Delhi High Court
Naeem @ Naimuddin vs State Nct Of Delhi on 22 September, 2017
$~15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 47/2017 & Crl.M(B) 1328/2017 (for regular bail)
% Date of Judgment: 22nd September, 2017
NAEEM @ NAIMUDDIN ..... Appellant
Through: Mr.K.Singhal, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Through: Ms.Radhika Kolluru, APP for the
State.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE CHANDER SHEKHAR
G.S.SISTANI, J. (ORAL)
1. The present appeal has been preferred under Section 374 of the Code of
Criminal Procedure (hereinafter referred to as 'Cr.P.C.') challenging the
judgment dated 16.02.2013 passed by the learned Trial Court whereby
the appellant Naeem alongwith other four co-accused have been
convicted under Section 395 read with Section 397 of the Indian Penal
Code (hereinafter referred to as 'IPC'). Challenge is also laid to the
order on sentence dated 28.02.2013 whereby the appellant Naeem was
sentenced to rigorous imprisonment for life for the offence punishable
under Section 395 read with Section 397 of IPC.
2. At the outset, it would be necessary to mention that the appeals
preferred by the other co-accused namely Mohd. Azad Alam, Mohd.
Arif, Shahjad and Sarfaraz @ Sonu bearing No's Crl. A.629/2013,
888/2013, 1132/2013 and 418/2014 respectively were decided vide a
separate judgment dated 01.09.2014 passed by a co-ordinate bench of
this Court.
3. The case of the prosecution as noted by the Trial Court reads as under:
"2. The case of the prosecution in brief is that on 04.02.2011
on receipt of DD No.76B, SI Umesh Rana along with Ct.
Manjeet reached at WZ 621, Gali No.2, Sri Nagar where the
complainant Amarnath Gupta met him who produced one
buttondar knife and informed that a robbery had been
committed at his shop and Rs. 30-35 thousand were robbed and
robbers left the knife at the spot. SI Umesh Rana prepared the
sketch of knife, sealed and seized the same. SI Umesh Rana
recorded the statement of Amarnath Gupta, prepared the rukka
and got the FIR registered through Ct. Manjeet and Crime
Team Official were also called at the spot who inspected the site
and took photographs.
(3) The complainant Amarnath Gupta showed CCTV
footages of various cameras installed in the shop to SI Umesh
Rana of the time of the incident on which SI Umesh Rana
directed Amarnath Gupta to preserve the CCTV footage about
the commission of offence and directed him to prepare the CD
of CCTV footage and handed over to him. Amarnath Gupta also
produced one shawl used by the robbers which was seized by
the SI Umesh Rana. The complainant Amarnath Gupta informed
the IO / SI Umesh Rana that on 04.02.2011 at about 9.45 PM he
was sitting on the counter of his shop with his servants Shyam
Bahadur and Vijay Bahadur when one person entered his shop
who was having a knife in his hand and had his face covered
with a handkerchief who put a knife on his back and asked him
to handover whatever he has. At the same time, another person
entered in the shop who was having a shawl around his body
and he attacked Vijay Bahadur and while first boy was keeping
the knife on his back on which his servant Shyam Bahadur had
caught hold that person and in this process Shyam Bahadur,
that boy and he (complainant) fell on the ground when at the
same time third boy entered the shop who was having a pistol in
his left hand and took out the cash from the Galla / cash box
and went towards the outside and in this process his servant
Vijay Bahadur had lifted a chair and threw the same on the
back of those persons as a result of which some money also fell
on ground but those boys finally succeeded in running away
from the spot. Thereafter a call was made at 100 number."
4. Charge under Sections 395/397/34 of IPC was framed against all the
accused persons namely Mohd. Azad Alam, Shahzad, Naeem @
Naimuddin, Mohd. Arif and Sarfaraz @ Sonu. Additionally, a charge
under Section 25 of Arms Act was also framed against the accused
Sarfaraz @ Sonu. All the accused persons pleaded not guilty and
claimed to be tried.
5. To bring home the guilt of the accused persons, the prosecution
examined as many as 15 witnesses. The statement of the appellant
Naeem was recorded under Section 313 of Cr.P.C. whereby it was
stated that he was innocent and had been falsely implicated in the
present case. He was lifted by the Police officials from the Rohini Court
Complex while he went to attend the Court proceedings in some other
matter. The appellant examined 3 witnesses in his defence.
