Delhi District Court
State vs 1. Sharif Khan S/O Haneef Khan on 15 September, 2011
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS
JUDGE05(NE):KARKARDOOMA COURTS : DELHI.
SC No.195/10
Unique ID No. 02402R0188932007
Date of institution: 05.03.2007
Date of transfer: 03.04.2010
Date on which reserved for order:20.8.2011
Date of delivery of order:09.09.2011
State Vs 1. Sharif Khan S/o Haneef Khan
R/o Village Chandiyana, PS Narsena, District
Bulandshehar, UP.
2. Naseer Ahmed S/o Haneef Khan
R/o Village Chandiyana, PS Narsena, District
Bulandshehar, UP.
3. Mohd Shafiq @ Chanda S/o Rafiq Khan
R/o B81, Gali no. 1, Kabir nagar, Delhi.
4. Shehjad @ Babloo S/o Ijaz Khan,
R/o H. no. B81, Gali no. 1, Kabir Nagar, Delhi.
FIR No. 560/06
PS Seelampur
U/s 308/452/506/427/201/34 IPC
JUDGMENT:
1. Flittering out unnecessary details the prosecution case is that on receipt of DD no. 25A dated 10.09.2006 IO SI Prem Singh along FIR NO. 560/06, PS Seelampur 1/27 with HC Ram Dutt reached at the spot i.e. H. no. E166, Gali no. 5, Subhash Mohalla, Moujpur, Delhi and came to know that the injured had already been taken to hospital by PCR van. He left HC Ram Dutt on the spot and went to GTB hospital. He collected the MLC of injured and recorded statement of injured Rahis Ahmed.
2. In his statement given to the police complainant Rahis Ahmed disclosed that on the ground floor of his house situated at E166, Gali no. 5, Subhash Mohalla, Maujpur he was running a factory manufacturing children's shoes; that accused Naseer Khan and his elder brother Sharif were also dealing in the same work i.e. manufacturing of shoes and slippers and his nephew Chanda who also used to run a shoe factory at Kardampuri and their employee Babloo (all accused already known to him) came to his factory and started beating his employee Shabbu. On hearing the commotion he came downstairs. Accused Sharif and Naseer Khan caught hold of his arms. Accused Chanda who was wielding a danda attacked him on his head. Accused Babloo who was holding a rod also hit him with the rod. Meanwhile his wife Afsa came downstairs. Accused Naseer Khan pushed her and thereafter all the accused persons started beating him with kicks and fists and said 'Aaj ise jaan se FIR NO. 560/06, PS Seelampur 2/27 maarenge wa har roj ka aaj kalesh hi khatam ker denge, yeh hamare karigaro ko apne kaarkhane main bula leta hai, aaj iska kaarkhana hi band karva denge chahey kuchh bhi ho jaaye'. Hearing the noise some mohalla people started coming and all the accused fled from spot and while fleeing accused Naseer Khan and Chanda set on fire his two wheeler scooter which was parked outside the house and also threatened that if the matter was reported to the police it would have dire consequences. PCR van removed him to GTB hospital. Since accused Naseer Khan, Sharif, Chanda and Babloo trespassed into his factory and attempted to kill him and his employee and also criminally intimidated him and damaged his scooter he wanted action against all the accused persons. On the basis of the statement IO prepared rukka and got the FIR registered. Site plan was prepared. IO seized the white kurta which the complainant was wearing at the time of incident and also seized the two wheeler scooter which was partially burnt. Two accused i.e. Naseer Ahmed and Sharif Khan who had been granted anticipatory bail by the Hon'ble High Court, were formally arrested on 30.09.06. Their disclosure statement was recorded and pointing out memo was prepared. Accused Shafiq @ Chanda and FIR NO. 560/06, PS Seelampur 3/27 Shehjad @ Babloo surrendered before the IO on 11.12.06. They were also arrested, their disclosure statement were recorded and pointing out memos were prepared. Photographs of the spot were also taken and after completing other necessary formalities charge sheet was filed in the court.
