Delhi District Court
State vs Nazim Khan Alias Guddu on 26 March, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 124/11
ID No. 02401R0249602010
State
Vs.
Nazim Khan alias Guddu
S/o Khalid Khan
R/o Gali No. 9,
Ramghat, Wazirabad,
Timarpur,
Delhi
FIR No. 20/10
PS Burari
U/S 394/397/411/34 IPC
Date of Institution: 22.05.10
Date of reserving for judgment: 19.03.12
Date of pronouncement: 23.03.12
JUDGMENT
In the present case, charge has been framed against accused Nazim in respect of offences U/S 394 and 397 r/w Section 34 IPC. The allegation in the charge is that on 30.01.10 at about 2:15 PM at H.No. 633, Gali No. 4, Sangam Vihar, Burari, he [accused] in furtherance of his common intention with accused Manzoor, Salim and Raju [all not Sessions Case No. 124/11 Page 1/24 2 arrested] committed robbery by using deadly weapon i.e. katta and robbed Ashifa Alam by threatening her to cause grievous hurt or her death and removed her gold chain, gold earrings, two gold rings and cash of Rs. 25,000/- from the almirah.
2 Charge has also been framed against accused Nazim Khan in respect of offence U/S 411 IPC. The allegation against the accused is that on 05.03.10 he was found in possession of stolen gold earrings and silver pajeb, which were taken away by him during robbery. 3 Accused pleaded not guilty to the said charges and claimed trial.
4 To prove its case prosecution has examined 13 witnesses. They are Gaurav Sharma(PW1), Mehmooda alias Munni(PW-2), Ashifa Alam(PW-3), Constable Shatrujit(PW-4), SI Yudhvir Singh(PW-5), Nafeesa(PW-6), ASI Sudhir Bhalla(PW-7), HC Amar Nath(PW-8), HC Rajeev Kumar(PW-9), Constable Pawan(PW-10), Mumtaz alias Mamta(PW-11), SI Sanjay Kumar(PW-12) and Sh. Sudesh Kumar(PW-13).
5 Statement of accused has been recorded U/S 313 Cr.PC. He has denied the allegations of prosecution. He has submitted that he is innocent. He has been falsely implicated in this case. He was neither present at the spot nor involved in any offence. Case property has been planted upon him and nothing was recovered from his possession.
Sessions Case No. 124/11 Page 2/24 36 Accused examined one witness in his defence. She is Shakila Begum [DW-1].
7 I have heard the arguments from ld. counsel for accused and Ld. Addl. P.P for State.
8 Ld. counsel for accused has prayed for acquittal of accused by submitting that accused has been falsely implicated in this case. Description of accused was not matching with the description recorded by the I.O on 30.01.10 as complainant has deposed in her testimony that the robbers were boys and accused is not a boy. There are contradictions in the testimonies of PWs regarding the arrest of accused. Recovery of case property from accused is doubtful as no independent witness was joined by the I.O. Report of chance prints has not been placed on record. Private photographer was called despite the fact that crime team was present at the spot. No bill of jewellery articles has been placed on record. Jewellery articles were sealed at police post and not at the spot.
