Delhi District Court
State vs Albert Jojo on 8 November, 2013
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions
JudgeII, South District, Saket Court, Delhi.
Session Case No. 81/2012.
In the matter of :
State
Versus
1. Albert Jojo,
S/o Anthony Decosta,
R/o H. No.138/H,
Munirka Village, New Delhi.
2. Deepak Seth,
S/o late K L Seth,
R/o H. No. 27,
Sector6, R.K. Puram,
New Delhi.
FIR No. : 269/2012.
Police Station : Vasant Kunj.
Under section. : 392/394/397/411/34 IPC.
Date of assignment : 22.12.2012.
Reserved for order on : 21.20.2013.
Date of decision : 31.10.2013.
JUDGMENT
1. Madan Pal was waylaid by three persons on 20.08.2012 at State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.1/26 about 9.30pm at DDA Park, near Priya Cinema Complex, when he was on his way to meet his friend Rehman at Munirka. Those three persons not only assaulted Madan Pal, but under the threat of knife, robbed his purse and mobile phone too and ran away from the spot under the cover of darkness. Madan Pal gathered his wits and came towards the road where he found police personnels. He reported the matter to them and that is how two policemen accompanied him to the park whereas the third policeman went on a motorcycle towards the main road in search of the assailants. By the time Madan Pal and two policemen emerged on the other side of the park through the nearby jungle near Priya Petrol Pump, the policemen, who had gone to look for the assailants, was found standing with three persons. Madan Pal immediately reported that those are the three persons who had robbed him and that is how FIR No.269/2012 was registered by the police of PS Vasant Vihar on the complaint of Madan Pal.
2. There was nothing much left, which needed to be investigated upon in view of the apprehension of the accused persons almost immediately after the incident and recovery of the robbed articles together with the weapon of offence. The investigation was mopped and chargesheet was filed by the police under section 397, 392, 411 read with section 34 IPC. After compliance of section 207 Cr.P.C., State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.2/26 case was committed to the court of sessions.
3. Based upon the contents of the chargesheet, prima facie case of robbery was found against all three accused persons, although one of them was juvenile, therefore, his matter was referred to Juvenile Justice Board. Accordingly, charge under section 411 IPC was framed against accused Albert Jojo, who was found possessing mobile phone whereas accused Deepak Seth was charged under sections 392/394/34 IPC with Albert Jono. Accused Deepak was additionally charged under section 397 IPC as well as he was the person who had used the weapon in the robbery.
4. Of the nine witnesses sought to be examined by the prosecution, all were examined except one, who otherwise was not to be examined being the custodian of the Malkhana and duty bound to produce the case property, which he did.
5. Evidence coming on record was put to the accused persons and their version of the things was recorded in their respective statements under section 313 Cr.P.C., both of whom have claimed that they have been falsely implicated in this case. On the aspect of bringing the evidence in their favour, both of them opted not to bring any evidence State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.3/26 in their defence.
6. I have heard the contentions raised by Sh. Zenul Abedeen, Additional Public Prosecutor for the State, Sh. Paramjeet Singh, Advocate, appearing as Amicus Curiae for accused Deepak and Sh. D.C. Bhardwaj, Advocate, for accused Albert Jojo and have gone through the record as well.
7. In order to drive home its case under sections 392/394/397 and 411 IPC, the prosecution is to establish following aspects:
Theft which constitutes robbery, the prosecution has to establish the following facts:
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
Where a deadly or dangerous weapon is used, the said robbery State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.4/26 would fall into the scope and ambit of section 397 IPC, rest of the things remaining the same as narrated hereinabove.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) coexist with (d) and (e) or there is a nexus between any of them and
(d), (e) would amount to robbery; reference can be made to the judgment in State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).
8. In order to establish the case under section 411 IPC, the prosecution is to prove that the accused was in possession of a property, which was subject matter of theft or similar other kind of offence knowing or having reason to believe that it was such a property.
State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.5/26
9. The prosecution has heavily relied upon the testimony of four witnesses including the victim Madan Pal. The three police personnels, to whom the matter was reported immediately after the incident which resulted into the apprehension of all three assailants are the other pillars of the prosecution's case. With the aid of their testimony, it is submitted on behalf of the prosecution that the requisite ingredients have been brought on record. There is no dispute about the identity of the accused persons since they have been identified by the victim and the connecting evidence in the shape of recovery of the robbed articles from them and that is how the prosecution is able to drive home its case against both the accused persons.