6. Mr. K. Singhal, learned counsel appearing on behalf of the appellant
Naeem submits that the impugned judgment passed by the Trial Court
is based on surmises and conjectures. Learned counsel for the appellant
further submits that he had instructions not to argue the matter on the
conviction of the appellant Naeem and limits his argument to the
sentence only. It was contended that the quantum of sentence awarded
to the appellant Naeem under Section 395 read with Section 397 of IPC
is completely disproportionate to the alleged offence having been
committed. The counsel further submits that the appellant Naeem was
26 years of age at the time of the commission of the offence. He has a
family comprising of father, mother, two younger sisters and two
younger brothers. The crime was committed when he was in the prime
of his youth thus, there is a probability that the appellant Naeem can be
reformed and rehabilitated and prays for the lesser sentence.
7. Per contra, Ms. Radhika Kolluru, learned APP for the State submits
that there is no infirmity in the judgment and the order on sentence
passed by the learned Trial Court.
8. Counsel for the State submits that the case of the prosecution is duly
proved by the eye witnesses account of PW6, PW10 and PW11 who
have given a vivid description as to how the incident took place. It is
contended that the case of the prosecution has been duly proved by the
visuals of the CCTV footage. Having regard to the evidence on record,
the Trial Court has correctly analysed the evidence and convicted the
appellant Naeem and the other co-accused.
9. Ms. Kolluru highlighted the fact that the other co-accused in the present
case who were involved in the commission of the offence stand
convicted vide a separate judgment dated 01.09.2014 passed by this
Court.
10. We have heard the learned counsel for the parties, considered their rival
submissions and given our thoughtful consideration to the matter.
11. At the outset, we deem it proper to analyse the testimony of the
complainant Amar Nath who was examined as PW11 who deposed in
his examination-in-chief that his son Manoj (PW5) was running a
business of tobacco at WZ-621, Gali No.2, Shri Nagar, Rani Bagh and
he also used to sit at the same shop. On 04.02.2011 at about 9:45 PM,
PW11 alongwith his servants Shyam Bahadur (PW10) and Vijay
Bahadur (PW6) were present at the shop. PW11 further deposed that
one person whose face was covered with handkerchief and was armed
with a knife entered his shop. The person had put the knife on his back
and asked him to handover the things in his possession. Subsequently,
another person entered the shop whose body was covered with shawl
and was also armed with a knife. Thereafter, the second boy attacked
Vijay Bahadur (PW6) while the first boy kept the knife on his back. In
the meantime, the other servant namely Shyam Bahadur (PW10) caught
hold of one of the boys and in this process PW10, the boy and PW11
fell on the ground. It was further deposed by PW11 that at the same
time, the third boy entered the shop who was armed with a pistol and
took out cash from the cash box. In this process, Vijay Bahadur (PW6)
lifted a chair and threw the same on the back of those persons as a result
of which some money fell on the ground. All the boys fled away from
the spot but the knife which was put on the back of PW11 and the shawl
which was worn by the other person was left at the spot. Some public
persons made a call at number 100. Police came to the spot and
recorded his statement which was proved by him as Ex.PW11/A. The
knife and the shawl was handed over to the Police which was seized
vide memos Ex.PW11/B and Ex.PW7/B. PW11 correctly identified the
two accused persons in the Trial Court but failed to name them. The
Trial Court observed the names of the two accused persons as Sarfaraz
and Naeem (the appellant herein). PW11 identified the appellant Naeem
as the boy who kept a knife on him and co-accused Sarfaraz as the boy
who was having a shawl wrapped around him. PW11 also correctly
identified the knife as the same which was left at the spot by the
appellant Naeem and which was handed over by him to the
Investigating Officer. The shawl which was handed over by him to the
Investigating Officer was also correctly identified by him in the Trial
Court.
