vakil has given up challenge to the

findings of the Trial Court on conviction under Section 395/412 IPC and

accepts it voluntarily in the presence of overwhelming evidence in the

statements of PW-1 (Seema Sharma), PW-2 (Rajbala) and PW-3 (Noor

Alam), inmates of the house, who identified him as one of the assailants

coupled with recovery of robbed articles at his instance, his conviction is

affirmed. The appellant was sentenced to undergo rigorous imprisonment

for ten years with fine `25,000/- each under Section 395/412 IPC.

Nominal roll dated 18.07.2013 reveals that he has suffered incarceration

for four years, eight months and eighteen days besides earning remission

for five months and nine days as on 15.07.2013. He is not involved in any

criminal case and his overall jail conduct was satisfactory. It is informed

that the appellant is a widower and has two minor sons aged 13 years and

7 years respectively. His younger son is handicapped and his three fingers

of one hand have been amputated. The appellant has lost his daughter

aged about 3 ½ years consequent upon the death of his wife. The children

are being looked after by his sister-in-law who has her four children to

take care of them. The appellant's mother is aged about 86 years and is

suffering from various ailments. Trial Court record reveals that during

trial Mohd.Vakil lost his wife on 10.01.2010. He was granted interim bail

for a period of ten days vide order dated 02.02.2010 to make arrangements

for his minor children and to perform final rituals. The interim bail was

extended subsequently twice. Nothing has revealed if the appellant

misused the liberty granted to him. The appellant has no criminal past

history/antecedents and was the first offender. Though the assailants were

armed with deadly weapons, however, no physical harm was caused to

any of the inmates. Considering these mitigating circumstances, the

substantive sentence of the appellant is reduced to seven years each under

Sections 395 and 412 IPC. Other terms and conditions of the sentence

order are left undisturbed except that the default sentence for non-payment

of fine of ` 25,000/-each under both the heads would be three months

each.

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

Court record be sent back immediately.

(S.P.GARG) JUDGE JANUARY 23, 2014 sa