9 On the other hand, Ld. Addl. PP has prayed for conviction of accused by submitting that prosecution has proved its case beyond reasonable doubt. All the PWs have supported the prosecution case. 10 In the present case, out of 13 witnesses, PW-3 Ashifa Alam is the star witness of the case being the complainant. She has fully supported the prosecution story by deposing that on 30.01.10 she was present at her house. At about 2:15 PM, she was washing the water Sessions Case No. 124/11 Page 3/24 4 filter in the kitchen at first floor. One boy came with a pistol and kept the pistol on her ear. She was running a clinic on the ground floor of the house and the doors of the house were open at that time. The boy, who was tall one, asked her to sit on the sofa on the point of pistol and threatened her to keep quiet and not to utter a word. He [tall boy] further asked her to handover the valuables things, which she was having. In the meantime, one more boy having fair complexion also reached there. He sat beside her on the sofa and put a long knife at her neck. The first boy, who had come with pistol, asked her to handover Rs. 35 Lakhs, which were the sale proceeds of some land. She [PW-3] told him that she was not having even Rs. 35,000/- with her, then how she would handover Rs. 35 Lakhs to him. He [the boy] further stated that "aapke paas bahut hai or pichchli baar bhi bahut nikla". On 08.01.09 she had gone to Muradabad for her personal work and a theft had taken place in her house and about 22 tolas gold and silver items were stolen. In the meanwhile, third boy of black complexion and golden hair also came upstairs. She was asked by the offenders to handover the jewellery, she was wearing. She was further told not to throw the jewellery on the ground and to give the jewellery to them [offenders]. She [PW-3] removed her gold tops, a gold chain with pendent, four gold rings and a pair of earrings and handed over the same to the boy with fair complexion, who had knife in his hand. She Sessions Case No. 124/11 Page 4/24 5 has further deposed that in the meantime, two more boys having pistols with them came upstairs and started opening the almirah. From almirah, they removed a gold ear jhumke, a pair of gold long bunde, a pair of another gold jhumkees and two pairs of silver pajebs and a cash of Rs. 25,000/-. Thereafter, all the five boys started talking with each other saying that the box in which lot of valuable articles were recovered last year should be searched. The said box was also kept in the almirah but was locked. They asked her [PW-3] to handover the keys of said box. She gave the key of that box. The offenders took away, all the jewellery, including the artificial jewellery from that box. The boy having black complexion asked the other boys to stab her with knife. She [PW-3] started crying and said that on one hand, they had taken all her valuable articles and on the other hand, they were killing her. The boy with the fair complexion asked the other boys to spare her. The tall boy, pushed her inside the bathroom and bolted the door from outside. She was not having anything with her. Her mobile phone was lying over the fridge, which was kept in the room. Her husband was not in the house and had gone to his clinic. There was a window in the bathroom. She peeped out of the window and shouted for help but no one heard the same. Thereafter, she threw out a brush, lying in the bathroom in the neighbour's house and also threw water from the Sessions Case No. 124/11 Page 5/24 6 bucket. The lady in her neighbourhood namely, Munni, asked her as to what had happened. She [PW-3] asked her to open the door of the bathroom and narrated the incident to Munni from bathroom. Munni did not come for her help by saying that 'din me chor nahi aate hain, main nahi aaungi'. Thereafter, PW-3 requested her [Munni] to call someone for help, from the house, opposite to her house. Munni called one Mumtaz living in the house opposite to her [PW-3's] house. Mumtaz came for her help with another lady namely, Nafisa. They opened the door of the bathroom. Someone informed the police to reach the spot. When she was sitting on the sofa, she [PW-3] noticed that two more boys were on the stairs as stairs were visible from the place, where she was sitting. Later on, she came to know from her patients that one more boy was sitting in her clinic with a bag and he [that boy] had also accompanied those seven boys. She reported the matter to police through her statement Ex. PW3/A. She can identify those seven persons, if they are shown to her. 11 She has further deposed that accused Nazim alias Guddu present in court, is the same person who had removed Rs. 25,000/- from her almirah on the day of incident.
12 During investigation, she was called in P.P. Jharoda by the police, where many persons were found sitting and she had identified accused Nazim Khan. She was informed by the police that some of her Sessions Case No. 124/11 Page 6/24 7 jewellery items have been recovered. She was called in the court to identify the same, before a Judge. She came to Tis Hazari and identified a pair of gold earrings and a pair of silver pajeb, before the Judge. She got the same released on superdari. The photographs Mark A-1 to A-7 were taken by the photographer, who had come to her house immediately after the incident. She [PW-3] has identified the pair of gold earrings as Ex. P-1 and photograph of pair of silver pajeb as Ex. PW3/B. 13 In cross-examination by ld. counsel for accused also, she [PW-3] has supported the prosecution case. She has deposed that police was called by her, after the incident, by her mobile phone No. 9711385676. Mumtaz and Nafisa, who were residing in her neighbourhood, came to her house and opened the door of the bathroom, when she [PW-3] raised an alarm. She