12. In his cross-examination, PW11 failed to name the person who made
the call at number 100. PW11 stated that he did not give any
information to the Police regarding theft of rupees one lakh at the time
when PCR call was made and had voluntarily explained that the said
information was given to the Police after their arrival at the spot. PW11
further stated that the Police had reached the spot after 4-5 minutes after
the call. Thereafter, the PCR officials left after about 5-7 minutes but
the local police remained till late at night and carried out the necessary
investigation. The statement of PW11 was recorded by the Police.
PW11 did not sustain any injuries during the incident. The entire
incident lasted for one to one and a half minute. The shawl was left by
the assailants near the counter of his shop. The knife and the shawl were
handed over by PW11 to the Police. It was observed by the learned
Trial Court that PW11 in his statement Ex.PW11/A, he had only
mentioned the fact regarding the robbery of the cash amount from the
cash box, but not regarding some amount having fallen down while the
boys were running away. It was admitted by PW11 that one incident of
dacoity had already taken place in his shop in the year 2005. It was
further admitted by PW11 that his family resides at the first floor of the
shop.
13. The next eye witness relied upon by the prosecution was PW6 Vijay
Bahadur who was working as a servant in the shop of PW11 on the
fateful night of the incident. PW6 deposed in his examination-in-chief
that he was working for the last ten years at the shop of PW11 Amar
Nath who was running a business of wholesale of Tobacco products. On
04.02.2011, he alongwith Shyam Bahadur (PW10) and Amar Nath
(PW11) were present at the shop. At about 9:45 PM, three boys came to
the shop. Initially one boy entered inside the shop, who was carrying a
knife. The said boy was followed by another boy who was having a
shawl wrapped around him and subsequently the third boy followed
them, who was armed with a pistol. The first boy put the knife on
PW11 Amar Nath, the second boy who was wearing a shawl pointed
the knife to him and PW10 Shyam Bahadur. When the third boy armed
with a pistol entered the shop, they started raising an alarm, whereupon
the shawl of the second boy slipped and fell down. PW6 recognised him
after falling of his shawl and hit him with a chair which was kept in the
shop. Thereafter, all the boys fled away from the shop. Learned APP for
the State in the Trial Court sought permission to ask leading questions
to PW6 whereby it was deposed by him that his statement was recorded
by the Police at the shop. PW6 admitted that he had stated to the Police
that the person who was carrying a pistol had removed the money from
the cash box. PW6 further admitted that he told the Police that four
boys had come to the spot and out of these two boys carried knives, one
of whom had shown the knife to him and the other had shown the knife
to PW10 Shyam Bahadur. The other boy armed with a katta was
standing outside and was the one who came inside the shop at last and
removed the money from the cash box. PW6 clarified that earlier he had
stated that three persons had entered the shop, as he could not see the
fourth one who was standing outside the shop. It was further deposed
by PW6 that he had informed the Police that out of the four boys, two
boys had covered their faces with handkerchief. PW6 identified co-
accused Shahjad in the TIP proceedings conducted at Tihar Jail. PW6
identified the appellant Naeem and other co-accused who were found
present in the Trial Court.
14. In his cross-examination, the following question was put to PW6 with
regard to the identification of the accused persons:
"Q: How could you identify the accused when their faces were
covered?
Ans: I could identify the accused because two boys had earlier
come on the pretext of making some purchases and when these
boys came later they were wearing the same clothes and one of
the boys who had covered his face with the shawl, I could
identify because during the altercation his shawl had fallen
down."
15. It was further stated by PW6 that the two accused had come about half
an hour prior to the incident which took place around 9.45 PM. The
accused had entered one by one in quick succession and not after any
gap of time. PW6 denied the suggestion that there were no chairs in the
shop and has voluntarily stated that he had hit one of the accused with a
chair.
16. Another eye witness of the incident was PW10 Shyam Bahadur who
was also working as a servant in the shop of PW11 Amar Nath. PW10
deposed in his examination-in-chief that on 04.02.2011 at about 9.45
PM, he along with PW11 Amarnath and PW6 Vijay Bahadur were
present at the shop. PW10 further deposed that five persons had entered
the shop, out of which one person entered with a knife and put it on the
back of PW11 Amar Nath and asked him to handover the things in his
possession. It was further deposed by PW10 that when he tried to
apprehend that person, at the same time, another person came in the
shop who was wrapped in a shawl and also armed with a knife caught
PW6 Vijay Bahadur. PW10 further deposed that he made the first
person lie on the ground and at the same time third person entered the
shop who was armed with a katta and took out money from the cash
box while the other two persons remained standing near the counter.
