Delhi District Court
As State Of U.P. vs . M.K. Anthony" Reported In Air 1985 Sc ... on 26 April, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 133/1/09
State
Versus
1- Mohd. Asif,
S/o Naim Ahmad,
R/o H. No. 35, Gali No. 7,
Jafrabad, Delhi.
2- Shakeel Shmad,
S/o Abdul Wahid,
R/o JB-6/191, Kabutar Market,
Seelampur Delhi.
3- Mohd. Arkan,
S/o Sattar Hussain,
R/o H.No. 559, Gali No. 24,
Jafarabad, Seelampur,
Delhi.
(i)Case arising out of FIR No. 314/2006
U/S: 392/397/34 IPC.
P.S. Lahori Gate
(ii) Date of FIR 21.7.2006
(iii) Date of Institution 12/11/07
(iv)Date of Final Arguments 12/04/10
(v) Judgment reserved on 12/04/10
(iv) Date of judgment 15.04.2010
JUDGMENT
The prosecution version as per deposition of PW4 Jai Ram Yadav that in the year 2006 , he was working as collection worker in Subham Chemicals and Solvent Ltd at 931, Gali Teliyan, Tilak Bazar, Delhi. On 21.7.2006, in between 5 pm to 6 pm , he had entered into h is aforesaid office after receiving/collecting payment on behalf of aforesaid company i.e. a sum of Rs. 3,09,727/- which was kept in h is drawer and locked. Thereafter, he went to Raj Sons Company at Tilak Bazar and from there he collected a sum of Rs. 70,000/- and came to his office and made call to Harmanjeet, Manager of their company to tell that he have collected S.C. No.133/1/09 Page1/18 the aforesaid payment. One person of their company used to come daily at their office to collect money from him. It was told by aforesaid Harmanjeet on phone that Jai Parkash is coming to collect the aforesaid amount from him. He was having bag containing a sum of Rs. 70,000/- went in a cabin of their office. As soon as he put his aforesaid bag containing aforesaid amount on his table of their office, three persons entered in the aforesaid cabin of their office. One of them put country made pistol on his left temple. Other two associates snatched the bag containing a sum of Rs. 70,000/- and third one took out a sum of Rs. 3,09,727/- from the drawer. Two assailants ran away from the spot alongwith aforesaid cash, bag, containing case and country made pistol. One assailant, who had put country made pistol on his temple tied his hands with the table of their office, after taking out the handkerchief from the pocket of his wearing pant. Assailant also used one handkerchief after taking out from his pocket. His pocket purse containing his driving license and some other documents and a sum of Rs. 110/- was taken out from his pocket. Third assailant was also ran away from the office. After 5 minutes Jai Prakash worker of their company came at their office. Before h is arrival he freed himself from the handkerchief. He narrated the aforesaid incident to Jai Prakash. He requested to inform about the incident to company owner Ajay Kapoor, Jai Prakash made call to Ajay Kapoor. After about ten minutes M.S. Arora, Harmanjeet Singh employees of their company at the spot. Sh. M.S. Arora made all at 100 number. Police came at the spot. Before arrival of police, one Ashok Bajaj, from whom he had brought a sum of Rs. 3.09,727/- Police official made interrogation from him and inspected the place of occurrence. Police recorded his statement Ex. PW4/A. PW Jai Ram Yadav also correctly identified all the three accused person by faces saying that they are persons who robbed him for the aforesaid amount on the date of incident on the point of country made pistols. Police had took into possession from the spot two handkerchief and one rope and one plastic bag having red colour slip one jeans pant vide seizure memo Ex. PW4/B. Police had brought accused persons at the spot during investigation near Diwali Festival of the year, where he had identified the accused persons. Police had prepared 3 documents which are Ex. PW4/C of accused Mohd. Asif, PW4/D of accused Mohd. Shakeel S.C. No.133/1/09 Page2/18 and PW4/E of accused Mohd. Arkan. The case property recovered from the accused is also identified by the witness.
