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2014 DIGILAW 1218 (DEL)

Hafizur Rehman @ Nadeem v. State

2014-04-16

INDERMEET KAUR

body2014
Judgment : Indermeet Kaur, J. (Oral) 1. There are two appellants before this Court namely Hafizur Rehman and Nadeem. They have been convicted by the Sessions Judge under Sections 392/394 read with Section 34 of the IPC and each of them had been sentenced to undergo RI for a period of 5 years for the offence punishable under Section 392/34 of the IPC besides a fine of Rs.2,000/- and in default of payment of fine to undergo RI for a period of 6 months; for the offence under Section 394/34 of the IPC, each of the two convicts had been sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo RI for 3 months. Benefits of Section 428 of the Cr.PC have been granted to the convicts. 2. Nominal rolls of the appellants have been summoned. They disclose that Hafizur Rehman has suffered incarceration for about 2 years and 9 months (which includes the remission period) as on the date when he was granted bail; convict Nadeem has undergone incarceration of 3 years and 11 months including remission. 3. The incident is dated 23.10.2003. The complainant was Pankaj examined as PW-14. He has on oath, reiterating the averments made in his complaint (Ex.PW-14/A), stated that the two accused persons had committed robbery in his house; at about 05:00 PM when he was sitting with his friend Amit Sharma (PW-13) and watching TV, the door bell rang; Amit opened the door. Two persons entered the room of whom one was Nadeem and other was Hafizur Rehman; they gave beatings to PW-14 and to his friend PW-13 and demanded money from them; PW-14 was given fist blow on his upper lip; his almirah key was snatched and a black rexine bag containing Rs.6,500/- was taken away. On raising alarm, the shopkeepers around the area tried to apprehend the accused persons. They managed to flee but the black bag containing the money was left at the place of the incident. 4. During the course of investigation, the accused persons were apprehended. The line of investigation started from the two mobile phones which had been robbed of the victim i.e. a Sony Ericsson and a Motorola. Muneer Khan (PW3) a shopkeeper in Gaffar Market had disclosed that Motorola mobile phone had been sold to him by Hafizur Rehman. 4. During the course of investigation, the accused persons were apprehended. The line of investigation started from the two mobile phones which had been robbed of the victim i.e. a Sony Ericsson and a Motorola. Muneer Khan (PW3) a shopkeeper in Gaffar Market had disclosed that Motorola mobile phone had been sold to him by Hafizur Rehman. Accused persons were thereafter apprehended on 10.12.2003 i.e. almost 1- ½ months after the date of the incident. Accused Hafizur Rehman had been identified in the TIP proceedings; co-accused Nadeem had refused TIP. Another incriminating piece of evidence relied upon by the prosecution against the accused was chance print of left middle finger of accused Hafizur Rehman proved in the report of the finger print expert (Ex.PW-18/A). 5. On the basis of the aforenoted evidence collected by the prosecution, the accused persons had been convicted and sentenced as aforesaid. 6. At the outset, learned amicus-curiae appearing for both the accused persons have tendered detailed arguments. Appellant Hafizur Rehman is also present in Court. After some arguments, learned counsel for the appellants state that in case this Court is not inclined to interfere in the merits of the case, they pray for a leniency in the sentence; submission being that out of total 5 years of incarceration ordered against each of them, appellant Hafizur Rehman has already undergone a sentence of about 3 years whereas appellant Nadeem has already undergone sentence of almost 4 years. It is stated that presently the accused persons are on bail and both of them have a family to support and are doing fruitful work. Appellant Hafizur Rehman who is present in Court states that he is doing the work of printing in Sadar Bazar at a salary of Rs.6,500/-. Both of them have families to look after and in case they are ordered to be re-incarcerated, their families would be on the verge of starvation. 7. After perusal of the record and noting the contentions and submissions made by the learned counsel for the parties, this Court is not inclined to interfere with the conviction of the appellants which is maintained both under Sections 392 and 394 read with Section 34 of the IPC. The victim Pankaj had received injuries. 7. After perusal of the record and noting the contentions and submissions made by the learned counsel for the parties, this Court is not inclined to interfere with the conviction of the appellants which is maintained both under Sections 392 and 394 read with Section 34 of the IPC. The victim Pankaj had received injuries. Accused Hafizur Rehman had been identified in the TIP proceedings; co-accused Nadeem had refused TIP for which an adverse inference had been drawn against him by the trial Court and rightly so. The chance print (Ex.PW-18/A) evidencing the left middle finger of convict Hafizur Rehman on the spot of incident also speaks volumes against Hafizur Rehman. Role and complicity of both the accused has been established. 8. However, keeping in view the period of time since which the trial is on i.e. almost one decade as the incident relates to the year 2003; parties have undergone not only the long and emotional trauma of trial but also the fact that they have remained in jail for the period as aforenoted; one of the object of penal punishment also being reformative, this Court, at this stage, would not be inclined to re-incarcerate the appellants who even in the jail had a satisfactory conduct as is reflected from the nominal rolls. 9. Accordingly, while maintaining the conviction, both the accused are sentenced to the period already suffered by each of them; there is however a modification in the fine; the earlier fine which had been imposed by the trial Judge and has been paid remains unaltered; each of the convicts shall however pay an additional fine of Rs.10,000/-to the State within a period of one week failing which they shall undergo SI for a period of 3 months. 10. With these directions, these appeals are disposed off.