Delhi District Court
Mohd. Habib vs The State on 4 May, 2011
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IN THE COURT OF SH. B.S. CHUMBAK: ADDL. SESSIONS JUDGE
KARKARDOOMA COURTS:DELHI
Case ID Number 02402R0039322011
Crl. Appeal no. 01/11/11
Assigned to Sessions 04/02/11
Arguments heard on 04/05/11
Date of order 04/05/11
IN THE MATTER OF
MOHD. HABIB
S/O MOHD. MONIR HUSSAIN
R/O H.NO. B-1/96,
VILAL MASJID, KABIR NAGAR,
SHAHDARA,
DELHI-110032. ....APPELLANT
Versus
THE STATE
(NATIONAL CAPITAL TERRITORY OF DELHI ) ....RESPONDENT
ORDER
1. Appellant has challenged the order dated 18.01.2011 passed by Ld. ACMM by virtue of which appellant has been convicted for the offence u/s 457/380/511/34 IPC on the ground of pleading guilty by the appellant and sentenced for RI for three years for offence u/s 457 IPC and to pay fine of Rs.5000/- in default of payment of fine accused shall further SI for six months and was also sentenced RI for three years for the offence u/s 380/511 IPC and to pay fine of Rs.5000/- and in default 2 further SI for six months.
2. Brief facts of the case in nutshell are that a case u/s 457/380/511/34 IPC was registered at PS Shahdara vide FIR no. 584/10 on the basis of complaint filed by one Sh. Kapil Kumar s/o Om Prakash Gupta r/o H.No. 295, Bada Thakurdwar, Gali Ganga Ram, Teliwara, Delhi wherein he stated as under :
"In the intervening night of 05.06/11/10 at about 1:45 a.m he was closing his jewellary shop bearing no. 1038, Railway Road, Shahdara, Delhi. In the meantime he heard voice of knocking from the back side of his shop. On hearing voice he reached there and saw two boys trying to make hole in the wall with the help of an iron rod. He raised alarm and on hearing noise police personal who was on patrolling duty reached there and caught hold one of them who was having an iron rod in his possession and other boy run away from the spot. After completion of all the necessary investigations charge sheet for the offence u/s 457/380/511/34 IPC r/w section 14 of Foreigner Act was filed.
3. After hearing arguments Ld. ACMM framed the charge against the appellant u/s 457/380/511 IPC but discharged him for the offence u/s 14 of Foreigner Act.
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4. Appellant engaged Sh. V.K. Jha Advocate on his behalf to defend his case but due to improper exchange of communication between his counsel and the appellant, appellant moved an application for pleading guilty for the offence as alleged against him and on the ground of pleading guilty the appellant was convicted for the offence as alleged against him and sentenced for a term of imprisonment for three years and to make payment of fine of Rs.5000/- for the offence u/s 380/511 IPC. Fine has been paid and on feeling aggrieved by remaining part of sentence I.e imprisonment for three years the present appeal is preferred.
5. Notice of the appeal was served upon Ld. Addl. PP for state. Arguments heard. Ld. Addl. PP for state submitted that as per provisions of section 375 of Cr.P.C no appeal lies against the order when accused pleads guilty.
6. On the contrary Ld. counsel for appellant submitted that as per clause
(b) of section 375 of Cr.P.C appeal is maintainable to the extent or legality of sentence however, it is admitted by Ld. counsel for appellant that no appeal can be filed against the order of conviction but on the point of extent and legality of sentence appeal is maintainable before 4 this court.
7. It is further pleaded that in view of the facts and circumstances of this case it is also established that as per prosecution version it was an attempt to make a hole in the back wall of the shop however, no offence was fully committed. The testimony of the complainant also appears to have been unworthy of credit on the face of it as he was opening his shop till 1:45 a.m I.e after midnight which is in violation of the provisions of Shop and Establishment Act.
8. It is further pleaded that since registration of the case accused is in jail and has suffered a lot while appearing before this court from the jail and requested for sentencing the accused for the term of imprisonment for which he has already undergone.
9. After hearing arguments on behalf of Ld. Counsel for both the parties I also carefully perused the provisions of section 375 of Cr.P.C which reads thus:
"No appeal in certain cases when accused pleads guilty - Notwithstanding anything contained in section 374, where an accused person has pleaded guilty and has been convicted on such plea, there shall be no appeal-5
(a) if the conviction is by a High Court; or
(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first or second class, except as to the extent or legality of the sentence."
10.In view of the provisions of section 375 Cr.P.C I am of the view that appeal is maintainable to the extent of legality of sentence and not against the order of conviction.
11.I also carefully perused the provisions of section 457, 380 and 511 IPC which reads thus :
"Section 380 IPC :
Theft in dwelling house etc - Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 457 IPC :
Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment - Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the 6 offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years.
Section 511 IPC :
Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment - Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment for any description provided for the offence, for a term which may extend to one- half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
12.On perusal of the aforesaid provisions for which charge sheet was filed by the prosecution and also taking into consideration the facts and circumstances of this case coupled with the fact that it was only an attempt to commit the offence I am of the considered view that sentence awarded by Ld. ACMM is on higher side. I accordingly, modified the order on sentence to the extent that appellant is sentenced for a term of imprisonment for which he has already been undergone for the offence 7 u/s 457/511 IPC and to pay fine of Rs.5000/- in default SI for one month and further sentence for a term of imprisonment for which he had already undergone u/s 380/511 IPC and to pay fine of Rs.5000/- in default further SI for one months for the offence u/s 380/511 IPC. Fine has admittedly been paid by the appellant in the court of Ld. MM, therefore, accused is directed to be released from jail, if not required in any other case. Order on sentence is modified accordingly. Trial court record alongwith copy of the order be sent to the court of Ld. ACMM on 05.05.2011 at 2:00 p.m. for compliance. Appeal file be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 4th May 2011 8 Crl. Appeal No. 01/11 04.05.2011 Present: Sh. S.K. Dass Ld. Addl. PP for state.
Sh. M.S. Rawat Advocate for the appellant.
Vide separate order I modified the order on sentence to the extent that appellant is sentenced for a term of imprisonment for which he has already been undergone for the offence u/s 457/511 IPC and to pay fine of Rs.5000/- in default SI for one month and further sentence for a term of imprisonment for which he had already undergone u/s 380/511 IPC and to pay fine of Rs.5000/- in default further SI for one months for the offence u/s 380/511 IPC. Fine has admittedly been paid by the appellant in the court of Ld. MM, therefore, accused is directed to be released from jail, if not required in any other case. Order on sentence is modified accordingly. Trial court record alongwith copy of the order be sent to the court of Ld. ACMM on 05.05.2011 at 2:00 p.m. for compliance. Appeal file be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi:04.05.11