It is further testified by PW15 SI Rajeev Shah that on 21/07/2006 while posted at PS Lahori Gate, on receipt of a call on his wireless in the area of Lahori gate he reached near shop no. 931 gali Teliyan Tilak Bazar. There complainant Jairam, Ajay Kapoor, SI Sukhdev and Constable Samerpal were present. On enquiry it was found three persons had looted cash from the shop after showing the country made kattas. SI Rajeev Shah recorded statement of Jairam Yadav Pw4/A and prepared Tehrir Ex Pw15/A and gave rukka to Constable Samarpal who went to PS for registration of the case. The Crime Team was called and inspected the place of incident, photographs were taken. Two chance prints were developed by the Crime team. At the instance of Jairam, SI Rajeev Shah prepared Site Plan Ex Pw15/B. From the spot and seized one white polythene carry bag of Anmol Suiting, one blue jeans pant, two handkerchiefs, one plastic stripes of packet and one dispensary slip which were seized vide seizure memo Pw4/B. The articles of serial no.2,3and 4 of the seizure memo were sealed in a Pulanda with the seal of SS. SI Rajeev Shah had recorded statements of witnesses but no accused could be arrested till investigation remained with him and after one month SI Rajeev Shah was transferred from PS Lahori Gate.
It is further testified by PW16 SI Yudhvinder Singh that on 28/10/2006 while posted at PS Lahori Gate, on receipt of a call from PS Badahindu Rao regarding arrest of the accused persons involved in the present case their production warrant was issued and accused persons were produced in court on 28/10/2006. After permission from the court all the three accused were arrested their names found as Arkan, Shakeel Ahmad and Asif alias Mohammad Asif. Their arrest memos Pw 8/D,8/E and 8/F prepared. Disclosure statements of accused persons Ex Pw8/A,8/B,8/C recorded. Accused persons were sent to Jail. On 08/11/2006 Police remand of all three accused persons was obtained. On 09/11/2006 the accused persons pointed out the place of incident shop no.931 gali Teliyan and pointing out memo Ex Pw4/C,4/D,4/E prepared. Complainant Jairam was present at the shop who identified all the three accused persons who had committed robbery in the shop on that day.
S.C. No.133/1/09 Page3/18Then joined Jairam in the investigation and went to Jafrabad but nothing was recovered from the Nala. Then they went to house no. JB6/191 kabutar market welcome and from the machaan of the house accused Arkan got recovered a purse of black colour containing a driving license and railway pass and some visiting cards which were all identified by the Jairam Yadav complainant. The recovered articles were sealed in a Pulanda with the seal of YS and memo Pw6/A prepared and recorded statement of witnesses. Thereafter investigation was transferred to SI Satish Bhardwaj.
It is further testified by PW20 Insp. Satish Bhardwaj that on 30/10/2006 while posted at PS Lahori Gate, he was given the investigation of this case and since the date for conducting the TIP was already fixed for 30/10/2006 he reached Tihar Jail and requested the Ld. Magistrate who fixed the matter for holding TIP on 06/11/2006, then again on 06/11/2006 he with the complainant Jairam Yadav reached at Tihar Jail and gave his application to Ld. Magistrate for holding TIP which is Ex Pw20/A. The Ld. Magistrate held the TIP proceedings and all the three accused persons namely Mohammad Asif, Shakil Ahmad and Mohammad Arkan. I had obtained copy of the TIP proceedings. Thereafter the investigation were again transferred to SI Yudhvinder Singh.
On 24.7.2006 mobile crime team was reached at the place of incident and developed the chance print Q-1,Q-2,Q-3 and prepared report Ex. PW5/A. Later on on comparison the chance prints of the spot found not identical. After completion of investigation challan was filed.
In view of he order dated 4.11.2008 a prima facie charge for offence punishable u/s 392/34 IPC was framed upon all the accused and offence 392 r/w section 397 IPC was framed upon accused Mohd. Asif and Shakil Ahmed. They pleaded innocence for the same and wanted to contest the charge.
In support of its case, prosecution examined 23 witnesses including the PW1 Harmanjit Singh, PW2 Jai Parkash, PW4 Jai Ram Yadav. The other witnesses are the police official who joined the investigation for one reason or for other and also deposed about the investigation and documents prepared during the course of investigation.
PW5 N.K. Sharma Finger Print Expert developed three chances S.C. No.133/1/09 Page4/18 print Q1, Q2 and Q3 an prepared report ex. PW5/A and reported that same are not identical.
