Delhi District Court
State vs . Mohd. Asif on 29 October, 2009
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
Case ID Number 0240IR1209172008
Session Case No. 05/08
Assigned to Sessions 05.11.2008
Arguments concluded on 28.10.2009
Date of Order 29.10.2009
FIR No. 175/08
Police Station Kashmere Gate
Under Section U/s 392/397 IPC and U/s
25/54/59 Arms Act
In the matter of:
State Vs. Mohd. Asif
S/o Ajeev Ahmed
R/o H. No.5410, Chadhaiwali
Tonalwali Chowk, Kucha Rehman,
Chandni Chowk, Delhi.
J U D G M E N T
1. The above named accused was booked by SHO PS Kashmere Gate U/s 392/397 IPC and U/s 25/54/59 Arms Act with the allegations that on 24.06.2008 at about 10.00 p.m at Boulevard Road near Flyover Bathroom, Local Bus Stand ISBT, Kashmere Gate accused Mohd Asif alongwith his two associates namely Shah Nawaz and Kasim (both were not arrested) in furtherance of their common intention committed robbery on the person of complainant namely State Vs. Mohd. Asif Page No. 1 of pages 26 Sudhir Kumar S/o Sh. Pal Singh and robbed his purse containing Rs.200/, ICard and other personal belongings alongwith one mobile phone and while committing the said offence of robbery, he used a deadly weapon i.e. a button operated knife by putting the same on the neck of the complainant to threaten him in order to rob.
2. FACTUAL MATRIX: It is the case of the prosecution that on 24.06.2008 ASI Manohar Lal during patrolling reached at local bus stand, where he met Ct. Ved Prakash and they both reached at Boulevard Road near Toilet, where Ct. Azad Singh alongwith Ct. Hari Om met them and produced accused Mohd. Asif alongwith a purse containing Rs.200/ and an identity card of complainant and a knife by stating that these articles were recovered from the possession of accused Mohd. Asif. Complainant Sudhir Kumar was also produced before him and accordingly ASI Manohar Lal recorded his statement alleging therein that on 24.06.2008 at about 10 PM he returned from Barnala Punjab and got down at ISBT Delhi as he had to go to Ghaziabad. When he was moving towards the local bus stand to catch the bus and reached at the toilet near local bus stand in front of Boulevard Road Flyover, State Vs. Mohd. Asif Page No. 2 of pages 26 he saw that three boys were chasing him. Near the toilet on seeing him alone, one boy put the knife on his neck and other boy started saying take out whatever you possess. They took out his mobile and purse containing Rs.200/, his card and some other papers, which were lying in the upper pocket of his shirt and started running towards ring road. He raised the noise for the help and started following the accused persons. In the meanwhile two police officials came on their motor cycle and he narrated the incident to them, who caught one of the boy at the spot after about 5060 steps. The other two boys made to slip away from there. During interrogation the said boy disclosed his name as Mohd. Asif S/o Ajeev Ahmed, R/o 5410, Chadhaiwali Tonalwali Chowk, Kucha Rehman, Chandni Chowk, Delhi. The search of said boy was conducted by the police and his purse, containing Rs.200/, his card and some other papers, was got recovered from him and disclosed that the mobile phone he handed over the mobile phone while escaping to his other companion. One buttondar knife was also recovered from the possession of the accused. The sketch of the knife was prepared on a white paper. The police seized the aforesaid purse and knife. ASI Manohar Lal inspected the spot and State Vs. Mohd. Asif Page No. 3 of pages 26 prepared the site plan. Statements of the witnesses were recorded. Accused Mohd. Asif disclosed the names of his other two companions as Kasim and Shah Nawaz but he did not know their addresses. Then accused Mohd. Asif was arrested in this case. Then on completion of investigation, charge sheet was filed before the concerned Ld. Metropolitan Magistrate, who after completing the committal proceedings, sent the case to the Sessions for trial as the offence alleged is exclusively triable by the court of sessions.
3. After hearing the rival submissions of both the sides, a charge U/s 392/397/411/34 IPC and U/s 25 Arms Act was framed against the accused Mohd. Asif, to which he pleaded "not guilty" and claimed "trial".