cannot tell any distinguishable features of the pistols and knife, which were shown by offenders to put her under the fear. She was called to P.S at number of times as and when any suspect was caught. She was shown the photographs of accused in the P.S. Thereafter, she was taken to Tihar jail, wherein in the presence of Judge Sahab, she identified the accused. Police did not take any jewellery items from her for the purpose of TIP. During TIP proceedings, a number of jewellery articles were shown and she identified her earrings and silver Sessions Case No. 124/11 Page 7/24 8 pajeb. The earrings and pajeb were identified by her from a number of items which were lying on the table of MM. At the time of identification of jewellery articles, by her police officer was not present in the chamber of the Judge. She had described the peculiar features of her jewellery items, besides the weight of jewellery items. No cash was recovered by the police. She had no prior acquaintance with the accused, before the incident, as she has never seen him earlier, in the area. She has denied that accused has not participated in robbery and has not taken Rs. 25,000/- from her almirah. She has further denied that the gold earrings were not stolen or robbed on the day of incident or that the same were taken by police from her to plant upon the accused. She has denied that accused has been falsely implicated by her in this case, at the instance of police. 14 After going through the testimony of PW-3, I am of the considered view that she is trustworthy and reliable. She has fully supported the prosecution story by deposing that accused is the same person, who had taken cash of Rs. 25,000/- from her almirah on the day of incident. She has categorically specified the role of each of offenders. It is worth noting that she has been cross- examined at length by ld. counsel for accused but nothing has come on record to disbelieve her testimony. Her trustworthy Sessions Case No. 124/11 Page 8/24 9 testimony cannot be disbelieved if she has deposed that offenders were boys. It is further worth noting that in cross-examination by ld. counsel for accused, she [PW-3] has categorically denied that accused Nazim had not participated in robbery and had not taken Rs. 25,000/- from her almirah. She has further denied that the earrings robbed on the day of incident were taken by police from her to plant upon the accused. She has further denied that accused has been falsely implicated by her in this case at the behest of police. 15 In the present case, the true and trustworthy testimony of PW-3 that door of bathroom was opened by her neighbours is further corroborated with the testimony of PW-11 Mumtaz. She [PW-11] has deposed that in the year 2010 at about 2:00/2:30 PM she was sitting on the roof of her house. In the neighbourhood, wife of doctor was present in her house. Her neighbour called her and told her that water is coming from the bathroom. She alongwith Nafisa went upstairs. They [PW-11 and Nafisa] heard that wife of doctor was weeping and the door of her house was bolted from outside. They opened the door. She [PW-3] told them that her house was looted by some persons.
16 In cross-examination by ld. counsel for accused, PW-11 has deposed that 10-20 persons had collected at the spot. Her statement Sessions Case No. 124/11 Page 9/24 10 was recorded.
17 Similarly, PW-6 Nafisa has also deposed that about one year back at about 2:30 PM, the door of the bathroom of lady doctor who was residing, at the house, opposite to her house, was opened by Mumtaz [PW-11] alongwith 2/3 neighbours, where she [complainant] was confined.
18 It is worth noting that an opportunity to cross-examine this witness was given to ld. counsel for accused but he did not avail of that opportunity. In other words, testimony of PW-6 remains unrebutted. 19 Further, the true and trustworthy testimony of PW-3 cannot be disbelieved only on the ground that no bill of jewellery was placed on record.
20 It is worth noting that in her cross-examination by ld. counsel for accused, PW-3 has deposed that she has described the peculiar features of her jewellery items, besides the weight of jewellery articles, which were stolen/robbed.
21 It is further worth noting that PW-3 has identified the jewellery articles in the TIP proceedings of the case property which has been conducted by PW-13 Sh. Sudesh Kumar, Ld. MM on 07.04.10 vide proceedings Ex. PW13/F. 22 In cross-examination by ld. counsel for accused, PW-13 has denied that case property was not duly identified by the witness.
Sessions Case No. 124/11 Page 10/24 1123 Further, the true and trustworthy testimony of PW-3 cannot be disbelieved on the ground that description of accused was not matching with the description recorded on 30.01.10 by the I.O.
24 It is worth noting that PW-3 has categorically deposed in cross-examination by ld. counsel for accused that she had no prior acquaintance with accused before the incident as she had not seen him earlier in her area. It is further worth noting that PW-12 SI Sanjay Kumar, who is the I.O of case, has deposed in his cross-examination by ld. counsel for accused that he conducted enquiry from complainant regarding the age, physique, complexion and clothes of the robbers during investigation. He did not prepare any separate document regarding the physical description of the robbers. Since, no separate document was prepared by the I.O regarding the physical description of the robbers/accused. In these circumstances, I am of the considered view that the statement of PW-4 Constable Shatrujit in his cross-examination by ld. counsel for accused that description of accused was not matching with the description of robbers will not materially affect the case of prosecution as PW-3 has duly identified the accused in the court.
