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2013 DIGILAW 214 (DEL)

Noor Alam v. State (Govt. of NCT) Delhi

2013-01-29

S.P.GARG, SANJIV KHANNA

body2013
JUDGMENT : S.P.Garg, J. 1. The appellant-Noor Alam has preferred the present appeal against the judgment dated 28.04.2010 and order on sentence dated 30.04.2010 of the Additional Sessions Judge in FIR 326/2004, Police Station Timar Pur (Sessions Case No.1/2002) by which he was convicted for committing offence punishable under Section 307/34 IPC and sentenced to undergo imprisonment for ten years with fine of Rs. 20,000/- and failing to pay fine to undergo Simple Imprisonment for six months. 2. Allegations against the appellant were that on 01.07.2005 at about 10:45 P.M. at Pusta, near Ganda Nala, Gandhi Vihar, Timar Pur, Delhi he, in furtherance of common intention with his associates Noor-Salam and Mohd.Hafaz Alam (Proclaimed Offender) attempted to murder Samir-ul-Hasan. The appellant caught hold the victim and Noor-Salam fired at him twice with a country made pistol. 3. The prosecution examined 16 witnesses to prove the charge. Statement of accused under Section 313 Cr.P.C. was recorded and he pleaded false implication due to enmity. He examined himself in defence. After hearing the learned Additional Public Prosecutor and the counsel for the appellant and appreciating the evidence on record, by the impugned judgment, the appellant was convicted for the offence previously described. Being aggrieved, he has filed the present appeal. 4. During the course of arguments on appeal the learned counsel for the appellant, on instructions from the appellant, stated that he was not challenging the conviction under Section 307 IPC. Prayer was made to modify the order on sentence as the appellant had already undergone substantial period of sentence awarded to him. 5. I have examined the Trial Court record. Since the appellant has opted not to challenge the findings of the Trial Court on conviction, his conviction under Section 307/34 IPC is affirmed. 6. Regarding order on sentence, the appellant was sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 20,000/-. Nominal roll dated 01.08.2011 reveals that he has already served four years, ten months and fifteen days in custody. He earned remission of nine months and twenty-two days, the period undergone has since increased to about seven years. Nominal roll also reveals that the appellant is not involved in any other criminal case. He is not a previous convict. 7. Perusal of the file reveals that the appellant was the king-pin who fired twice with a country made pistol at the victim Samir-ul-Hasan. Nominal roll also reveals that the appellant is not involved in any other criminal case. He is not a previous convict. 7. Perusal of the file reveals that the appellant was the king-pin who fired twice with a country made pistol at the victim Samir-ul-Hasan. During trial, the appellant did not appear regularly and was declared Proclaimed Offender. The victim suffered ‘grievous’ injuries on his body and remained confined to hospital. The occurrence took place on 01.07.2005. The victim/injured Samir-ul-Hasan’s statement was recorded on 13.12.2005. The injured/complainant-Samir-ul-Hasan was brought to the court for examination on cot (as per court observation). Apparently, the victim did not recover from the injuries sustained by him. The victim expired on 28.01.2007 in the village. Family members of the victim claimed that the death of the injured was due to injuries sustained by him in the incident. However, no cogent evidence came on record to show that there was close nexus between the injuries and the death of the victim as no post-mortem was conducted. The fact remains that the injuries to the victim were grievous in nature and were on vital organ of the body. 8. Considering the aggravating and mitigating circumstances the order on sentence is modified and the substantive sentence is reduced from RI ten years to RI for nine years. Other sentences are left undisturbed. 9. The appeal is disposed of in the above terms. 10. Copy of the order be sent to the appellant through Superintendent, Tihar. 11. Trial Court record be sent back with the copy of the order.