PW6 Vijay Bahadur had thrown a chair towards those persons as a
result of which some money fell on the ground and thereafter all the
five persons fled away from the spot. The assailants left a knife and a
shawl while they were fleeing away from the spot. PW10 identified all
the assailants thrice i.e. firstly; at the shop, secondly; at the Police
Station and thirdly; at the Trial Court. PW10 identified all the accused
persons by pointing towards them in the Trial Court. The APP for the
State sought permission to put leading questions to PW10 whereby it
was deposed by him that it was PW6 Vijay Bahadur who was present at
the shop and clarified that it was PW6 who lifted the chair and had
thrown the same towards the accused persons as a result of which the
two boys fell down.
17. The prosecution has been able to successfully establish that PW11
Amar Nath along with his son PW5 Manoj Kumar were running a
business of wholesale of Tobacco products at WZ-621, Gali No.2, Shri
Nagar, Rani Bagh and Shyam Bahadur (PW10) and Vijay Bahadur
(PW6) were employed in the said shop of PW11 Amar Nath. The four
CCTV Cameras were installed at the shop out of which Camera 1 and 2
i.e. CH-1 & CH-2 were installed at the shop on the front portion of the
building where the sale/purchase work was done and the camera 3 and
4 i.e. CH-3 & CH-4 were installed on the back portion of the building
which was used as a godown.
18. In the present case, the prosecution has been able to successfully
establish that the visuals retrieved from the CCTV footage recorded by
all the cameras i.e. CH-1, CH-2, CH-3 and CH-4 confirm the
involvement of the appellant Naeem alongwith other four co-accused
persons namely Mohd. Azad Alam, Shahjad, Mohd. Arif and Sarfaraz
@ Sonu and also confirm the use of knives and firearm during the
incident. It is further evident from the visuals of the CCTV that the
body language of the accused persons Mohd. Arif and Sarfaraz,
including the appellant Naeem at the time of the incident was highly
aggressive and fear provoking.
19. Reading the testimonies of the aforementioned witnesses alongwith the
entire evidence available on record shows that there are no material
contradictions which go to the root of the matter and their testimonies
remain consistent on all material particulars. The prosecution has
successfully proved its case against the appellant Naeem who entered
the shop armed with a knife and his face was covered with a small
handkerchief. The appellant Naeem put a knife on the back of PW11
Amar Nath and committed the charged offence with the other co-
accused. The prosecution has been able to conclusively prove the guilt
of the appellant Naeem beyond reasonable doubt. We find no infirmity
in the order of conviction passed by the learned Trial Court against the
appellant Naeem.
20. The question which arises for our consideration is as to whether the
learned Trial Court has awarded an adequate sentence to the appellant
Naeem or is it excessive and harsh?
21. Prior to dealing with the argument with regard to the quantum of
sentence awarded to the appellant Naeem is concerned, we deem it
appropriate to revisit the law relating to sentencing in a criminal case.
22. The Hon'ble Supreme Court in the case of State of Uttar Pradesh. v.
Sanjay Kumar, reported at (2012) 8 SCC 537, discussed the need of
sentencing policy for guiding the unfettered judicial discretion and lack
of uniform and equal treatment of similarly situated convicts. The Court
also discussed the principle of proportionality and the criminal
background of the convict while determining the sentence of the
accused. The relevant para 21 reads as under:
"21. Sentencing policy is a way to guide judicial discretion in
accomplishing particular sentencing. Generally, two criteria,
that is, the seriousness of the crime and the criminal history of
the accused, are used to prescribe punishment. By introducing
more uniformity and consistency into the sentencing process,
the objective of the policy, is to make it easier to predict
sentencing outcomes. Sentencing policies are needed to address
concerns in relation to unfettered judicial discretion and lack of
uniform and equal treatment of similarly situated convicts. The
principle of proportionality, as followed in various judgments of
this Court, prescribes that, the punishments should reflect the
gravity of the offence and also the criminal background of the
convict. Thus, the graver the offence and the longer the criminal
record, the more severe is the punishment to be awarded. By
laying emphasis on individualised justice, and shaping the
result of the crime to the circumstances of the offender and the
needs of the victim and community, restorative justice eschews
uniformity of sentencing. Undue sympathy to impose inadequate
sentence would do more harm to the public system to undermine
the public confidence in the efficacy of law and society could
not long endure under serious threats."