4. In its support, the prosecution has examined as many as eight witnesses.
5. PW--1 Sudhir Kumar while corroborating with the story of prosecution confirmed that on 24.06.2008 at around 10.00 p.m when he was moving towards local bus stand at ISBT and reached near the toilet he saw three boys chasing him and out of them one boy put the knife on his neck and other boy started asking him to take out State Vs. Mohd. Asif Page No. 4 of pages 26 whatever he possessed. He further stated that they snatched his mobile phone and purse containing Rs.200/ cash, card and some other papers which was lying in the upper pocket of his shirt. He raised noise for help while following them, who were running away towards other directions. Two police officials came on motorcycle and apprehended one of them, whereas two other boys got success in slipping away. The accused present in the court, who was apprehended at the spot from whose possession his purse containing Rs,.200/, I Card and other documents were recovered on taking his search. One knife was also recovered from his possession. Police seized the purse and knife in one parcel. Thereafter, the accused was brought in the police station. This witness identified the case property i.e. light yellow colour purse Ex.P1, containing two notes of Rs.100/ denomination, one Icard of the complainant bearing his photograph and five loose papers which all are collectively Ex.P1. This witness also identified the buttondar knife Ex.P2 which was seized from the possession of the accused. He further stated that the mobile phone which was robbed was in the name of his friend Sunny Kumar and its number was 9915471920 and make was Nokia. He proved the State Vs. Mohd. Asif Page No. 5 of pages 26 sketch of knife Ex.PW1/B bearing his signature at point A. He confirmed that the recovered knife was seized by IO vide memo Ex. PW1/C and the accused was arrested and his personal search was conducted vide memo Ex.PW1/D and E. During crossexamination he however could not specify as to who amongst the three boys had put knife on his neck nor he could specify as to who had snatched his purse from his pocket. He conceded that he had not seen the faces at the time when the knife was put to his neck. Other two accused made to slip due to darkness.
6. PW--2 Head Constable Kishan Lal, Duty Officer has proved the FIR Ex.PW2/A by producing its original. He also produced the endorsement at the rukka Ex. PW2/B.
7. PW--3 Sh. Anil Yadav proved the notification dated 17.2.1979 regarding spring actuated knives, gararidar knives, button knifes etc. which opens and closes with any mechanical device with length and breadth as per notification under reference, copy of which is Ex.PW3/A.
8. PW--4 Head Constable Azad Singh confirmed that on 24.6.2008 when he was at patrolling duty on Sugar 91 motorcycle State Vs. Mohd. Asif Page No. 6 of pages 26 along with motorcycle rider Ct. Hari Om, he heard the noises "Chor Chor". He chased them, who were in 34 numbers and out of them one was apprehended, who is accused present in court. His search was conducted and from his right pocket one knife was recovered and two notes of Rs.100/ denomination were recovered from his pocket. He informed the Police station and IO ASI Manohar Lal came to the spot. Recovered knife was seized. Site plan was prepared. He proved the seizure memo Ex.PW4/A and identified his signatures on memos Ex.PW1/B, Ex.PW1/E, Ex.PW1/F, Ex.PW2/D and Ex.PW2/E at points B. He also identified and proved the knife Ex.P2 which was recovered from the possession of accused. He confirmed that the place of incident was Boulevard Road flyover near public toilet where one person was raising alarm "ChorChor" while following three boys. He confirmed that the boy, who was apprehended is accused present in court who was carrying one purse in his right hand and while running, he had handed over the mobile to the other boy, who was running with him and who made to skip from the spot. He also confirmed of having recovered the buttondar knife from the left side pocket of the pant of Mohd. Asif. He could not tell, if the sketch of the State Vs. Mohd. Asif Page No. 7 of pages 26 knife was prepared or the length of the same was measured. He further confirmed that the purse which was recovered from the possession of accused was containing two notes of Rs.100/, one I Card and few papers and same was kept in the same purse and the purse was seized after sealing it in a cloth parcel and sealed with the seal of MLJ. This witness also identified the case property collectively Ex.P1 i.e. purse containing two notes of Rs.100/ denomination, one I Card of complainant, five loose papers and one photograph of the complainant lying in the purse.
During cross examination he conceded that the distance between two boys running ahead and followed by one, who was caught, was 3035 yards. There was no bushes or shrubs in the park alongwith the side of which the boys were running. He however, stated that accused did not make any disclosure statement in his presence.
9. PW5 Ct. Mahavir Prasad is the formal witness, who brought the summoned record i.e. DD No.27 PP ISBT dated 24.06.2008 and proved the same as Ex.PW5/A.
10. PW6 Ct. Ghanshyam is also a formal witness, who also State Vs. Mohd. Asif Page No. 8 of pages 26 brought the summoned record i.e. DD No.58B PS Kashmere Gate and proved the same as Ex.PW6/A.