PW1 Harmanjit Singh has deposed that he has been working as Manager in a firm namely Subham Chemicals and Solvents Ltd. Belonging to Sh. Ajay Kapoor and on 21.7.2006 at about 5.30 pm he had directed one Jai Parkash to collect money from Jai Ram at h is office NO. 931, Gali Teliyan Tilak Bazar as he have received a telephonic message that he is ready to pay a sum of Rs. 3,79,727/- At about 6.15 pm, he received telephonic information given by Jai Prakash that Jai Ram is inside h is office and he is tied with his table and an incident of robbery has been taken place with him. He passed the information to his employer Sh. Ajay Kapur. He rushed to the office of Jai Ram at Tilak Bazar as he was directed for the same by his employer Sh. Ajay Kapur. One Mr. Arora also accompanied with him. On reaching in the office of Jai Ram, he stated before them that he has been robbed by three persons and they had ran away alongwith the aforesaid cash at the point of country made pistols and he was tied by them with the table. Mr. Arora informed to the police about the incident. Police official came at the spot and they did their job.
PW4 Jai Ram Yadav have narrated the whole incident as mentioned in the preceding para of the judgment.
After conclusion of the prosecution evidence, statement of accused u/s 313 Cr.P.C was recorded. All the incriminating evidence come on record was put to the accused. The accused persons denied the same as false and incorrect. They do not want to lead any evidence in their defence and deposed that it is false case and they had been falsely implicated in this case.
I have heard Ld. APP for State, Ld. Counsel for accused person and also gone through the material on record.
Ld. Defence counsel submitted that weapon of offence has not been recovered from the person of accused nor any cash as alleged to have been robbed was recovered. The only purse and articles recovered from pointing of accused Mohd. Arkan. The incident was taken place on 21.7.2006 and intimation of the arrest of accused persons in P.S. Bara Hindu Rao was received on 28.10.2006. On 28.10.2006 the production warrants of all the three accused persons were obtained and they were S.C. No.133/1/09 Page5/18 arrested in this case. On 28.10.2006 after the disclosure statement of accused persons PW8/B,C and D which was recorded in police station Bara Hindu Rao for committing of the crime in the present case vide disclosure statement Ex. PW10/A to C dated 20 & 21.10.2006. Fire Arm used by accused persons was seized in FIR No. 280/06 vide seizure memo Ex. PW9/B and C as the accused persons were initially apprehended by P.S. Bara Hindu Rao. It is further contended that the accused persons were produced for judicial TIP however, they refused to join the judicial TIP with the allegation that they were shown to the witnesses prior to conducting of the judicial TIP. The PW4 Jai Ram Yadav stated that police has brought the accused persons at the spot when he identified the accused persons. PW1 Harmanjeet Singh , PW2 Jai Parkash came after the incident, however, their deposition are contrary with respect to the tied the hands of the accused with handkerchief in support of table. PW1 Harmanjeet Singh deposed that Jai Ram stated before him that he has been robbed by three persons and they had ran away alongwith the aforesaid cash on the point of gun and he was tied by the them with the table. And in the cross examination stated that when he reached in the office of Jai Ram Yadav at the time his hands were not tied and his hands were free. And he cannot say whether any ledger had been delivered to the police by their firm of not. They also used to deliver bill alongwith the goods. . Further PW2 Jai Paraksh stated that when he reached near complainant Jai Ram Yadav and saw his hands were tied with handkerchief. He enquired from him as to what happened. He stated that three persons robbed him at the point of country made pistol and they took cash approximately Rs. 3,79.700/-. In cross examination PW2 have stated that he himself did not inform to police immediately reaching at the spot though he was hearing his mobile phone. PW4 in his examination in chief have stated that one country made pistol on his temple was put by accused and tied his hands with the table of their office. Therefore, it is allegedly contended that there are material contradiction among the deposition of material witnesses and neither the accused was being got recovered with any cash nor any articles was recovered at their instance. Therefore, under these circumstances the accused persons are liable to be acquitted.
S.C. No.133/1/09 Page6/18Per contra Ld. Public Prosecutor has submitted the contrary version with submission that all the witnesses have identified the accused persons in their testimony as the person who committed the offence in question and they are liable to be convicted as per charges framed against them.