(Emphasis Supplied)
23. In the case of State of M.P. v. Ghanshyam Singh, reported at (2003) 8
SCC 13, the Apex Court listed various offences including the offence of
Dacoity which has a great impact on the social order and public interest
and require exemplary treatment. The Supreme Court also noted the
rights of the victim of the crime and the society at large. The relevant
paras 17 to 19 read as under:
"17. Imposition of sentence without considering its effect on the
social order in many cases may be in reality a futile exercise.
The social impact of the crime e.g. where it relates to offences
against women, dacoity, kidnapping, misappropriation of public
money, treason and other offences involving moral turpitude or
moral delinquency which have great impact on social order and
public interest cannot be lost sight of and per se require
exemplary treatment. Any liberal attitude by imposing meagre
sentences or taking too sympathetic a view merely on account of
lapse of time in respect of such offences will be result wise
counterproductive in the long run and against societal interest
which needs to be cared for and strengthened by a string of
deterrence inbuilt in the sentencing system.
18. In Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC
220, this Court has observed that a shockingly large number of
criminals go unpunished, thereby increasingly encouraging the
criminals and in the ultimate making justice suffer by weakening
the system's credibility. The imposition of appropriate
punishment is the manner in which the court responds to the
society's cry for justice against the criminal. Justice demands
that courts should impose punishment befitting the crime so that
the courts reflect public abhorrence of the crime. The court
must not only keep in view the rights of the criminal but also the
rights of the victim of the crime and the society at large while
considering the imposition of appropriate punishment.
19. Similar view has also been expressed in Ravji v. State of
Rajasthan (1996) 2 SCC 175, It has been held in the said case
that it is the nature and gravity of the crime but not the criminal,
which are germane for consideration of appropriate punishment
in a criminal trial. The court will be failing in its duty if
appropriate punishment is not awarded for a crime which has
been committed not only against the individual victim but also
against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but
it should conform to and be consistent with the atrocity and
brutality with which the crime has been perpetrated, the
enormity of the crime warranting public abhorrence and it
should "respond to the society's cry for justice against the
criminal". If for the extremely heinous crime of murder
perpetrated in a very brutal manner without any provocation,
most deterrent punishment is not given, the case of deterrent
punishment will lose its relevance."
(Emphasis Supplied)
24. We may note that a coordinate bench of this Court, of which one of us
(G.S. Sistani, J.) was a member, in the case of Arun Kumar Mishra vs.
State reported at 2017 SCC Online Del 10815 and Ramjee Lal v. State
(Govt. of NCT) Delhi reported at 241 (2017) DLT 290, discussed the
sentencing policy in detail.
25. As far as the sentence of the appellant Naeem is concerned, the
following aggravating factors were relied upon by the learned Trial
Court which read as under:
i) The incident of dacoity was committed after sunset during night
hours;
ii) The appellant Naeem had criminal antecedents and was
declared as Bad Character (BC) of the area;
iii) Whenever the appellant Naeem was released on bail, he was
invariably found involved in some other criminal case;
iv) The attack was made at the shop of PW11 Amar Nath who was
a senior citizen of 71 years of age.
26. Thus, after consideration of the criminal antecedent of the appellant
Naeem alongwith other aggravating circumstances enumerated
hereinabove, the learned Trial Court has awarded a harsh and stern
punishment of rigorous imprisonment for life under Section 395 read
with Section 397 of IPC.