3. Accused persons were charged for the offences punishable u/s 452/308/506/435/34 IPC. Since all the accused persons abjured their guilt, trial was held.
4. Prosecution has examined 11 witnesses in support of its case. ● PW1 is Rahis Ahmed the complainant. PW2 Afsa is the wife of complainant who was present at the time of incident. PW4 is Shabbu employee who was given beatings by the accused persons. ● PW5 is Dr. Shabd Prakash who prepared MLC which has been proved as Ex. PW5/A. ● Seven police witnesses have been examined. PW3 is HC Ram Rattan who produced register no. 19 and proved relevant entry regarding deposition of scooter no. DL5SN5438 Bajaj Chetak as Ex. PW3/A. PW6 is HC Ram Dutt Sharma who along with ASI Prem Singh went to the spot for investigation. PW7 HC Surender Pal handed over DD no. 25 A regarding quarrel to HC Ram Dutt.
FIR NO. 560/06, PS Seelampur 4/27 PW8 is Ct. Sanjay Kumar. On 30.09.06 accused Naseer Ahmed and Sharif Khan who had been granted anticipatory bail by the Hon'ble High Court were arrested in his presence vide memo Ex. PW8/A and Ex. PW8/B and their personal search were conducted vide memo Ex. PW8/C and Ex. PW8/D. Their disclosure statements were recorded vide memo Ex. PW8/E and Ex. PW8/F and the pointing out memo is Ex. PW8/G. PW9 is HC Satyavir Singh. On 10.09.06 he was posted in PCR and he removed injured Rahis Ahmed to GTB hospital. PW10 is Ct. Surender Singh. On 11.12.06 accused Shafiq @ Chanda and Shehjad @ Babloo surrendered before the IO in police station Seelampur. They were arrested vide memos Ex. PW10/A and Ex. PW10/B, after their personal search was conducted vide memos Ex. PW10/C and Ex. PW10/D. The disclosure statement of accused Shafiq is Ex. PW 10/E and of accused Shehjad is Ex. PW10/F and the pointing out memo has been proved as Ex. PW10/G. PW11 is IO SI Prem Singh who has deposed about the manner in which the investigation progressed. He stated that on 10.9.06 when he was posted as ASI in Police Station Seelampur at about 7.40 PM, DD no. 25A Ex.PW11/A was recorded regarding extending of threats FIR NO. 560/06, PS Seelampur 5/27 by 5 to 7 miscreants which was marked to him. He along with HC Ram Dutt reached at the spot. Injured had already been removed to the hospital. He collected MLC of the injured and recorded statement of the injured vide Ex. PW1/A, prepared rukka Ex. Pw 11/B and handed over the same to HC Ram Dutt for registration of the FIR. The FIR bearing signature of ASI Suresh who has since expired is proved as Ex. PW11/D whose signature he identified at point A. He took into possession bloodstained white kurta of the injured and seized the same vide memo Ex. PW1/B. He prepared site plan with the assistance of PW Shabbu vide Ex. Pw11/C. On the date of occurrence he also took five photographs with his own personal digital camera which are Ex. PW11/F1 to Ex. PW11/F
5. Thereafter the accused persons were arrested, their disclosure statements recorded and pointing out memos were prepared.
5. Statement of accused persons were recorded u/s 313 Cr PC in which they denied the prosecution case and pleaded innocence. All the accused pleaded that they had been falsely implicated due to inimical terms between them and the complainant Rahis Ahmed as he used to reside in the same village in which they were residing. However, they did not lead any DE.
FIR NO. 560/06, PS Seelampur 6/27
6. I have heard Addl. PP for the State and the Ld. Defence Counsel Mr. Abdul Rauf and gone through the entire record including the sworn testimony of the witnesses on record and the documents proved.
7. The law was set into motion on the basis of DD no. 25A dated 10.9.06 which is proved as Ex. Pw11/A which was recorded at 7.40 PM wherein it is mentioned that in Subhash Mohalla Maujpur H. no. A/166, Gali no. 5/7 miscreants have come and they are threatening to kill. The incident as per the prosecution case took place around 7.15 - 7.30 PM and the DD was recorded around the same time.