25 It is further worth noting that in the earlier dacoity committed by the accused persons in the house of complainant, none Sessions Case No. 124/11 Page 11/24 12 of the accused, belonging to Manzoor Gang was apprehended by the police as stated by PW-12 SI Sanjay Kumar. Therefore, the statement of PW-3 that she was not having any acquaintance with the accused prior to the incident, will not adversely affect the case of prosecution. 26 Further, the true and trustworthy testimony of PW-3 cannot be disbelieved only on the ground that jewellery articles were seized by the I.O at police post and not at the spot. It may be noted that it may be an irregularity in the prosecution case but not an illegality.
27 So far as, the plea of accused that there is contradiction in the testimony of PW-4 regarding the arrest of accused, I am of the considered view that there is no contradiction or ambiguity in the testimony of PW. In the present case, PW-4 Constable Shatrujit has deposed in his examination-in-chief that on 05.03.10 accused, present in court, was apprehended from Wazirabad. In his cross- examination by ld. counsel for accused, he [PW-4] has deposed that on 05.03.10 he [PW-4] and HC Rajiv [PW-9] went to the house of accused. They took accused to police post. I.O was present in the police post. I.O recorded the disclosure statement of accused and arrest papers of accused were prepared in the police post by the I.O on 05.03.10.
Sessions Case No. 124/11 Page 12/24 1328 In other words, as per the submission of ld. counsel for accused, PW-4 Constable Shatrujit has deposed in his examination-in- chief that accused Nazim was arrested from Wazirabad but in cross- examination he [PW-4] has deposed that he was brought to police post from his house and therefore, he was arrested from his house. 29 It is worth noting that as per arrest memo Ex. PW4/B accused Nazim is the resident of Gali No. 9, Ramghat, Wazirabad, P.S. Timarpur, Delhi. Further, PW-12 SI Sanjay Kumar has also categorically deposed in his examination-in-chief that on 30.01.10 complainant stated to him that the robbers were saying that " PICHLE SAAL WALA SAMAN JO REH GAYA THA, USE LENE AAYE HAIN. PICHLI BAAR BAHUT MAAL MILA THA, AB KAHAN HAI". Upon that information, he checked the previous record and found that last year, the theft had taken place in the house of the complainant and there was a complaint for the same. But, no one could be apprehended at that time. He [PW-12] has further deposed that he developed the local information and came to know that one Manjoor Gang had committed the theft in the house of complainant last year. Therefore, suspicion arose that the gang had committed robbery in the house of complainant. He [PW-12] made efforts to search the said Manjoor Gang. There was a secret information that one Nazim Khan was the member of said Manjoor Sessions Case No. 124/11 Page 13/24 14 Gang. He [PW-12] has further deposed that on 05.03.10 Constable Shatrujit and HC Rajiv were sent to the house of Nazim Khan at Wazirabad, where Nazim Khan was found present. Accused Nazim Khan was brought to PP Jharoda for interrogation. In the police post, accused was interrogated and he admitted his guilt. He [PW-12] arrested accused, after satisfying himself, vide arrest memo Ex. PW4/B. Thus, from the testimony of PW-12 SI Sanjay Kumar, it is crystal clear that accused was arrested from his house at Wazirabad and there is no ambiguity in that regard. 30 Further, the true and trustworthy of PW-3 and other witnesses cannot be disbelieved on the ground that the private photographer was called by the I.O at the spot despite the fact that crime team was called by him.
31 It is worth noting that PW-12 SI Sanjay Kumar has categorically deposed in his examination-in-chief that the photographer was not available in the crime team, so, he called the photographer, who took the photographs of the place of occurrence. The photographs taken by the photographer are Ex. PW1/A-1 to Ex. PW1/A-7. It is further worth noting that the testimony of PW-12 that he called the photographer at the place of incident, is corroborated with the testimony of PW-1 Gaurav Sharma, who took the photographs Sessions Case No. 124/11 Page 14/24 15 Ex. PW1/A-1 to Ex. PW1/A-7 on the directions of the I.O. 32 Further, I do not find any force in the arguments of ld. counsel for accused that chance print report has not been placed on record by the prosecution. In the present case, PW-7 ASI Sudhir Bhalla has deposed that on 30.01.10 he inspected the scene of crime from 4:10 PM to 6:30 PM. He tried to find out the chance print/finger prints from the articles mentioned in the report but no chance prints were found. Accordingly, he submitted his report Ex. PW7/A. I have perused the case file. Report Ex. PW7/A submitted by PW-7 is lying on the record.