11. PW7 Ct. Ved Prakash testified that on 24.06.2008 at about 10.00 pm, he was present at bus stand ISBT, Kashmere Gate, where he met with ASI Manohar Lal, who was on patrolling duty and he joined him for patrolling. When they reached public toilet near ISBT Flyover, they met with HC Azad Singh, Ct. Hari Om, accused Mohd. Asif and complainant Sudhir Kumar. Before their arrival, from accused Mohd. Asif, one brown colour purse containing Rs.200/, one ICard and one knife was recovered. Statement of the complainant was recorded by ASI Manohar Lal. Knife as well as the recovered purse with the money and ICard were seized in separate pullandas which were sealed with the seal of MLJ. Rukka was prepared by the IO and was handed over to him for registration of case and after registration of case, he returned with the copy of FIR and original complaint and his statement was recorded.
During cross examination conceded that the recovery was already effected from the accused before their arrival at the spot.
12. PW--8 ASI Manohar Lal, IO of the case, testified that on State Vs. Mohd. Asif Page No. 9 of pages 26 24.06.2008, he alongwith Ct. Ved Prakash were on patrolling duty in the area of ISBT and at about 10.10 p.m when they reached Boulevard Road near sulabh sauchalaya, they met HC Azad Singh alongwith Ct. Hari Om, who produced accused Mohd. Asif alongwith a purse containing Rs.200/ and an identity card of complainant and a knife by stating that these articles were recovered from the possession of accused Asif. Complainant Sudhir Kumar was also present there. He recorded the statement of complainant Sudhir Kumar Ex.PW1/A and prepared the sketch of buttondar knife Ex.PW1/B and converted the same into a parcel with the help of white cloth and sealed with the seal of MLJ and seized the same vide memo Ex.PW1/C. He conceded that the length of the knife, length of blade, length of handle and width of blade was 23.5 cm, 10.5 cm, 13 cm and 2.5 cm respectively and it was made of steel. The purse was also converted into parcel alongwith its contents and identity card of the complainant with the help of white cloth and sealed with the seal of MLJ and seized the same vide memo Ex.PW4/A. He made endorsement on rukka Ex.PW 8/A and sent Ct. Ved Prakash to PS Kashmere Gate for getting a formal FIR registered, who returned at State Vs. Mohd. Asif Page No. 10 of pages 26 the spot alongwith copy of FIR and original rukka after getting a formal FIR registered and handed over the same to him. He interrogated accused Mohd. Asif, who made disclosure statement Ex.PW1/F. He also prepared site plan Ex.PW8/B at the instance of Sudhir Kumar and arrested accused vide memo Ex.PW2/D and conducted his personal search vide memo Ex.PW2/E. He recorded the statements of witnesses and then after completion of investigation challan was filed. He correctly identified the case property collectively Ex.P1 as the same which was handed over to him by HC Azad Singh. i.e. purse containing therein two currency notes of Rs.100/ denomination, one identity card of Sudhir Kumar and five loose papers. He also identified by the weapon of offence i.e. buttondar knife Ex.P2 as the same which was handed over to him by HC Azad Singh.
During cross examination he conceded that he did not recover any articles from the possession of accused. The place of incident was a crowded area and people were coming and going but no public person was joined at the time of investigation. The accused was sent to JC on 25.06.2008 at his request and he applied for the production of accused to seek police remand on 26.06.2008, to which State Vs. Mohd. Asif Page No. 11 of pages 26 three days police custody remand of accused w.e.f 03.07.2008 to 05.07.2008 was granted by the court. He also conceded that the co accused, who were with accused Mohd. Asif could not be arrested till date as they did not have their addresses and only names of co accused were disclosed by Mohd. Asif. He conceded that he had discussed this case with his senior officers and on their advise he sought police custody remand of accused Mohd. Asif even after obtaining judicial custody remand. He further conceded that generally police custody remand of accused is taken and thereafter, accused is sent to judicial custody. He further conceded that accused is not involved in any other criminal case except this case.
13. After conclusion of prosecution evidence, accused Mohd. Asif was examined u/s 313 Cr.P.C. and in his statement he denied the story of the prosecution and claimed that he has nothing to do with the alleged offence and has been falsely implicated in this case by the police by lifting him from his house. He was arrested in this case falsely at the instance of Kasim and Shahnawaz, who were also apprehended by the police in this case but later on set free.