10. Counsel for the accused persons, on the other hand, submitted that the evidence brought on record is highly improbable and doubtful on account of mix up qua the exact time or so to say the time of the apprehension of the accused persons, which according to one set of the witnesses is at around 1.00am in the night, whereas the other version is that they were apprehended around 10.15pm or so. The recovery effected from the accused persons has not been witnessed by any independent public witness despite the fact that they were apprehended near the Petrol Pump which, according to one State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.6/26 of the witnesses, at least, was open. Therefore, there was every possibility to include witnesses to make the case more credible and trustworthy but for the reasons best known to police no such attempt was even made. This brings the recovery under cloud.
11. Then again the witnesses have stated that their statements were recorded by the IO at the spot itself in his own handwriting but statements of all the witnesses on record are typed written. How come this has taken place has not been clarified which indicates that the accused persons have been falsely implicated and all the proceedings were conducted at the police station. Bias of the police officials can be seen from the fact that the accused Deepak has been shown as a vagabond by police in the chargesheet whereas in the MLC itself he has given his address. This is, it is asserted, nothing but an attempt to malign and prejudice the opinion of the court against the accused Deepak. With these contentions, it is submitted that in view of the contradictions and doubtful circumstances, the accused persons deserve their acquittal inasmuch as the cogent evidence is not there against them which entitles them to the benefit of doubt. It is also asserted that the star witness of the prosecution and the victim Madan Pal has turned hostile on material aspects and has been crossexamined by the learned Addiction Public Prosecutor. State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.7/26 Madan Pal and other witnesses have also improved their statements before the court which too raises a question mark about their credibility.
12. As regards, the joining of independent public witness is concerned, it cannot be taken as mandatory inasmuch as there are situations, which are more often then not invariably present now a days, where none is ready to come forward to get embroiled into any controversy which entails some connection with the police or court proceedings. It is nearly impossible to find any independent witness so much so that even the victims of the offence, at times, shy away and do not come forward to support the prosecution. Thus, absence of the independent public witness does not necessarily be taken against the prosecution.
13. In this context reference can be made to the judgment in Tahir v. State (Delhi), (1996) 3 SCC 33, where the Hon'ble Supreme Court has held :
"Mr. D D Thakur, the learned senor counsel appearing for the appellant, submitted that PW 4 to PW 7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.8/26 safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case".
14. The police/ official witnesses are also there and their testimony cannot be simply brushed aside simply because they being police officials, interested in the success of prosecution. In State of Gujrat v. Raghunath Vamanrao Baxi, 1985 AIR 1092, the Hon'ble Supreme Court made the following pertinent observations: "For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interest in the success of the State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.9/26 prosecution. The court may be justified in looking with suspicion upon the evidence of officers who have been demonstrated to have displayed excess of zeal in the conduct and success of the prosecution. But to reject the evidence of all official witnesses as the High Court has done in the present case, is going far too far. We think that it is extremely unfair to a witness to reject his evidence by merely giving him label".
15. In Govindaraju @ Govinda v. State by Sriramapuram PS & Anr., 2012 III AD (SC) 453, the Supreme Court held : "This Court in the case of Girja Prasad (Supra)(AIR 2007 SC 3106) while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.10/26 the public, it can only bring down the prestige of the police administration. Wherever, the evidence of the police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed the view that no infirmity attaches to the testimony oft the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Reference can also be made to the judgment in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217.
16. In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930, the court examined the issue of the requirement of examination of an independent witness, and whether the evidence of a police witness requires corroboration, the Court herein held, that the same must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belonged to the police force, and are either State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.11/26 interested in the investigating or the prosecution agency. However, as far as possible the corroboration of their evidence on material particulars, should be sought. Reference can also be made to Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant Direct, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v. Superintendent of Customs, AIR 2007 SC 2040. Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon.
17. Improbabilities and discrepancies in the testimony of the witnesses, especially the police witness is the another area of thrust by the learned counsel for the accused. It has been vehementally argued that the testimony when juxtaposed to the overall scenario then it appears highly improbable and the divergent version of police witnesses qua the aspect of time virtually robs the sanctity and State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.12/26 strength of the evidence coming on record.
18. Text is to be read in context. If it goes out of context then it be more often than not, becomes incoherent and undecipherable. It loses its meaning and becomes a rudderless boat having no control and no destination. In this context reference can be made to the judgment in Narayan Chetanram Chaudhary v. State of Maharashtra, (2000) 8 SCC 457 to the following effect : "Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. In case of Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, (2013) 5 SCC 722 the court has observed that "It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.13/26 case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labeled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief".
19. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.14/26 impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the hear of the matter, and shake the basic version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. Reference can be made to State of UP v. M.K. Anthony, AIR 1985 SC 48; State rep. by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of MP, (2010) 8 SCC 191".