In the present case, it is alleged that through the accused persons have been apprehended by the P.S. Bara Hindu Rao and a portrait of accused persons have been prepared. PW17 SI Vimal Kumar has deposed that on 22.7.2006 he had taken one complainant Jai Kumar Yadav at the instance of SI Rajeev Yadav for making the portrait of the assailants at PHQ ITO. There at the instance of Jai Kumar three portraits were prepared by the officials of Portrait Branch. Thereafter he had brought to PS and gave to SI Rajeev. The accused persons were arrested by P.S. Bara Hindu Rao in FIR No. 280/06 and they have made disclosure statement for committing robbery in Gali Telian by using the fire arms. The fire arms which has been used was got recovered from the possession of accused persons when they have been apprehended by P.S. Bara Hindu Rao. On the basis of disclosure statement production warrants were taken and accused persons voluntarily taken their confessional statement and have also confessed the alleged incident by using the said arms and ammunition as got recovered from them. The deposition of PW Punit Jain cannot be ignored who deposed that on 20.10.2006 went to the house where the accused Shakeel and Asif were apprehended they have also admitted to commit the same crime in their house No. 1271 Faizganj, Bada Hindu Rao, Delhi and on the call of Amit Jai cousin brother , Punit Jain alongwith police, accused Shakeel and Asif were apprehended. One of the accused person has put a gun on his head and had collected all the jewellery articles from the house. His hands were also tied. Case was registered at P.S Bada Hindu Rao. From the possession of accused Shakeel and Asif one country made katta with a live cartridge each were recovered which were seized by the police vide seizure memo Ex. PW9/A and B. It is also revealed that the accused persons were habitual and in the habit of committing robbery and they have also committed robbery on 21.7.2006 at Gali Teliyan.
The accused persons were called to participate in Judicial TIP , S.C. No.133/1/09 Page7/18 however, they refused to participate in the TIP at the Central Jail where the complainant was also there. TIP proceeding are PW6/A. However, the test identification parade as such is not a substantive piece of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. The application of TIP was moved on 30.10.2006 there was unusual delay in holding the TIP. The practice of test identification parade as a mode of identifying an unknown person charged with an offence is an age old method and it has worked well for the past several decades as a satisfactory mode and a well founded method of criminal jurisprudence. It may also be noted that the substantive evidence of identifying witness is his evidence made in court but in cases where the accused person is not known to the witnesses from before who claimed to have seen the incident identification of the accused at the earliest possibly opportunity after the occurrence by such witnesses is of vital importance with a view to avoid the chance of h is memory fading away by the time he is examined in the court after some lapse of time.
The accused persons refused to participate in the TIP proceeding on the ground that they were produced in the court without muffled face and they have already been shown to the witnesses and later on they were produced in the muffled face. PW4 Jai Ram Yadav has not stated anywhere either in examination in chief or in cross examination that he has been shown earlier when the accused persons were produced in the court or police station and accused persons were shown at the time of conducting the TIP in the Central Jail. The incident was occurred on 21.7.2006, there was no occasion from 21.7.2006 to 20.10.2006 to be interacted between the accused and complainant. The complaint might have seen the accused persons in the PS during Dewali festival and the portrait of the accused persons have been given wherein description of the accused persons have been described by Jai Ram Yadav complainant. The accused persons have already been identified in the court by the complainant when their description and role as has been assigned to them while committing the crime. The PW4 Jai Ram Yadav categorically stated that he correctly identified three accused persons present in the court and they are the person who looted the aforesaid amount from him on the date of incident on the point of country made pistol.
S.C. No.133/1/09 Page8/18The other contention raised by counsel for the accused persons that the finger prints of the accused were not identical from the chance print as obtained from the place of crime. PW5 N.K. Sharma. Sr. Finger Print Expert has stated that he compared the finger prints of the accused with the chance print of the accused but the same was not found identical.