14. I have carefully heard the rival submissions of Sh. State Vs. Mohd. Asif Page No. 12 of pages 26
Nawabuddin, Ld. counsel for accused and Ms. Alka Goel, Ld. Addl. PP for the State. I have also perused the entire material placed before me.
15. It is the case of the prosecution that the accused Mohd. Asif alongwith his two companions had robbed off the complainant from his belongings i.e. mobile phone, a purse containing cash amount of Rs.200/, ICard and other personal belongings on the point of buttondar knife. On raising alarm by the complainant, the accused persons and companions were chased by the two police officials, who were passing through the area and the accused was apprehended alongwith the knife and purse containing the aforesaid articles belonging to the complainant. The companions of the accused got success in escaping alongwith the robbed mobile phone by taking the benefit of darkness.
Per contra, as per defence set up on behalf of the accused, he is innocent and he was falsely implicated by the police at the instance of the companions of the accused Mohd. Asif by lifting him from his house but no evidence has been led to support the claim of the accused.
State Vs. Mohd. Asif Page No. 13 of pages 26
16. According to Ld. Addl. PP for the State, the case of the prosecution is crystal clear. By way of consistent and corroborative evidence of PW--1(the complainant) and the material witnesses i.e. PW--4, PW--7 and PW--8 alongwith the other witnesses, the prosecution has successfully proved that accused alongwith his companions had robbed off the complainant from his mobile and purse containing the aforesaid articles at the point of buttondar knife. There is no dispute about the identity of the accused, who was caught red handed alongwith the stolen articles and the knife. The case property i.e. the knife, purse and other belongings have been duly produced and identified before the court. Thus, the accused is liable to suffer an order of conviction against him for the commission of offences charged against him.
On the other hand, according to Defence counsel, the prosecution has been failed to bring home the guilt of the accused beyond the shadow of reasonable doubt. First of all, there is no public witness of the incident despite of the fact that they could easily be available. Further, in his cross examination, the complainant has specifically admitted that he could not specify as to who amongst State Vs. Mohd. Asif Page No. 14 of pages 26 the three boys had put knife on his neck nor he could specify as to who had snatched his purse from his pocket. He has also stated that he had not seen the faces at the time when the knife was put to his neck. Further other two accused persons made to slip due to darkness and no efforts were made by the police to apprehend by them despite of the fact that their names were clearly disclosed by the accused. All these facts indicate towards the innocence of accused and as such he is entitled for an order of acquittal in his favour.
17. In the instant case, the accused has been charged U/s 392/397/411/34 IPC and also U/s 25 Arms Act.
The offence of robbery as defined in Section 390 IPC is a special and aggravated form of either theft or extortion. Robbery means a felonious taking from the person of another or in his presence against his will, by violence or putting him in fear. The chief distinguishing element in robbery is the presence of imminent fear of violence. Section 391 IPC defines the offence of dacoity. The simple robbery is punishable U/s 392 IPC, whereas Section 393 IPC is a specific section for an attempt to commit robbery. The offence of voluntarily causing hurt of either description in committing or State Vs. Mohd. Asif Page No. 15 of pages 26 attempting to commit robbery is punishable U/s 394 IPC. Section 395 IPC prescribes the punishment for the offence of dacoity, whereas Section 396 IPC provides punishment for the offence of dacoity with murder. Section 397 IPC has been incorporated with intention to cover the case of a person who displays a deadly weapon to frighten his victim or their neighbours or who makes use of any deadly weapon for other simple purposes and its operation is not confined to cases where the weapon is used actually for causing injury or for attempting to cause an injury to another. The provision of Section 397 IPC do not create any new substantive offence but merely served as complementary to Section 392 & 395 IPC by regulating the punishment already provided for robbery and dacoity. By fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances i.e. use of a deadly weapon or causing of a grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principles of constructive or vicarious liability engraft in Sec. 34 IPC. State Vs. Mohd. Asif Page No. 16 of pages 26
Section 25 of Arms Act prescribes punishment for use and possession of illegal arms.
18. To bring home the guilt of the accused Mohd. Asif U/s 392 IPC the prosecution is required to prove:
(i).that the accused committed theft;
(ii).that he caused or attempted to cause to some person (a) death, hut or wrongful restraint; or (b) fear of instant death, or of instant hurt, or of instant wrongful restraint;
(iii).that he did as above (a) in committing such theft; or (b) in order to commit such theft, or (c) in carrying away, or attempting to carry away, the property obtained by such theft;
(iv).that he acted as in (ii) voluntarily.