8. The star prosecution witness PW1 Rahis Ahmed has stated that on 10.09.06 at about 7.157.30 PM it was Sunday. He along with his wife was present at the first floor of his house. He heard a noise and reached the ground floor at the shoe factory. He found that accused Babloo, Chanda, Naseer Khan and Sharif were beating his karigar Shabbu. They also gave beatings to him. Accused Chanda was having a saria and accused Babloo was having a danda. Accused Sharif and Naseer Khan caught hold of him and accused Chanda and Babloo gave danda and saria blow on his head FIR NO. 560/06, PS Seelampur 7/27 in the front and back side. His wife Afsa also reached there and tried to save him. Accused persons pushed her at the road and torn her wearing clothes as a result of which her bangles were broken and she sustained injuries on her hand. All the accused persons threw the articles of his factory on road. His scooter no. DL5SH 5438 which was parked outside his factory was set on fire by the accused persons. He informed the police at no. 100. PCR van reached there and removed him to GTB hospital. By that time accused persons had run away. Accused persons also used to run a shoe factory at Maujpur. They were taking his karigar to their factory. He was medically examined. Police of PS Seelampur also reached there and recorded his statement Ex.PW1/A. From the hospital he was brought to the Police Station by police officials and from police station he was taken to the place of occurrence. Photographer was called who took photographs of the place of occurrence. His wearing kurta was taken into possession vide memo Ex.PW1/B. His damaged scooter was also seized vide memo Ex. PW1/C. Police also went to the house of the accused persons but their houses were found locked. He identified his blood stained kurta which he was wearing at the time of incident as FIR NO. 560/06, PS Seelampur 8/27 Ex.P1 and the scooter in damaged condition which was set on fire by the accused persons as Ex.P2.
9. PW2 is Afsa wife of the complainant. She has corroborated PW1 in all material particulars except the fact that the complainant PW1 Rahis Ahmed stated that accused Chanda was wielding a saria and accused Babloo was having a danda. While PW2 stated that accused Chanda was having a danda with which he attacked on the head of her husband. Accused Babloo was having a saria and he attacked with saria on the head of her husband. She stated that on 10.9.2006, at about 7.00 7.15 P.M., she heard some noise from the ground floor from her shoe factory. When she reached there she found that the accused Naseer, Sharif, Chanda and Babloo were beating their karigar Shabbu. When they asked them why they were beating Shabbu they attacked them also. Accused Chanda attacked her husband with danda, accused Babloo caught hold of her hand with great force, as a result of which, she sustained fingers impression on her hand. Accused persons also set on fire the scooter which was parked outside the factory and thereafter they ran away. Accused Chanda also threatened her that in case they did not withdraw their case from the court they would face FIR NO. 560/06, PS Seelampur 9/27 consequences. Accused Babloo who was having a saria attacked on the head of her husband. They informed the police at number
100. She also identified bloodstained kurta which her husband was wearing at the time of incident.
10. It has been contended by Ld. defence counsel that there are discrepancies in the statement of prosecution witnesses. In his complaint, complainant stated that Chanda had a danda and Babloo was having a rod. While in his testimony before the court, he stated that accused Chanda was having a saria and accused Babloo was having a danda and therefore, this is a major discrepancies in the statement of PW1 Rahis Ahmed. He is not being corroborated by PW2 Afsa as also, as she stated that Chanda was having a danda and Babloo was having a saria with which he had hit her husband. However, after going through the complete statement of PW1 and PW2, I am of the view that variations pointed out Ld. Defence Counsel are not of any significance. Since there was a quarrel going on and four accused persons were there some confusion regarding the fact as to who was holding a danda and who was having a saria would not make such difference as would discredit the witness in toto. The statements of these two witnesses i.e. PW1 FIR NO. 560/06, PS Seelampur 10/27 Rahis Ahmed and PW2 Afsa are of same incident and substantially in similar words. Minor variations only lend further credence to the testimonies of these witnesses rather than damaging the case of the prosecution in any manner. The prosecution version has to be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated and not truncated or isolated. The trivial discrepancies in the testimony of the witnesses do not corrode the credibility of the witnesses. There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analyse and assess the evidence on record, with particular reference to its trustworthiness and truthfulness.
