Delhi High Court
Asgar vs State on 20 March, 2015
$~R-28/29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 261/2011
Decided on 20th March, 2015
ASGAR ..... Appellant
Through : Mr. Rashid Hashmi, Adv.
Versus
STATE ..... Respondent
Through :Mr. Amit Ahlawat, APP with SI
Mahendra Pratap, P.S. Narela, Outer
Distt. Delhi
AND
+ CRL.A. 262/2011
SHAMSHER ALI ..... Appellant
Through : Mr. Rashid Hashmi, Adv.
versus
STATE ..... Respondent
Through :Mr. Amit Ahlawat, APP with SI
Mahendra Pratap, P.S. Narela, Outer
Distt. Delhi
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.(ORAL)
1. Appellants have been convicted by the trial court under Sections
Crl. Appeal 261/2011 Page 1 of 6
392/34 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo
rigorous imprisonment for four years with fine of `2,000/- each and in
default of payment of fine, simple imprisonment for two months each.
Benefit of period already undergone by them during the trial under Section
428 Cr.P.C. has also been extended to them. Aggrieved by their conviction
as also the sentences, appellants have preferred the above noted appeals.
2. Prosecution story as unfolded is that on 15th June, 2005 at about 5 PM
appellants boarded an auto rickshaw bearing registration no. DL1-RH-0743,
driven by the complainant Vipin Kumar Sharma and asked him to take them
to old Delhi Railway Station. On the way, they asked the complainant to
stop auto rickshaw and robbed `230/- from him at the point of knife and
thereafter, ran away. Appellants were apprehended on 16th June, 2005. TIP
was not got conducted. Knife was also not recovered from them.
3. Appellants were sent up to face trial by filing a charge-sheet in the
Court of Metropolitan Magistrate under Sections 392/397/342/411/34 IPC.
Case was committed to the Sessions Court since offence under Section 397
IPC is exclusively triable by the Sessions Court. On 26 th November, 2005
trial court framed charges under Sections 392/342/34 IPC against the
appellant Shamsher Ali and charges under Sections 392/397/342/34 against
Crl. Appeal 261/2011 Page 2 of 6
the appellant Asgar. Appellants pleaded not guilty to the charges framed
against them and claimed trial.
4. Complainant Vipin Kumar Sharma was examined as PW3.
Investigating Officer, namely, Sub Inspector R.C. Dahiya was examined as
PW6. All other witnesses examined, are the police officials, having joined
the investigations at one or the other stage of the investigation. PW1 HC
Rajpal is the Duty Officer and had recorded FIR Ex. PW1/A on the rukka
sent by PW6 SI R.C. Dahiya. After prosecution concluded the evidence,
statement under Section 313 Cr.P.C. of the appellants were recorded,
wherein entire incriminating evidence, which had come on record, was put
to them. Appellants denied the allegations against them and claimed
themselves to be innocent. They claimed that they were falsely implicated
in this case.
5. Trial court has found the testimony of PW3 to be trustworthy and
reliable. PW3 narrated the incident in the manner as has been described in
the FIR, inasmuch as identified the appellants to be the same persons, who
had robbed him of `230/-. Trial court has concluded that testimony of PW3
was reliable to prove the ingredients of offence under Sections 392/34 IPC
beyond shadow of reasonable doubt. Trial court has concluded that
Crl. Appeal 261/2011 Page 3 of 6
appellants had robbed PW3 Vipin Kumar Sharma. As regards use of knife
is concerned, same has not been accepted since weapon, allegedly used in
the robbery, was not recovered inspite the fact that appellants were arrested
on the very next day. Resultantly, appellants have been convicted under
Sections 392/34 IPC.
6. During the course of hearing, learned counsel for the appellants has
given up challenge to the conviction under Sections 392/34 IPC on merits. I
have also perused the trial court record, more particularly, the statement of
PW3 and am of the view that his testimony to the effect that appellants had
robbed `230/- from him has remained unshattered in his cross-examination
and has rightly been accepted by the trial court. PW3 was a stranger for the
appellants. There is no reason as to why complainant would have implicated
the appellants, had they not robbed him on the fateful day. Be that as it may,
since conviction of the appellants has not been challenged, conviction of the
appellants under Sections 392/34 IPC is confirmed.
7. Learned counsel for the appellants has contended that appellants have
no previous criminal record. During the trial as well as during the pendency
of appeals, appellants have remained on bail for a considerable long time
and they have not indulged themselves in other crime. Appellant Asgar has
Crl. Appeal 261/2011 Page 4 of 6
remained in jail for about 2½ years. He has a family, which is solely
dependent upon him. Appellant Shamsher Ali has remained in incarceration
for more than 1½ years. He also has a family, which is wholly dependent
upon him. Appellants have reformed themselves as they have not indulged
in any crime after their involvement in the present case.
8. Learned APP submits that sentences awarded by the trial court are
proportionate to the offence committed by them and is not on a higher side
and need not to be interfered with.
9. I have considered the rival contentions of both the parties and am of
the view that sentences of the appellants can be reduced to the period
already undergone by them, more particularly in view of the fact that
appellants have no previous criminal record, inasmuch as they have not
indulged in any other crime, after their involvement in this case, though they
have remained on bail for quite a long time. The purpose of awarding
substantive sentence of imprisonment is two fold. It is punitive as well as
reformative. Appellants have remained in incarceration for about two
years. Their jail conduct had been satisfactory. They have not involved
themselves in any other crime except their involvement in this case. This
reflects that they have reformed themselves. Accordingly, sentences of
Crl. Appeal 261/2011 Page 5 of 6
appellants are reduced to the period already undergone by them. Personal
bonds and surety bonds are discharged.
10. Appeals are disposed of in the above terms.
A.K. PATHAK, J.
MARCH 20, 2015
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