33 Further, the testimony of recovery witnesses cannot be disbelieved on the ground that no public witness has been joined in the recovery of case property.
34 In Appabhai and Anr. V. State of Gujrat, AIR 1988 SC 696, it has been observed by Hon'ble Supreme Court that "experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, town or Sessions Case No. 124/11 Page 15/24 16 cities. One cannot ignore this handicapped with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witnesses must consider the broad spectrum of the prosecution and search for the nugget of truth with due regard to the probability, if any suggested by the accused."
35 In the present case, PW-12 SI Sanjay Kumar who is the I.O of case, has categorically deposed in his cross-examination by ld. counsel for accused that on 14.03.10 at about 2:00 PM he went to the house of accused. At that time public persons were passing through the house of accused. He asked some persons to join the proceedings but they refused. He did not note down their names and addresses and did not take any action against them. He has further deposed that he also asked residents of locality to join the investigation but they also refused and he did not take any action against them. It is worth noting that it is the tendency of general public not to come forward and to join the proceedings of a criminal case and testimonies of police officials cannot be disbelieved on the ground that they are police officials 36 It is worth mentioning that the recovery witness PW-4 Constable Shatrujit has denied that gold earring and silver pajeb were planted upon the accused. He has further denied that he did not joint Sessions Case No. 124/11 Page 16/24 17 the investigation of case and falsely deposed at the instance of I.O. Similarly, PW-3 Ashifa Alam has also denied that gold earrings were taken by police for planting the same upon the accused. She has further denied that accused has been falsely implicated by her at the behest of police.
37 Further, the true and reliable testimonies of police officials cannot be disbelieved if they did not make departure and arrival entries at the P.S. It may be noted that not lodging the departure and arrival entries may be an irregularity in the proceedings but on that count, the testimony of PW-3 cannot be brushed aside.
38 In the present case, accused has examined one witness in his defence. She is Shakila Begum [DW-1]. She has deposed that in the month of March, 2010, she alongwith the accused and wife of accused was sitting in their house. Two police persons came in civil dress and took the accused to police station. She alongwith wife of accused went to the police station and came to know that the accused had been arrested in a theft case. The [DW-1 and wife of accused] clarified that accused was innocent but police told them that the case had been registered and they should tell the court.
39 In cross-examination by Ld. Addl. PP, DW-1 has deposed that she did not lodge any complaint before any court and did not move an application to the higher police authorities to the effect that Sessions Case No. 124/11 Page 17/24 18 accused had been falsely implicated in this case. She has admitted that she is on good terms with accused and his wife.
40 I am of the considered view that since DW-1 and wife of accused did not lodge any complaint with the police or any other authority regarding false implication of accused and keeping in view the trustworthy and reliable testimony of PW-3, which is supported with the testimonies of other independent witnesses, I am of the considered view that testimony of DW-1 is not trustworthy and reliable.
41 After going through the testimonies of PW-3 and other recovery witnesses, I am of the considered view that prosecution has successfully proved its case beyond reasonable doubt against the accused Nazim Khan that on on 30.01.10 at about 2:15 PM at H.No. 633, Gali No. 4, Sangam Vihar, Burari, he [accused] in furtherance of his common intention with accused Manzoor, Salim and Raju [all not arrested] committed robbery by using deadly weapon i.e. katta and robbed Ashifa Alam of her jewellery and cash by threatening her to cause grievous hurt or her death. However, PW-3 has nowhere deposed that the robbers, while committing robbery voluntarily caused hurt to her. Thus, accused is acquitted of the offence U/S 394 IPC. 42 Since, prosecution has successfully proved beyond reasonable doubt that the accused committed robbery in the house of Sessions Case No. 124/11 Page 18/24 19 complainant by using the deadly weapon, accused is convicted of offence U/S 392 IPC in view of Section 222 Cr.PC.
43 So far as the offence 397 IPC is concerned, I am of the considered view that prosecution has also been able to prove the case beyond reasonable doubt.
44 In Ashfaq V. State [Govt. of NCT of Delhi], AIR 2004 SC 1253, it has been observed by Hon'ble Supreme Court that "what is essential to satisfy the word 'uses' for the purposes of Section 397 IPC is the robbery being committed by an offender, who was armed with a deadly weapon; which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.