11. PW4 Shabbu has not supported the prosecution case. He categorically stated in his testimony that accused Naseer Ahmed, Sharif Khan, Mohd. Shafique and Shehjad were known to him who were resident of village near his native village. He did not know anything about this case. He did not know why accused persons were present in the dock and police never recorded his statement. In his cross examination he admitted that on 10.9.2006, he was working in the factory of Rahis Ahmed located at H.No.E166, FIR NO. 560/06, PS Seelampur 11/27 Gali NO.1, Subash Mohalla, Maujpur, Delhi. He denied that on that day at about 7.15 P.M., accused persons entered the factory and started beating him with fists and kicks. He also denied that accused Naseer Khan and Sharif caught hold of Rahis Ahmed by his arms and thereafter accused Chanda and Babloo wielded iron rod and gave danda blows on the head of Rahis Ahmed. He also denied that Naseer Khan and Sharif extended threats to Rahis Ahmed that they would kill him and put the entire matter to end on that day. He also denied that accused persons Naseer Khan and Chanda set the two wheeler scooter of Rahis Ahmed on fire. He also denied that his statement mark X4 was read over to him and he denied having made such statement before the police at any point of time. In his cross examination by the defence he stated that he did not know if there was an old enmity between the accused persons and complainant commencing from their native village who belonged to nearby villages i.e. Amar Pur and Chandiana, Distt. Bulandshahar. He also stated that he did not know if the accused persons had been falsely implicated. Therefore, this witness though present at the spot has not supported the prosecution case. It has been contended by Ld. Prosecutor that in FIR NO. 560/06, PS Seelampur 12/27 his testimony PW4 has stated that accused persons were well known to him and they were resident of village near his native village. Therefore this witness had been won over by the accused persons and the fact that he did not support the prosecution story would not effect the prosecution case. I find force in his contention that possibility of this witness having been won over by the accused persons cannot be ruled out. I am also of the view that simply because this witness has not supported the prosecution case, other witnesses whose testimony inspires confidence cannot be disbelieved.
12. The only medical witness examined in this case is PW5 Dr. Shabd Prakash who stated that on 10.9.06 when he was posted at GTB Hospital at about 9.30 P.M., he medically examined Rahis Ahmed s/o Sagir Ahmed, aged 38 years with alleged history of assault. On examination, the patient was conscious and oriented. On local examination, 0.5 cm abrasion on forehead touching hair line and 0.5 cm abrasion at occipital region scalp and 0.5 cm abrasion on left side of forehead were found. This witness has not been cross examined which means the defence admits that there were injuries on the person of injured.
FIR NO. 560/06, PS Seelampur 13/27
13. Ld. Defence counsel has contended that PW2 Afsa being wife of the complainant is an interested witness and her testimony cannot be believed. However, I feel that PW2 Afsa is one of the important witnesses in this case. Merely because she is the wife of the complainant her evidence cannot be per se discarded. Her presence at her residence was natural. When there is allegation of interestedness, the same has to be established. Mere statement that being relative of the injured she is likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. There was no reason as to why the complainant and his wife would shield the real culprit and would false implicate the accused persons. Difference in some minor detail which are there in the testimony of PW1 and PW2 does not affect the core of the prosecution case.
