Ramdhani v. State, NCT Govt. of Delhi

1. The appellant- Ramdhani challenges judgment dated 18.12.2004 and order on sentence dated 03.01.2005 in Sessions Case No.89/2001 arising out of FIR No.281/2001 PS Shalimar Bagh by which he was convicted for committing offence punishable under Section 397 IPC and sentenced to undergo RI for seven years with fine ` 1,000/-. He was further convicted under Section 25/27 Arms Act and sentenced to undergo RI for two years with fine ` 500/-. 2013:DHC:1396

2. Allegations against the accused were that on 05.05.2001 at

09.20 A.M. at Tikona Park, Pitam Pura, he and his associates- Mahender, Santosh Kumar Aggarwal @ Bhaiya and Pappu robbed complainant- Khairatilal of his scooter bearing No. DL 1SK 2623 containing ` 60,000/-. The assailants were armed with weapons. The prosecution examined eleven witnesses to substantiate the charge. In his 313 statement, the accused pleaded false implication. On appreciation of the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment convicted Ramdhani and Mahender under Section 397 IPC. However, Santosh Kumar Aggarwal and Pappu were acquitted of all the charges. Being aggrieved Ramdhani has preferred the appeal.

3. During the course of arguments, learned counsel for the appellant on instructions from the appellant- Ramdhani stated that the appellant has opted not to challenge the conviction under Section 397 IPC and under Section 25/27 Arms Act. He however, prayed for modification of the order on sentence as the appellant has already undergone sentence for about more than 3 years.

4. I have considered the submissions of the parties and have examined the Trial Court record. Since the appellant has not opted to challenge the findings of the Trial Court on conviction under Section 397 IPC and under Section 25/27 Arms Act, the order of conviction of the Trial Court stands affirmed.

5. Regarding order on sentence, it transpires that the appellant- Ramdhani was sentenced to undergo RI for seven years. Vide order dated 21.07.2006, substantive sentence was suspended and he was admitted to bail. Nominal roll received from jail reveals that he had already undergone imprisonment for about 3 years and 6 months including remissions out of total imprisonment of seven years. The appellant was not involved in any other criminal case. His overall conduct in the jail is satisfactory. The appellant has remained on bail for the last seven years. Nothing has come on record that during this period he indulged in any other criminal act or misused the liberty. No useful purpose will be served to send the appellant to jail again to undergo the remaining period of sentence. There are peculiar facts and circumstances of the case to modify sentence. The Trial Court Record was not traceable despite best efforts. The statements of the witnesses recorded by the Trial Court could not be reconstructed. In the absence of statements of the prosecution witnesses, it is highly difficult to appreciate the evidence. Learned APP has no objection if the power under Section 482 Cr.P.C is exercised and the minimum sentenced awarded to the petitioner/appellant RI for seven years is reduced to the period already undergone by him in this case. Considering the peculiar and special circumstances where the original record is not available and taking into consideration all the facts and circumstances recorded above, for special and adequate reasons, the order on sentence is modified and the appellant is sentenced to undergo the sentence for the period already undergone by him in this case.

6. Since the appellant has been released for the sentence already undergone by him, he need not surrender before the Trial Court/Jail Superintendent.

7. Copy of this order be sent to Jail Superintendent, Tihar Jail for information.

8. Trial Court record, if any, be sent back forthwith along with copy of this order.

9. The appeal stands disposed in the above terms. Bail bond and surety bond of the appellant stand discharged.

JUDGE MARCH 14, 2013 tr