45 In the present case, PW-3 has categorically deposed that accused Nazim came upstairs with pistol [deadly weaopn], opened her almirah and took her jewellery and cash. In other words, the deadly weapon [pistol] was within the vision of PW-3 and was capable of creating terror in the mind of PW-3. Since, the necessary ingredients of Section 397 IPC are existing in the present case, accused Nazim Khan is convicted in respect of offence U/S 397 IPC. 46 Further, from the testimonies of PWs already, discussed in the earlier part of the judgment, prosecution has proved beyond Sessions Case No. 124/11 Page 19/24 20 reasonable doubt that accused was found in possession of gold earrings and silver pajeb, which were robbed from the house of PW-3. Hence, accused Nazim is also convicted in respect of offence U/S 411 IPC. 47 To conclude, accused Nazim Khan alias Guddu stands convicted in respect of offences U/S 392, 397 and 411 IPC.
Announced in the open court today
on 23.03.12 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 124/11 Page 20/24
21
IN THE COURT OF SMT. BIMLA KUMARI
ADDITIONAL SESSIONS JUDGE (NORTH) : DELHI
S.C. No. 124/11
ID No. 02401R0249602010
State
Vs.
Nazim Khan alias Guddu
S/o Khalid Khan
R/o Gali No. 9,
Ramghat, Wazirabad,
Timarpur,
Delhi
FIR No. 20/10
PS Burari
U/S 394/397/411/34 IPC
Arguments heard: 24.03.12
Date of order: 26.03.12
ORDER ON SENTENCE
In the present case, accused Nazim Khan alias Guddu stands convicted in respect of offences U/S 392, 397 and 411 IPC vide my separate judgment on 23.03.12.
2 I have heard arguments on the point of sentence from ld. counsel for convict and Ld. Addl. PP.
Sessions Case No. 124/11 Page 21/24 223 Ld. counsel for convict has prayed for a lenient view by submitting that accused/convict Nazim Khan is 51 years old. He is a TSR driver by profession. He has five children, out of which three are daughters and two are sons. All children are minor. Convict is living in a tenanted premises alongwith his family members. His parents are living separately at his native village at Rampur in U.P. He is having three sisters and four brothers. All of them are married and living separately with their respective families. Accused/convict is not a previous convict. However, one theft case is pending against him. 4 On the other hand, ld. Addl. P. P for State has prayed for imposition of maximum punishment upon the convict for the proved commission of offence.
5 Section 397 IPC is reproduced here for ready reference:-
"If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
6 It may be noted that Section 397 IPC does not provide any substantive sentence. It only provides that the imprisonment will not be less than seven years if the offender at the time of committing the robbery or dacoity uses a deadly weapon or causes grievous hurt to Sessions Case No. 124/11 Page 22/24 23 any person and attempts to cause death or grievous hurt to any person. 7 In Kalu alias Ram Kumar V. State of Madhya Pradesh, 1992, Crl. L. J, 2380 M.P, it has been observed that separate sentence in section 395 and 397 IPC is not permissible.
8 In the present case, accused/convict Nazim Khan has robbed the complainant Ashifa Alam of her jewellery and cash by using deadly weapon alongwith co-accused and he has been convicted U/S 392 IPC, which Section is also reproduced here for ready reference:
"Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
9 Since, imposition of sentence, in the case of robbery, by using deadly weapon, cannot be less than seven years in view of provisions contained in Section 397 IPC, the convict Nazim Khan is sentenced to simple imprisonment for a period of seven years. Since, imposition of fine is mandatory U/ S392 IPC, accused/convict is sentenced to a fine of Rs. 5000/-. In default of payment of fine, convict will suffer simple imprisonment for two months. 10 In the present case, gold earrings and silver pajeb belonging to complainant have been recovered from accused/convict Nazim Sessions Case No. 124/11 Page 23/24 24 Khan. In view of Section 71 IPC, no separate sentence is being imposed upon convict in respect of offence U/S 411 IPC. 11 Accused/convict is given the benefit of Section 428 CrPC.
12 As per record, accused/convict Nazim Khan has been in JC from 05.03.10 to 06.01.11 and from 23.03.12 till date. 13 A copy of this order be also given to the convict free of costs.
14 File be consigned to Record Room.
Announced in the open court today
on 26.03.12 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 124/11 Page 24/24