14. It has been argued by Ld. defence counsel that due to inimical terms between the complainant and the accused persons they have been falsely implicated. Enmity is a double edged weapon which FIR NO. 560/06, PS Seelampur 14/27 can be used by the accused as well as the victim party. Defence has not established through its evidence that they were falsely implicated. It has further been contended by the defence counsel that no independent public witness was joined in. In his testimony PW1 Rahis Ahmed has admitted that his residence is surrounded by thickly populated area. The fact that the police did not record the statement of any other person of locality raises doubt about the prosecution story. Per contra Ld. Prosecutor has contended that merely because the public witnesses have not joined the investigation, the complainant and his wife whose testimony were recorded do not become doubtful. I find force in the contention of Ld. prosecutor that these days rarely any public person prefers to be a witness. It is not justified to let off an accused on the score that the statement of other public witnesses were not recorded. It is settled principal that the law does not require plurality of the witnesses. Testimony of a single witness is sufficient for conviction, if such sole testimony is found to be trustworthy, reliable and inspires confidence of the Court. In criminal trial particularly in injury cases, court can base its conviction on the testimony of the injured provided it is sterling worth and is coupled FIR NO. 560/06, PS Seelampur 15/27 with the medical evidence.
15. The prosecution has been successful in proving through the testimony of the witnesses recorded that the injured Rahis Ahmed sustained injuries. Statement of PW1 Rahis Ahmed is corroborated by the medical evidence on record Ex. PW5/A and the presence of accused persons at the spot has also been established through the testimony of PW1 and PW2. As has come out from the evidence on record the dispute between accused persons and the complainant/injured was regarding the employment of the karigar of the accused persons by the complainant.
16. Now the question arises as to what offence all the accused persons have committed in view of the oral testimony of the injured and medical evidence on record. As per the statement of injured PW1 he was discharged from the hospital on the same day after medical treatment. He was brought to the police station by the IO wherein his statement was recorded. The accused persons are facing charge u/s 308/34 IPC in addition to other offences u/s 452/506/435/34 IPC. The prosecution was required to establish that the accused had intention or knowledge as contemplated u/s 308 FIR NO. 560/06, PS Seelampur 16/27 IPC at the time of causing injury to the complainant. In the instant case, there is no evidence to indicate any intention of the accused persons to commit an offence punishable u/s 308 IPC. The alleged weapon of offence i.e. danda and saria have not been recovered. The complainant has not stated anything about the size of danda and saria. As per the MLC there were only three simple blunt injuries (0.5 cm abrasion) on the forehead and occipital region. There is clear distinction between section 323 IPC and 308 IPC that every hurt cannot be equated with the hurt with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder.
17. I am supported in my opinion by Bishan Singh & Anr Vs The State, AIR 2008 Supreme Court 131 wherein it was held by Hon'ble Supreme Court that : "Before an accused can be held to be guilty under section 308 IPC, it was necessary to arrive at a finding that the ingredients thereof, namely, requisite intention or knowledge was existing. There cannot be FIR NO. 560/06, PS Seelampur 17/27 any doubt whatsoever that such intention or knowledge on the part of the accused to cause culpable homicide is required to be proved. Six persons allegedly accosted the injured. They had previous enmity.
Although overtact had been attributed against each of the accused who were having lathies, only seven injuries had been caused and out of them only one of them was grievous, being a fracture on the arm which was not the vital part of the body.
The accused, therefore, in our opinion, could not be said to have committed any offence u/s 308 IPC. The same would fall under section 323 and 325 thereof".
18. I also place reliance on Ranjit Singh Vs State - AIHS4282 (Del) wherein the opinion of the doctor was that the injuries found on the person of victim were simple and caused by blunt object, the conviction of the accused was altered from section 308 IPC to one under section 323 IPC.
FIR NO. 560/06, PS Seelampur 18/27
19. Having regard to the totality of the circumstances I am of the view that the accused persons cannot be imputed with the intention or knowledge as contemplated in section 308 IPC at the time of the commission of the act. Mere fact that in the present case the injury was caused on the head would not by itself be sufficient to establish the case u/s 308 IPC. Thus the prosecution has not been able to prove its case u/s 308/34 IPC. However, it is proved beyond doubt that all the accused persons in furtherance of common intention voluntarily caused simple injury upon the person of injured Rahis Ahmed and thus they have committed an offence punishable u/s 323/34 IPC.