Or prove:
(i).that the accused committed extortion;
(ii).that he was, at the time of committing it, in the presence of the person so put in fear;
(iii).that he committed it by putting that person or some other person in fear of instant death, or of instant hurt, or of instant wrongful restraint;
(iv).that he thereby induced the person so put in fear to deliver up then and there the thing extorted.
and to prove its cases U/s 397 IPC against the accused, it is necessary by the prosecution to establish:
(a). the commission of robbery or dacoity State Vs. Mohd. Asif Page No. 17 of pages 26 In the case of robbery a conviction under this section is equally good, whether the number of the accused be five or under;
(b). that the accused used a deadly weapon; or caused grievous hurt; or attempted to cause death or grievous hurt;
(c). that the above acts were done during the commission of robbery or dacoity.
In short, the prosecution is required to prove that the accused has robbed off the complainant of his belongings on the point of knife.
19. Now let us see, how far the prosecution has remained successful in proving its case against the accused Mohd. Asif U/s 392/397/34 IPC.
PW--1 Sudhir Kumar (the complainant) has confirmed that when he was moving towards the local bus stand at ISBT Delhi and reached near the toilet, three boy chases him and out of them, one boy put the knife on his neck and other boys snatched his belongings including the mobile and purse and on raising his alarm PW--4 HC Azad Singh, who was passing through the area, rushed there and after making chase, he apprehend one of those boy, who were State Vs. Mohd. Asif Page No. 18 of pages 26 running away alongwith the knife and his purse containing cash and other documents and he identified the accused present in court, as the person who was apprehended at the spot alongwith the aforesaid articles. He has also identified his stolen purse Ex.P1 containing two currency notes of Rs.100/ denomination each, one I Card bearing his photograph and five loose papers and buttondar knife Ex.P2, recovered from the possession of the accused and also proved the factum of arrest and taking of personal search of the accused and he also proved the seizure memo of the knife and the sketch Ex.P1/C and B respectively. However during cross examination he was unable to specify as to which of the accused persons had put knife on his neck nor he could tell specifically as to who had snatched his purse from his pocket. He further conceded that he had not seen the faces at the time when the knife was put to his neck.
PW--4 HC Azad Singh has also confirmed that on hearing the noises Chor Chor, he alongwith Ct. Hari Om chased the boys and got success in apprehending one of them (who was accused present in court) alongwith the knife Ex.P2 and the purse of the complainant State Vs. Mohd. Asif Page No. 19 of pages 26 containing the other articles as stated above Ex.P1. He has not only identified the accused and the articles recovered from his possession before the court but also proved the seizure of the articles recovered from the accused, factum of arrest of the accused at the spot and various other documents prepared by the IO in his presence.
PW--7 Ct. Ved Prakash & PW--8 ASI Manoher Lal (IO), who were on patrolling duty and met with HC Azad Sigh, Ct. Hari Om and Mohd. Asif, the accused present in court, have also corroborated with the story of prosecution. They confirmed that after recording the statement of complainant, the knife and recovered purse alongwith the aforesaid articles were seized by ASI Manohar Lal. Accused was arrested and his personal search was conducted. Site plan and FIR are also proved.
20. From the combined reading of the testimonies of PW--1, PW--4, PW--7 & PW--8 and other witnesses, it is established that the accused Mohd. Asif was one of those persons, who had robbed off the complainant by snatching his belongings and he was caught on the spot alongwith the robbed articles and the buttondar knife and the identity of the accused is established and the case properties are State Vs. Mohd. Asif Page No. 20 of pages 26 produced and proved on record but unfortunately, it is not established beyond doubt that the accused was the particular person, who had put the knife on his neck at the time of committing robbery and snatched away the belongings of the complainant on the knife point. The relevant portion of the cross examination of PW--1 is as under: I can not tell specifically as to which of the accused had put knife on my neck..... It is correct that I had not seen the faces at the time when the knife was put to my neck.
There is no other eye witness of actual occurrence and PW4, PW--7 & PW--8 came to the spot subsequently. Thus the case of the prosecution is not established U/s 397 IPC beyond the shadow of doubt but certainly the prosecution has established its case U/s 392/34 IPC and accused is accordingly held guilty U/s 392/34 IPC only.