27. It is reflected from the order dated 24.07.2017 passed by this Court that
the State has been directed to provide the current status of the cases
pending against the appellant Naeem. The State has submitted a status
report dated 20.09.2017 which was filed under the signature of the SHO
Police Station Subhash Place. The relevant part reads as under:
S.No. FIR No. Police Station Unde r Sections Curre nt Status of the
case
1 36/2011 Saraswati Vihar 395/397/34 IPC
& 25/27/54/59
Convicted
Arms Act
2 814/2006 Saraswati Vihar 457/511/34 IPC Convicted and undergone
3 285/2007 Saraswati Vihar 25 Arms Act Convicted and undergone
4 673/2006 Saraswati Vihar 25 Arms Act Convicted and undergone
5 217/2005 Saraswati Vihar 379/411/34 IPC Convicted and undergone
6 216/2008 Saraswati Vihar 457/380/411 IPC Convicted and undergone
7 1094/2006 Saraswati Vihar 457/380/411 IPC Convicted and undergone
8 06/2004 Saraswati Vihar 457/380 IPC Convicted and undergone
9 248/2004 Jahangir Puri 411 IPC Pending Trial
10 384/2003 Saraswati Vihar 379 IPC Pending Trial
11 792/2006 Saraswati Vihar 379/34 IPC Pending Trial
12 362/2007 Moti Nagar 457/380/411 IPC Pending Trial
13 1127/2005 Saraswati Vihar 25/54/59 Arms Pending Trial
Act
14 285/2007 Parshant Vihar 25 Arms Act Pending Trial
15 216/2006 Saraswati Vihar 25Arms Act Pending Trial
16 1110/2006 Samai Pur Badli 399/402 IPC Pending Trial
17 1096/2006 Ashok Vihar 457/511/34 IPC Pending Trial
18 412/2007 Parshant Vihar 379/411/34 IPC Pending Trial
19 1043/2007 Parshant Vihar 379/411 IPC Pending Trial
20 160/2005 Parshant Vihar 379 IPC Pending Trial
21 554/2007 South Rohini 379/411 IPC Pending Trial
22 28/2005 Parshant Vihar 379 IPC Pending Trial
23 428/2003 Parshant Vihar 379/411 IPC Pending Trial
24 1094/2006 Parshant Vihar 457/380 IPC Pending Trial
25 16/2005 Parshant Vihar 379 IPC Pending Trial
26 217/2005 Parshant Vihar 379 IPC Pending Trial
27 81/2008 Hauz Khas 392/34 IPC Pending Trial
28 46/2008 Keshav Puram 379 IPC Pending Trial
28. Reading of the status report would show that the appellant Naeem is
involved in 28 criminal cases filed at various Police Stations and under
different Sections of IPC as enumerated above. Out of 28 cases, the
appellant Naeem has been held guilty under 13 cases and a total of 6
cases were pending adjudication before the concerned Court. In this
backdrop, on a conjoint reading of the eye witnesses account of PW6,
PW10 and PW11, the aggravating circumstances relied by the learned
Trial Court extracted in the aforegoing para and the status report
tendered by the learned counsel for the State that the appellant Naeem is
a hard core criminal against whom various criminal cases are pending,
we reach the inescapable conclusion that the appellant Naeem does not
have clean antecedent. The submissions advanced by the learned
counsel for the appellant Naeem are unfounded.
29. After consideration of all the aggravating factors noted by the Trial
Court we find that the Trial Court imposed a sentence befitting the
crime. It is the nature and gravity of the crime, and not the criminal,
which are germane for consideration of the appropriate punishment in a
criminal trial. Imposition of sentence without considering its impact on
social order may be in reality, a futile exercise. The sentence imposed
upon the accused must reflect public abhorrence of the crime.
30. Having regard to the nature of the offence and the manner in which it
was executed or committed and the pendency of the criminal cases
pending against him, we concur with the findings of the learned Trial
Court. Undue sympathy to the appellant Naeem will diminish the public
confidence in the justice delivery system.
31. Applying the law laid down in the aforesaid judgments to the facts and
circumstances of the present case, we find no infirmity in the order on
sentence passed by the learned Trial Court. Accordingly, the appeal
stands dismissed.
32. Copy of this judgment be sent to the concerned Jail Superintendent for
updating the jail record.
33. Trial Court record be sent back along with a copy of this judgment.
Crl.M(B) No. 1328/2017
34. In view of the judgment passed, the bail application stands dismissed.
G.S.SISTANI, J.
CHANDER SHEKHAR, J.
SEPTEMBER 22, 2017
//-