20. Testimony of the victim has primacy and is a potent evidence State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.15/26 which cannot be ignored or taken lightly on flimsy grounds. Various discrepancies/ contradictions/ improvements highlighted by the learned counsel are not material to discredit the testimony of a victim. The law on this aspect has been detailed in the latest judgment titled as State of Uttar Pradesh v. Naresh and Ors., 2011 AD (SC) 20 "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. Reference can be made to Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P." The victim who State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.16/26 though is not injured, also stands on the same footing, unless, it is shown that he is deliberately lying in order to frame the accused.
21. In any case, the victim himself may fall into the definition of public witness and is impartiality cannot be questioned simply because he had been the the victim and a complainant. Madan Pal has since strongly supported the case of the prosecution or so to say his own cause and the defence is unable to show that he had any axe to grind by falsely implicating the accused persons. In this context, it has not even been suggested or contended that there was some kind of enmity or other reason available with the complainant to complain against the accused persons. In such circumstances, why an ordinary person who is working, and getting educated as well, would invite trouble by falsely implicating anybody. Accused persons have been correctly identified by the victim Madan Pal. His credential cannot be doubted as is evident from the testimony though he was even crossexamined by learned Additional Public Prosecutor for State which shows the normal conduct in a given situation in which the witness was. Therefore, the absence of any independent witness does not affect the recovery of knife and the robbed articles from the accused persons through memo Ex.PW4/A and Ex.PW4/C. Nor for that matter the cross examination conducted by the learned State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.17/26 Additional Public Prosecutor would affect the trustworthiness of the statement of the victim Madan Pal.
22. The Hon'ble Supreme Court in Bhagwan Singh v. The State of Haryana, (1976) 1 SCC 389, has held : "We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to crossexamine the witness under section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to crossexamine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the DSP, is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under section State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.18/26 161 IPC. There is, therefore, clear abetment by the appellant of the offence under section 161 IPC and the ingredients of Section 165A IPC are established against him". A similar view was taken with respect to the testimony of hostile witness in Gura Singh v. State, 2000 IX AD (SC) 299. As such, even if Madan Pal was declared hostile, still his testimony is available rather it shows that he is a reliable and truthful witness, not a tutored one.
23. Counsel for the accused persons have vehemently argued that the police officials did not comply with the instructions meant for them for instance, the police patrol on motorcycle would be of two persons on a single motorcycle. It is however not indicated as to what prejudice was caused to the accused by the purported violation of the instructions with regard to the patrolling. The other aspect which has been raised is absence of any handwritten statement under section 161 Cr.P.C. rather typed or computer generated statements are there, whereas the witnesses have stated that IO had recorded their statements at the spot in his own handwriting. IO has clarified this aspect by saying that he had taken rough notes at the spot and later on recorded them in a proper shape under section 161 Cr.P.C. in the police station. It does not cause any prejudice to the accused. These arguments are, thus, of no avail and, therefore, same are accordingly State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.19/26 brushed aside.
24. Another aspect which has been highlighted on behalf of the accused persons is mix up with regard to time of apprehension of accused persons as PW5 OM Prakash has stated that accuseds were apprehended at 10.15pm, whereas other witnesses concerned with the apprehension of the accused persons i.e. PW4 and PW6 have stated that the accused persons were apprehended at about 1.00am in the night near the Petrol Pump. This indeed is big mix up on behalf of the police personnels but then only PW5 Om Prakash has gone into that direction rest others have maintained that accused persons were apprehended at about 1.00am. In this context, the statement of the victim becomes important as he has supported the other version that the accused persons were apprehended at about 1.00am near the Petrol Pump. The medical record of the accused persons also substantiate this aspect to some extent as accused persons were got medically examined by police personnels and the time of their medical examination is 2.52am. Thus, if the testimony of PW5 Om Prakash is ignored then the time of apprehension of accused persons at about 1.00am comes on record. There is no reason to disbelieve this version, especially when the victim has also endorsed this aspect. It is pertinent to mentioned here that the victim does not seem to be State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.20/26 tutored witness as his testimony is trustworthy despite the fact that he was crossexamined by the learned Additional Public Prosecutor. He has however disappointed the prosecution on a very vital aspect as to who out of three persons had threatened him with knife/dagger despite being pointed out specifically. He maintained that one of those three had done this but he did not find himself in a position to identify the said person. He further jolted the case of the prosecution with regard to the recovery of knife/dagger where he has categorically admitted that the same was not recovered from accused Deepak in his presence.