21. Now come to Section 25/54/59 of Arms Act.
PW--1 Sudhir Kumar has testified that PW--4 HC Azad Singh chased the accused and had apprehended him alongwith the knife Ex.P2. PW--4 has also corroborated this fact. He has also State Vs. Mohd. Asif Page No. 21 of pages 26 identified the knife and stated the measurements and other identities of the knife correctly.
PW--3 Anil Yadav proved the Delhi Administration Notification dated 17.02.1979 by producing the relevant record.
PW--7 Ct. Ved Prakash & PW--8 ASI Manoher Lal (IO) have confirmed the factum of seizure and taking in possession of the said knife by the police. PW--1 has also duly identified the knife and stated that it was the same knife which was got recovered from the possession of accused.
Thus the case of the prosecution also established U/s 25 Arms Act and therefore, the accused is liable to be held guilty U/s 25/54/59 Arms Act.
22. In view of aforesaid, accused Mohd. Asif s/o Ajeev Ahmed is hereby held guilty U/s 392/34 IPC and U/s 25/54/59 of Arms Act and he is convicted therein under accordingly.
23. File be consigned to record room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 29.10.2009) ASJ04 (NORTH)/DELHI
State Vs. Mohd. Asif Page No. 22 of pages 26
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE04 (NORTH) : DELHI
In the matter of:
State Vs. Mohd. Asif
S/o Ajeev Ahmed
R/o H. No.5410, Chadhaiwali
Tonalwali Chowk, Kucha Rehman,
Chandni Chowk, Delhi.
: ORDER ON SENTENCE :
1. Vide my judgment dated 29.10.2009, I have already convicted accused Mohd. Asif s/o Ajeev Ahmed U/s 392/34 IPC and U/s 25/54/59 of Arms Act. Today, I have also heard him on the point of quantum of sentence.
2. The convict is praying for mercy on the ground that he is a young boy of 19 years of age and is the first offenders and has no criminal background. It is also claimed that he belongs to the poor strata of the society and worked as a worker. He is still unmarried and a long life is behind him. He is behind the bar since 25.06.2008. He further states that he has learnt a great lesson and now he is seeking a chance to get himself reformed. It is also claimed on behalf of the convict that the conduct and behaviour of the convict has remained upto the mark through out the period of trial and no complaint has been reported against him from from any corner. For the aforesaid reasons, the Ld. counsel for the convict is praying for some leniency towards the convict.
3. Per contra, according to Ld. Addl. PP for the State, the State Vs. Mohd. Asif Page No. 23 of pages 26 convict has committed serious offence which is against the society at large and he deserves the stern punishment. He should not be allowed to flee away from the punishment merely on account that he is a young boy of 19 years of age and a long life is behind him as it will give a wrong message in the society. Punishment should not be a nail bitting one. As such, the maximum sentence should be awarded to the convict.
4. Sentencing is a complex and difficult process. On one hand, the question of liberty of an individual is involved and on the other hand the larger interest of the society is also there and it should not be forgot that the incident of crime are increasing day by day and in order to have an effective control over it, the punishment should be adequate and just.
5. Sentencing is a very difficult process. At one end there is a question of personal liberty and at the same time on the other hand the question of larger interest of society is involved.
It has been very aptly indicated in Dennis Councle MCGDautha 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."
State Vs. Mohd. Asif Page No. 24 of pages 26
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 basis of relevant circumstances in a dispassionate manner."
In Sevaka Perumal etc Vs. State of Tamil Nadu (1991 (3) SCC 471) it was held that, "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. 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.
State Vs. Mohd. Asif Page No. 25 of pages 26
6. After giving my thoughtful consideration to the aforesaid submissions made on behalf of both the sides, I have come to the considered opinion that the interest of justice shall be fully met if the convict is awarded the following sentences:
(i).He shall undergo Rigorous Imprisonment for the period already undergone by him and payment of fine of Rs.1,500/, in default, SI for the period of two months U/s 392/34 IPC.
(ii).U/s 25/54/59 of Arms Act also he is awarded sentence to undergo Rigorous Imprisonment for the period already undergone by him and payment of fine of Rs.1,000/, in default, SI for the period of two month.
(iii).Benefit of Section 428 Cr.P.C. be also given to the accused.
(iv).Both the sentences shall run concurrently.
7. Copy of the judgment and order of sentence be given to the convict free of cost.
8. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 30.10.2009) ASJ04 (NORTH)/DELHI
State Vs. Mohd. Asif Page No. 26 of pages 26