20. Accused persons have been charged u/s 308/34 IPC. Offence punishable u/s 323/34 IPC is a minor offence to the offence under section 308/34 IPC within the meaning of Section 222 Cr. PC. Section 222 Cr PC provides that in a case where the accused is charged with a major offence and the said charge is not proved, the accused may be convicted for the minor offence, though he was not charged with it. The illustrations given in Section 222 Cr.P.C. amply describe that when an accused is charged with a major offence and the ingredients of the major offence are missing and FIR NO. 560/06, PS Seelampur 19/27 the ingredients of minor offence are made, if the two offences are cognate offences wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence visavis the other offence and the accused may be convicted for the minor offence though he was not charged for it. In view of the above, I hold that the prosecution has been successful in establishing the guilt of the accused persons u/s 323/34 IPC.
21. The accused persons are also charged for the offence punishable u/s 506/34 IPC for criminally intimidating Rahis Ahmad to cause his death. However, in his testimony PW1 Rahis Ahmad has not uttered a single word about criminal intimidation or threatenings extended by the accused persons or the fact that he was alarmed by such threatenings. PW2 Afsa has stated in her testimony that fifteen days ago accused Chanda threatened her that in case they do not withdraw their case from the court they would face consequences. But the above referred threatening was not in respect of the threatenings for which the accused persons have been charged and which was allegedly extended by the accused persons at the time of incident. In the absence of any evidence on FIR NO. 560/06, PS Seelampur 20/27 record regarding criminal intimidation or threatening extended by the accused persons, I acquit all the accused persons u/s 506/34 IPC.
22. As regards the offence u/s 452/34 IPC, the prosecution witnesses through their testimony have proved beyond any doubt that the accused persons committed house trespass by entering into the residential premises of Rahis Ahmad at the ground floor from where he was running his factory after having made preparation for causing hurt to Rahis Ahmad and his wife as two of the accused persons were holding saria and danda. PW1 Rahis Ahmad stated in his testimony that on 10.09.06 at about 7.15/7.30 pm when he reached at the ground floor of his shoe factory he found that accused Babloo, Chanda, Nasir and Sharif were beating his karigar Shaboo. They also gave beatings to him. Accused persons were armed with danda and saria. He has been corroborated on this point by his wife PW2 Afsa who also stated that they trespassed and were wielding danda and saria. Since the prosecution has been successful in proving that the accused persons committed house trespass and the same was committed by them after having made preparation for causing hurt. Therefore, I hold them guilty of FIR NO. 560/06, PS Seelampur 21/27 offence u/s 452/34 IPC.
23. The accused persons are also charged for commission of mischief by fire and causing damage to scooter of Rahis Ahmad to the amount more than Rs. 100/. PW1 Rahis Ahmad stated that his scooter no. DL5SH5438 which was parked outside his factory was set on fire by the accused persons. The damaged scooter was also produced before the court and was identified as Ex. P2. In his cross examination he denied the suggestion that only rear seat of the scooter got burnt. He volunteered that the tank of the scooter also caught fire. PW2 Afsa also categorically stated that accused persons set on fire their scooter which was parked outside the factory. Photographs of the damaged scooter are also proved on record as Ex. PW11/F2 and Ex. PW11/F3. Therefore the prosecution has successfully proved : ● That the accused persons caused the destruction of the property belonging to complainant.
● That they destroyed or diminished the value of the scooter.
● That the causing of such damage was wrongful
● That the mischief was caused by fire
FIR NO. 560/06, PS Seelampur 22/27
● That the damage caused thereby to the scooter amounted to Rs.
100/ or more.
● That the accused intended or knew that they were likely
thereby to cause such damage.
Accordingly, I hold all the accused persons guilty for offence punishable u/s 435/34 IPC as well.
24. Accused persons accordingly stand convicted for the offences punishable u/s 323/452/435/34 IPC. Let all the accused persons be heard on point of sentence.