It has been a recognized principle of law in the administration of criminal justice that the confession of a co accused cannot be treated as substantive evidence and it can be pressed in service only in the case when the court is inclined to accept other evidence and yet feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. U/s 30 of the Evidence Act , the extra judicial confession made by a co accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against accused persons, the extra judicial confession made by co accused loses it significance and there cannot be any conviction based on such extra judicial confession. In case titled Haroom Haji Abdulla AIR 1968 SC 832: 1968 Cri LJ 1017, wherein it has been observed that " A confession of a co accused stands on a lower level than evidence of an accomplice because the latter( evidence of an approver) can be tested by cross examination here as the former is not. The statement contained in the confessions of the co accused persons stand on a different footing. In cases where such confessions are relied upon by the prosecution against an accused persons, the court cannot begin with the examination of the said statements. The stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory".
The accused persons have been apprehended on 20.10.2007 when after committing the robbery at Gali Telian. Thereafter three months when they reached at the house of Punit Jain. The weapon of offence was also recovered from then and confessional statement of accused persons was recorded. They made the confession, thereafter they got recovered the purse alongwith documents which belongs to the complainant and same is duly being identified by Jai Ram Yadav during the course of investigation. The chain of evidence in all respect is linked to each other S.C. No.133/1/09 Page9/18 one after the other from 20.10.2006 to way back to 21.7.2006 by making confession one after the other , pointing out the place of occurrence and got recovered the purse belonging to complainant as well as weapon as used in both the crime. The source of collection of the money on behalf of the complainant/PW4 Jai Ram Yadav has been deposed by PW Ashok Bajaj. PW1 and PW2 proved that PW4 Jai Ram Yadav deputed on behalf of the Shubham company to collect the payment when handed over Harmanjeet Singh through Jai Parkash.
The deposition of Jai Ram complainant have been corroborated by other prosecution witnesses. In such a circumstance it is not inclining to reject the evidence of the witness to be false and unreliable. Circumstantial evidence consisting the chain of evidence and taken into account all the commutative fact of the entire evidence led by prosecution to brought home the guilt of the accused persons. The prosecution witnesses narrated the incident in sequence as occurred there is no such mitigated circumstances and complainant Jai Ram Yadav has made a truthful version. I do not find any such material which fatal to the case of the prosecution. There is no evidence which totally demolish the case of the prosecution.
Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals as held by the Apex Court in case titled as State of U.P. Vs. M.K. Anthony" reported in AIR 1985 SC 48. As per the judgment passed in a case titled as "Shivappa Vs. State of Mysore" cited in AIR 1971 SC 196 the Apex Court has observed that :-"If there is other evidence to connect the accused with the crime itself, however, small, the finding of stolen property with him is a piece of evidence against him. In such a case presumption under Section 114(a) of the Evidence Act cannot be invoked. It is only when the accused cannot be convicted with the crime with the other evidence, then the presumption of Section 114(a) of the Evidence Act is attracted."
In another case titled as "Public Prosecutor Vs. Yerra Arjuna"
cited in 1998 Cr. LJ 179 (AP) it was held that :-"Recovery of ornaments of the deceased at the instance of the accused having been proved and there is nothing to connect him with dacoity and murder, the S.C. No.133/1/09 Page10/18 presumption under Section 114(a) can be raised against the accused to prove that it was the accused who was receiver of stolen goods knowing it to be stolen"
So far as, in respect of the charge u/s 397 IPC, it is essential to satisfy the word "uses" for the purpose of section 391 IPC, robbery being committed by an offender who was armed with a deadly weapon which was then in the vision of the victim shown as to create a terror in the mind of victim and in that it should be further shown, have been used for cutting, stabbing, shooting as the case may be. In Phool Kumar Vs Delhi Administration AIR 1925 SC 905 and Jung Singh Vs State of Rajasthan 1984 Crl. J. 1135, in these two cases it was held that "use of deadly weapon by one offender at the time of committing robbery does not attract section-397 for imposition of any minimum punishment for another offender who did not use such weapon and when the accused is charged U/s 395 read with 397 IPC for committing dacoity with attempt to cause grievous hurt, he cannot be convicted u/s 397 IPC only because one revolver had been recovered from the accused. This is no proof that he used the revolver while committing dacoity was charge u/s 397 will not attract. The provision postulates on only individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably neglects the use of the contradictive or vicarious liability engrafted in section 34 IPC.
