Mohd. Rabool v. State

$-29 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. A. 265/2016 % MOHD. RABOOL STATE Judgment dated 19''^ April, 2016 Appellant Through ; Mr. Smrat K. Nigam and Mr. Abhimanyu Walia, Advocates. Versus Respondent Through : Ms. Aashaa Tiwari, APP for the State with Inspector Parveen Kumar, SHO, PS-Prashant Vihar. CORAM: HON'BLE MR. JU!STICEgKS:SIS^4I^I ^ . HON'BLE MS. JUsItICE SANGITA DHINGR^'^EHGAL if fl ♦ *• # f'j ' j w R V fiC tx' - If S I ^ ^^5^ % G.S.SISTANI. J#(ORALI •0 Crl. M.(BI 577/2016

¶1Present a|plication stands d[isposed of in view of the following order passed in the mam appeal§"v^,^ M % ' \ iRRv. " >. /'■

¶2Application'stands disposediOfi:Pv> ; CRL. A. 265/2016 ' ^ ^ ^

¶3Present appeal has 6oen preferred by the"appellant under Section 374 read with Section 482 of the Code of Criminal Procedure impugning the judgment dated 28.01.2016 whereby the Additional Sessions Judge-04 (North), Rohini Courts, Delhi in Session's Case No. 154/1 held the appellant guilty for the offence punishable under Sections 411 of the Indian Penal Code and vide order dated 18.02.2016 sentenced him to undergo simple imprisonment for three years and to pay a fine of Rs.2,500/- and in default of payment of fine simple imprisonment Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. for two months for the offence under Section 411 of the Indian Penal Code,

¶4The prosecution ease in a nutshell is that on 02.02.2010 at about 2:00 p.m., Raju, domestic help of Sh. Praveen Thakur, husband of the deceased, came to Smt. Anjali and informed her that he had come to collect the lunch for Praveen Kumar but Smt. Mamta Thakur (since deceased) was not opening the door despite ringing the doorbell on which Smt. Anjali sent her maid servant to call the house of Sh.Praveen Thakur on intereptn,^J^fter sometime, Smt. Anjali was informed by her maiB^ihatlinfefebm^^had been picked up by male r iJ """' person who told her -tliat boyi^-should be senf after 15-20 minutes to collect the lunch:' On thi§ Smt. Anjali got suspicious and rushed to the house of j:§h.>#raveen Kumar: ahd^found blood'51yiri| on floor of fi u ^ j p drawing-eiim-dining room "and^^ also found the dead body of Smt.Manfta Thakur lying nnJ4^|D|ol of blood in the bedroom. Suddenly,Accused back^ind locked her inside the l5athroom;^ifeig^^?Afetds/ Kumari' Vidhi Thakur, •>x. n daughter of Sh.Praveen ,^timmifiaiMe«iffside the house and opened the door of the bathroom'^^^Jpli^^S sSSs^^^'W'^^^^^^^ revealed that cash amount of Rs.8,00,000/- and jewellary articles had been robbed from the house. One blood stained knife was found lying beneath the bed in the bedroom. Another knife having no blood stain was also found below the sofa in the drawing room. During investigation, on 05.02.2010 Special Staff arrested the accused Mohd. Rabool from Rohini, Sector-1, Delhi who made a disclosure that on

02.02.2010, he along with co-accused Gulshan Taneja went to Friends Tower Apartment, Sector-9, Rohini, Delhi. He remained present outside the said apartment whereas co-accused Gulshan Taneja committed the crime. Two gold bangles and cash amount of Rs.41,940/- were recovered from the accused Mohd. Rabool. On an secret information accused Gulshan Taneja was also apprehended from the Patna Railway Station, Patna.

¶5To bring home the guilt of the accused and to prove its case, the prosecution examined 33 witnesses in all. The statement of the ^ accused was recorded under Section 313 of the Code of Criminal Procedure wherein he rei^d^^sj^frmocence and examined one witness m his defence: M

¶6Mr. Nigam, learned counsel for the appellant at the outset submits that he has instructions not to press the present appeal on merits by which #

VT'. 1 he has been convicted under Section 411 of the Indian Penal Code and B

mm'm'm'mm i to contest the quantum of sentence, which has been awarded to him; i y II II If/M! that out of the sentence of three years awarded to the appellant, he has already undergone two years three months and twelve days as on the date of filing of the appeal, besides he has earned remission; that the ¥ appellant belongs to a poor family and he is the only bread winner of his family; that the appellant is a married man and has three minor children (two daughters and one son) with nobody to support the family; that the appellant is a first-time offender and has no criminal background; that so far as sentence of three years is concerned, the same is harsh and disproportionate to the guilt of the appellant and hence, leniency may be shown to the appellant by imposing the sentence already undergone by him.

¶7Per contra, Ms. Aasha Tiwari, learned counsel for the State contends that the appellant has committed an offence under Section 411 of the Ci l. A. No. 265/2016 Indian Penal Code by receiving stolen goods knowingly which was looted by accused Gulshan Taneja after committing a murder, therefore, no leniency may be shown to the appellant so far as imposition of sentence is concerned.

¶8The appellant has been convicted under Section 411 Indian Penal Code, which reads as under: "411. Dishonestly receiving stolen property - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." The Trial Court has returned the fmding against the appellant after proper appreciation of the evidence available on record. The pieces of evidence ultimately connecting the appellant with the partly robbed s n n | articles i.e. two bangles belongingftowne deceased and cash amount of il ifl-lllJj.lF S Rs.41,940y-have been seized from his possession. These bangles were identified by PW5 Praveen fhakur during the Test Identification Parade as belongin^toflhe^dSSSi^ied. ^ H&b'eyrwe find no reason to interfere in the impugned judgment.^mOTCs^'^a also does not wish to challenge the same.'^isi-.- --'

¶10So far as the aspect of sentence is concerned, as per the nominal roll of the appellant, the appellant has already spent two years three months and twelve days in incarceration besides remission earned. The appellant is a young man aged about 36 years having the entire responsibility of his family including three minor children. The appellant has a clean antecedent and is not involved in any other criminal case. His overall jail conduct is satisfactory. Keeping in view the totality of the facts and circumstances of the case, we are of the n

¶10considered view that the interest of justice shall be served if the sentence awarded to the appellant is reduced to that of the period already undergone. Accordingly, the sentence awarded to the appellant under Section 411 of the Indian Penal Code is reduced to the period already undergone by him and also to pay a fine as directed by the Trial Court. Resultantly, the present appeal is partly allowed. The appellant is in jail. He shall be released forthwith unless required in some other case. Let a copy of this^order be sent to the Superintendent, Tihar Jail, l 1 Delhi. r 4 .l I G. S. SISTANI, J ,fA|s ^ ■?.{} "O " APRIL 19, 2016 gr Jiff « ''•"A Vc'>l ■ y f :! 'A .-.1 ^E?». IN SEHGAL, J