Announced in open court (Nisha Saxena)
Date: 09.09.2011 Addl. Sessions Judge05(NE):
Karkardooma Courts: Delhi.
FIR NO. 560/06, PS Seelampur 23/27
IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS JUDGE03(NE):KARKARDOOMA COURTS : DELHI.
SC No.195/10 State Vs 1. Sharif Khan S/o Haneef Khan R/o Village Chandiyana, PS Narsena, District Bulandshehar, UP.
2. Naseer Ahmed S/o Haneef Khan R/o Village Chandiyana, PS Narsena, District Bulandshehar, UP.
3. Mohd Shafiq @ Chanda S/o Rafiq Khan R/o B81, Gali no. 1, Kabir nagar, Delhi.
4. Shehjad @ Babloo S/o Ijaz Khan, R/o H. no. B81, Gali no. 1, Kabir Nagar, Delhi. FIR No. 560/06 PS Seelampur U/s 323/452/435/34 IPC ORDER ON SENTENCE:
1. I have heard Ld. Addl P.P. for the State and Cl. Mr. Abdul Rauf and Mr. Z. Babar Chauhan on the point of sentence.
2. Counsels for the convicts have requested for taking a lenient FIR NO. 560/06, PS Seelampur 24/27 view on the ground that convicts have suffered the ordeal of trial since the year 2007. That they have been regular in the court and never misused the liberty of bail. It has been contended by Counsel for the convicts that convict Sharif is of 75 years of age and is suffering from various diseases; that convict Nasir Ahmed is 52 years of age and having nine children and he is the sole bread earner of his family; that convict Shafiq @ Chanda is 32 years of age and having responsibility of four children being sole bread earner of his family; convict Shahzad is 35 years of age and having five children and he is also the sole bread earner of his family. It is further submitted that the convicts have not been previously convicted and have been a peaceful citizen of the country and are ready to abide by any condition which may be imposed by this court and that this is their first offence and they have no previous criminal antecedents of any nature whatsoever.
3. Ld. defence counsel has moved an application for grant of probation to the convicts and also State that the complainant has already settled the matter with accused persons.
4. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of FIR NO. 560/06, PS Seelampur 25/27 each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. In the instant case the accused persons have been convicted for the offences punishable u/s 323/452/435/34 IPC and in view of the nature of offence I feel that it would be a fit case to grant benefit of probation to the accused persons. I place reliance upon Jagat Pal Singh Vs Stte of Haryana, AIR 2000 SC 3622 (1) wherein it was observed that the appellants have been convicted u/s 323/452/506 read with section 34 IPC and have been sentenced to three months simple imprisonment. It was held that Court should have taken note of provisions of Probation of Offenders Act or Section 360 Cr PC. The Supreme Court directed that instead of sentencing them to imprisonment, the accused persons should be required to execute a bond before the Magistrate for keeping good behaviour and peace for a period of six months
5. Considering the facts and circumstances of the case, I am of the view that the ends of justice would be subserved if the convicts are released on probation but with certain conditions. Convicts are accordingly released on probation for a period of two years on their furnishing personal bond in the sum of Rs. 25,000/ with one surety FIR NO. 560/06, PS Seelampur 26/27 each in the like amount. The convicts are also directed to be of good behaviour during the said period and not to commit similar offence otherwise they will be called again to receive sentence. They shall furnish local surety having permanent abode in Delhi. They are also directed to appear as and when called upon during the above mentioned period of probation.
6. It is further ordered that a sum of Rs.7000/ each (total Rs.28,000/) shall be deposited by every convict u/s 5 of the Probation of Offender Act, 1988 towards compensation which shall be paid to the injured. The amount shall be released to the injured persons after expiry of the prescribed period.
7. A copy of this order be sent to the Probation Officer to keep vigilance upon the convict during the period of two years and to report to this court if they are found violating the terms of bond furnished.
Announced in open court (Nisha Saxena)
Dated:15.09.2011 Addl. Sessions Judge03(NE):
Karkardooma Courts, Delhi.
FIR NO. 560/06, PS Seelampur 27/27