In case titled Sh. Shravan Dashratha Vs State of Maharashtra 1998 Crl. J. 1196 Bombay. The Bombay High Court has held that liability u/s 397 IPC he individually and not contradictive and this would become crystal clear and analysis of the section 397 IPC, it is only when a person while committing dacoity or attempting to commit dacoity uses any deadly weapon or caused grievous hurt or attempts to cause death or grievous hurt to any person then that person will be guilty of section 397 IPC. When there is no evidence at the time of committing robbery the accused used any deadly weapon or caused any grievous hurt or made any attempt to cause death or grievous to any person who cannot be convicted u/s 397 IPC. The prosecution case is that it is the co-accused who inflicted the S.C. No.133/1/09 Page11/18 major injuries to the victim by committing high way robbery. Even though the accused participated in the case of robbery he did not commit any offence u/s 397 IPC and committing the offence U/s 392 and 394 IPC.
The section 390 IPC contemplates that the accused should have, from the very start, the intention to deprive the complainant of the property, and should for that purpose either hurt him or place him under wrongful restraint. The definition of "robbery" requires that either death or hurt or wrongful confinement is caused or it must be actually found that the victims were put in fear of instant death, instant hurt or instant wrongful confinement. In the absence of these findings and merely because the articles were removed from the persons of the victims when the accused were armed with lathis, does not by itself make out a case of robbery.
Where no force or show of force is found to have been used in the committing of theft, etc. the offence of robbery cannot be said to have been committed. If theft is already committed and violence is used to help an offender to escape, theft is not robbery. When two views are possible that violence was used either to help in removal of stolen article or to enable an offender to escape after commission of theft, the view favourably to the accused should be accepted. Accidental infliction of the injury by the thief will not convert offence into robbery that come under the definition of theft. The accused abandoned the property obtained by theft and through stones at his pursuer but determined him from continuing pursuit. It was held that the accused was guilty of theft and not for robbery. It is not sufficient that any transaction of committing theft, hurt etc. has been caused. If hurt etc. is caused at the time of commission of theft but for an object other than the one referred in this section theft would not amount to robbery. There is no rule of thumb that after the lapse of a long period the witnesses would in no case be able to identify the robbers they had seen in the course of robbery. The court has to be extremely cautious in appraising such evidence and the decision in each case must turn on its S.C. No.133/1/09 Page12/18 own special facts. Where the ocular witnesses had ample opportunity to notice and mark the special features of the miscreants and they had given some particulars of identify of the culprits in their statements to the police and they were not cross examined on this point vis-a-vis their police statements, the identity of the appellants as the robbers was established beyond reasonable doubt.
Therefore, the ingredients of section 392/397 IPC failed to be attracted. Only the recovery is being effected from the hands of the accused Arkan, therefore no doubt to be attracting to the prosecution section 411 IPC to the accused Arkan. Let we analyse the provision of 383 IPC which defines extortion as "whoever put a person in fear of injury, to that person or to any other person and thereby dishonestly induce the person to put in fear to deliver any person any property or valuable security or anything assigned or held, it may be confronted into valuable security, commits extortion". The same is also further explained through the illustrations under the facts of the circumstances of the present case. The threat or menace must be of such in nature an extent as to unstable the mind of the person on whom, it operates and takes away from his act. The element of free and voluntary action which alone constituted consent. The injury contemplated must be one which the accused had himself inflicted or caused to be inflicted. There must be intention to wrongful loss to the person who is extorted. Mere falsely taking of the property from another does not come under the definition. It must be shown that the person was induced to apart with the property to put in fear of injury as observed in 1970 Criminal Journal 647 PW4 stated that accused persons put a gun on his temple and robbed his money they used no force or cause grievous hurt nor have given any fist or leg blow or any kind of threat, therefore, in these circumstances provision of 384/34 IPC is attracted against all the three accused person.
S.C. No.133/1/09 Page13/18Hence in view of the above discussion and the evidence and circumstances the testimony of complainant is consistent with respect to the offence committed by the accused persons. the disclosure statement of accused persons as well as the testimony of PW9 Punit Jain proved the conduct of the accused persons and accused persons have also refused to participate in the TIP proceeding. Accused Arkan has got recovered the purse and contents from his house. Hence in view of above discussion, accused Mohd. Asif S/o Naeem Ahmed and Shakil Ahmad S/o Abdul Wahid are convicted for offence punishable u/s 384/34 IPC and accused Arkan S/o Sattar Hussain is convicted for offence punishable u/s 384/411 IPC.