25. Thus, what emerges from the overall appreciation of evidence on record on the parameters of logic, reason and probability is that the victim was robbed by three persons at the point of knife but it is not clear as to who used the knife. One of those three persons is juvenile and is facing trial before the Juvenile Justice Board. Two accused persons Albert Jojo and Deepak have been categorically identified by the victim as those who were involved in robbing him. Madan Pal has also stated that he was beaten by the accused persons before robbing him and the other essential aspects have also been driven home by the prosecution. Therefore, in view of these facts and circumstances, both the accused persons are held guilty under State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.21/26 sections 392 and 394 IPC read with section 34 IPC and convicted thereof.
26. As regards section 397 IPC, with which accused Deepak has been charged, he is acquitted as there is no evidence qua use of knife by him and for that matter even the recovery of knife from his possession, which completely knocks the bottom of the prosecution's case on the aspect and takes Deepak out from the purview of section 397 IPC. Additionally, the victim Madan Pal had merely seen a part of the so called knife thus it creates doubt, in fact, as to whether a knife was there or not.
Announced in the open Court (Vimal Kumar Yadav) On 31.10.2013. Additional Sessions JudgeII, South District, Saket Courts, New Delhi.
State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.22/26 In the Court of Sh. Vimal Kumar Yadav, Additional Sessions JudgeII, South District, Saket Court, Delhi.
Session Case No. 81/2012.
In the matter of :
State Versus
1. Albert Jojo, S/o Anthony Decosta, R/o H. No.138/H, Munirka Village, New Delhi.
2. Deepak Seth, S/o late K L Seth, R/o H. No. 27, Sector6, R.K. Puram, New Delhi.
FIR No. : 269/2012. Police Station : Vasant Kunj. Under section. : 392/394/411/34 IPC. Order on Sentence
1. It is submitted on behalf of convict Deepak that he is a young man who has been victim of circumstances as his parents are no more and he did not find it to conducive to live with his married brother, with whose wife he is unable to adjust. Considering the period he State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.23/26 has already spent in custody, which is about a year or half, he may be considered for the sentence of the period already undergone by him.
2. It is contended on behalf of convict Albert Jojo that he is young man and has been victim of circumstances in which he has gone astray. He may be given an opportunity to reestablish himself in his own eyes and in the eyes of the society. Except the instant case, there is no other criminal involvement which indicates that the present case is an isolated circumstance against the convict. With these contentions, it is sought that he may be considered for the lightest possible punishment.
3. Learned Additional Public Prosecutor, on the other hand, sought commensurate punishment for the convicts in terms what has been done by them. It is submitted that wayward tendencies of the convicts are required to be curtailed lest it would become a menace to the society. According to the learned Additional Public Prosecutor, convicts do not deserve any leniency as they committed the offence in brazen and blatant manner taking the aid of a deadly weapon.
With these contentions, suitable and appropriate sentence is sought for them.
State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.24/26
4. While discussing the concept of appropriate sentence, it is observed in Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734, in following words "It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice [pic] which includes adequate punishment cannot be lightly ignored". The concept of sentencing came under consideration in following cases which can be referred to see as to what are the factors to be considered while sentencing : Santa Singh v. The State of Punjab, (1976) 4 SCC 190, Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532, Shailesh Jasvantbhai and another v. State of Gujrat and orthers (2006) 2 SCC 359 and Gopal Singh v. State of Uttrakhand, 2013 X AD (SC) 403.
5. Role of a Judge as sentencer is very critical as conflicting forces are there which are to be balanced. Guilt of the convicts and their acts are on the one side and peace and harmony in society and civilized norms are there on the other side of the scale. Balancing them is a tedious job. Compassion and justice are to be mixed right proportion in order to arrive at a proper sentence. The compassion should be justifiable and justice delivered should be compassionate. State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.25/26 Any lopsided evaluation will lead to miscarriage of justice. Thus keeping in view the socioeconomic and educational background of the accused persons, their age and the fact that they have not been involved in any other case, they deserve some leniency but then the way they had committed the offence of robbing the victim, that persuades me to sentence them to rigorous imprisonment for a period of 24 months with fine of Rs.2,500/ each under section 392 IPC. In default of payment of fine, they shall further undergo simple imprisonment of six months each. Both of them are sentenced to under go rigorous imprisonment for a period of 30 months and to pay a fine of Rs.2,500/ each and in default to undergo simple imprisonment for six months under section 394 IPC. Both the sentences shall run concurrently. No separate sentence is awarded under section 411 IPC qua Albert Jojo. Both the convicts shall be entitled for the benefit of set off under section 428 Cr.P.C. Copy of judgment and order on sentence be provided to them free of costs. After compliance, file be consigned to record room.
Announced in the open Court (Vimal Kumar Yadav)
On 08.11.2013. Additional Sessions JudgeII,
South District, Saket Courts,
New Delhi.
State. v. Albert Jojo & Anr., FIR No. 269/2012. Page No.26/26