Punjab-Haryana High Court
Ayub And Others vs State Of Haryana on 12 August, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Appeal No.1806-SB of 2002
Date of Decision: August 12, 2010
Ayub and others .......Appellants
Versus
State of Haryana .......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr.DS Brar, Advocate
for the appellants
Mr.Pradeep Virk, Deputy Advocate General, Haryana.
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JITENDRA CHAUHAN, J.
1. This appeal is directed against judgment and order dated 28/30.10.2002 passed by the learned Additional Sessions Judge, Gurgaon, (hereinafter referred as "Trial Court") whereby in case FIR No.218 dated 24.12.1999 registered at Police Station Ferozepur Jhirka, District Gurgaon, the accused-appellants have been convicted under Sections 489- C and 243 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/- and in default thereof, to further undergo rigorous imprisonment for one month under Section 243 of the Indian Penal Code and also to undergo rigorous imprisonment for a period of three years under Section 489-C of Criminal Appeal No.1806-SB of 2002 -2- the Indian Penal Code. The substantive sentences were ordered to run concurrently.
2. The brief facts, as narrated in para 2 of the judgment of learned Trial Court, are that:
"On 24.12.1999, Babu Lal, SI/SHO along with Subhash Chand ASI, Constable Pohap Singh No.589, Constable Kishan Singh, No.1006, Constable Har Dayal No.1381 were present at Ambedkar Chowk, F.P. Jhirka for patrolling and crime checking. During that period, a secret information received by Babu Lal SI that Ayub s/o Idu, Hassan Mohd. S/o Jagrup, Issa s/o Mohd. Khan residents of village Nai Subhan s/o not known, Amin s/o Jharmal residents of village Tirwara were sitting near Sumer Petrol Pump near Sulela turning with Maruti van No.DL-5CA-2373 and they had placed a attachi-case in their front and were waiting for the customers and if they are raided, they could be caught red-handed with fake articles. On the above information, Babu Lal SI formed a raiding party and proceeded towards the spot in Govt. vehicle along with police officials. When they tried to nab the accused with the help of accompanying officials, then all the persons tried to run away leaving the attachi-case behind. Then Ayub, Hassan Mohd. and Issa were nabbed at the spot. Remaining succeeded in escaping taking the benefit of darkness in the van. On search of attachi-case, fake currency note of denomination of Rs.500/- bearing No.3CQ-776717, seven biscuits bearing UBS weighing 10 tolas and was having No.9990 inscribed thereon, 170 Criminal Appeal No.1806-SB of 2002 -3- ginnies having inscription victoria in English, 53 coins having inscription of one rupee India were recovered from a bag made of cloth. One each from biscuits, ginnies, coins were taken out as sample and the same were sealed in a palanda with seal mark KL. Remaining articles including attachi-case were also sealed in a palanda with seal mark KL. Separate palanda for currency note with seal mark KL was prepared. The seal was handed over to Subhash Chand ASI after use. All the above palandas were taken into possession by the police vide a memo. The accused by keeping the above articles showing the same to be made of pure gold committed offence u/ss 489-A, 489-B, 489- C, 239/240 and 243 IPC. A case under the above sections was registered against the accused persons. After completion of investigation, they were challaned and sent up for trial."
3. The learned Trial Court charge sheeted the accused-appellants for the offence under Sections 489-A, 489-B, 489-C, 239 read with Sections 240 and 243 of the Indian Penal Code to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined Head Constable Ayub Khan as PW1, Naresh Kumar, Draftsman as PW2, SI Ballu Ram as PW3, Head Constable Bhajjan Lal as PW4, Constable Jasbir Singh as PW5, Constable Raj Kumar as PW6, ASI Subhash Chand as PW7, SI Babu Lal as PW8 and MHC Sobha Ram as PW9.
5. Statements of the accused-appellants under Section 313 of the Code of Criminal Procedure were recorded in which they denied the allegations levelled against them and pleaded their false implication. Criminal Appeal No.1806-SB of 2002 -4-
6. Upon appreciation of evidence adduced on record, the learned Trial Court convicted and sentenced the accused-appellants in the manner indicated above. Hence this appeal.
7. Learned counsel for the appellants does not challenge the judgment and order of the conviction/sentence on merits. However, he has prayed for reduction of sentence so awarded to the accused-appellants.
8. Learned counsel appearing for the State has furnished custody certificate, which is taken on record, and submitted that no leniency should be shown to the appellants since the offence has been proved.
9. The Hon'ble Supreme Court in 2006(4) R.C.R. (Criminal) 645 titled as "R. Soundarajan V. Seed Inspector, Coimbatore and another"
observed as under:-
"26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during the pendency of these appeals and they are now not required to surrender. The fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment"
10. In another case titled as "Umrao Singh V. State of Haryana", 1981 AIR (SC) 1723, the Hon'ble Supreme Court observed as under:-
"After hearing counsel for the parties, we are Criminal Appeal No.1806-SB of 2002 -5- satisfied that this is a case falling under the proviso of Section 16 (1)(a)(i) and therefore, for adequate and special reasons, the sentence lower than the minimum prescribed could be awarded.
The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents.
2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith.
3. The appeal is disposed of accordingly".
11. As per custody certificates produced on record, appellants Ayyub, Hasan Mohd and Isha have already undergone for four months and appellant Kasam has already undergone for 18 days only. From the record, it is made out that the FIR in the instant case is of the year 1999 and the appellants have faced the agony of protracted trial for about 10-1/2 years. They have not mis-used the concession of bail and no previous antecedents have been brought to surface so as to condemn them as habitual offenders.
12. Keeping in view the fact that the accused-appellants have faced the agony of trial for about 10-1/2 years and as stated, are not habitual Criminal Appeal No.1806-SB of 2002 -6- offenders, their conviction stands maintained. However, the sentence of rigorous imprisonment is reduced to the one already undergone by them. and the sentence of fine is enhanced to Rs.25,000/- each besides the fine already imposed by the learned Trial Court. They shall deposit this amount before the Chief Judicial Magistrate, Gurgaon within a period of three months from the date of receipt of a copy of this order.
13. In case, the appellants fail to comply with the direction of depositing the amount of fine with the concerned Court within the period stipulated above, this appeal shall be deemed to be dismissed.
14. With the above modification in the sentence, the present appeal stands disposed of.
( JITENDRA CHAUHAN )
August 12, 2010 JUDGE
SRM
Note: Whether to be referred to reporter ? Yes/No