ANNOUNCED IN THE OPEN COURT TODAY ON 15.04.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No.133/1/09 Page14/18 IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 133/1/09
State
Versus
1- Mohd. Asif,
S/o Naim Ahmad,
R/o H. No. 35, Gali No. 7,
Jafrabad, Delhi.
2- Shakeel Shmad,
S/o Abdul Wahid,
R/o JB-6/191, Kabutar Market,
Seelampur Delhi.
3- Mohd. Arkan,
S/o Sattar Hussain,
R/o H.No. 559, Gali No. 24,
Jafarabad, Seelampur,
Delhi.
FIR No. 314/2006
U/S: 392/397/34 IPC.
P.S. Lahori Gate
ORDER ON SENTENCE:
Present: Sh. Mukul Kumar, , Additional Public Prosecutor for State.
All convicts/accused from J/C with their respective counsels. The convicts/accused persons namely Mohd. Asif and Shakil Ahmad have been convicted for offence punishable u/s 384/34 IPC and accused Arkan has been convicted for offence punishable u/s 384/411 IPC vide separate detailed judgment dated 15.04.2010 .
I have heard submission of Ld. APP for State and counsel for accused persons on the point of sentence and carefully gone through the material on record.
Ld. APP for state submitted that prosecution proved its case against all the accused beyond all reasonable doubts and the testimony of all the prosecution witnesses inspire confidence, they are trustworthy and reliable. All the accused have not given any defense evidence to disprove the allegations made against them. As per the provision of 114 (a) of the Evidence Act "there are sufficient evidence against the accused persons S.C. No.133/1/09 Page15/18 to connect them with the crime itself. The accused persons have not given any proof of ownership over the case property. Therefore, they are liable to be convicted in accordance with law.
On the contrary, Ld. Counsel for accused persons that they have clean antecedents, they have not been previously convicted and they are young boys. It is further contended that accused Mohd. Arkan remained in J/C for about one year and six days, accused Mohd. Asif remained in J/c for about 5 months and 24 days and accused Shakeel Ahmad remained in J/C for about 6 months and 2 days. The offence u/s 392 and 397 IPC has not been proved against them and convicted for offence u/s 384/411/34 IPC. Therefore, prayed to released all the accused for the period of imprisonment already undergone by them during investigation, inquiry and trial of this case.
In view of the submissions made by the Ld. APP for state and counsel for convicted and the provision of law, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the S.C. No.133/1/09 Page16/18 basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. Therefore to consider the contention raised by Ld. Counsel for convicts , the accused persons had initially committed offence at Shop No. 931, Gali Telian, Tilak Bazar, Delhi and committed robbery of Rs. 3,79,727/- from the possession of Jai Ram Yadav. The accused persons against repeated the offence on 20.10.2006 at House NO. 1271, Batch 72, Faizgaj, Bada Hindu Rao, Delhi and t hey have been initially arrested and made disclosure statement. Therefore, it cannot be said that accused persons have been clean antecedent. Accused persons wer also involved in FIR No. 280/06 u/s 393/120B/34 IPC and 27 of the Arms Act of P.S. Bara Hindu Rao. Therefore to consider the background of the present case as well as the antecedent of the convicts they are sentenced for the period which they have already undergone and with fine of Rs. One Lakh each, in default of fine they will undergo SI for 3 months for the offence for wh ich they have been convicted. Like accused Mohd. Asif S/o Naeem Ahmed and Shakil Ahmad S/o Abdul Wahid are sentenced for the period of detention already undergone by them with fine Rs. One Lakh each, in default of of payment of fine both the said accused will also undergo SI for three months u/s 384/34 IPC. Similarly the accused Arkan S/o Sattar Hussain is sentenced for the period of imprisonment already undergone by him, during investigation, inquiry and trial of this case with fine of Rs One lakh in default of fine he will undergo Three Months SI for the S.C. No.133/1/09 Page17/18 offence u/s 384/411/34 IPC for which he is convicted. I think the sentence awarded to all the convicted shall meet the end of justice. Copy of this order as well as of judgment be given each of the accused free of cost. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 26.04.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No.133/1/09 Page18/18