Jojha v. The State (NCT of Delhi)

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ? 2009:DHC:4061-DB SANJAY KISHAN KAUL, J.(ORAL)

1. These appeals have arisen out of the judgment of learned Additional Sessions Judge in Sessions case No.137/93 arising out of FIR No.265/87, P.S. Najafgarh in terms of which the appellants Jojha and Machu were convicted for the offence punishable under Section 397 lPC read with Section 394 IPC and vide a separate order dated 24.2.1995, they were convicted to undergo imprisonment for life and also to pay a fine of Rs.10,000/- each. In default of payment of fine, respective appellants were directed to undergo SI for further period of 2 ½ years.

2. Briefly stated the case of the prosecution is that on the night intervening 18/19.7.1987, appellants Jojha and Machu along with Tehrir, Rafiq (P.O.) and others committed a series of dacoities in Village Pochanpur, Baghdola and Ambrai and robbed Vijay Kumar, Amar Nath, Baljor Singh, Balram Singh, Satpal Singh, Sunita and others of their cash, gold, silver jewellery and wrist watches. At the time of committing dacoity, the appellants and their co-accused persons were armed with sarias and rods etc. and in the process, they caused injuries to Amar Nath, Balram Singh and Baljor Singh.

3. The Pradhan of Village Baghdola conveyed the information about the robbery to the police which was recorded as DD No.3 (Ex.PW12/A) dated 19.7.1987. On receipt of copy of the DD report, SI Chander Bhan reached at the spot of occurrence at Village Baghdola. However, by then the injured had already been removed to the hospital. He was informed about similar incidents which had taken place at Village Pochanpur. SI Chander Bhan then went to Village Pochanpur where he met complainant Vijay Kumar and recorded his statement Ex.PW2/A. On the basis of the said statement, formal FIR No.265/87 under Sections 397/395 IPC was registered at P.S. Najafgarh. SI Chander Bhan prepared the rough site plans and recorded the statements of the witnesses. During investigation, it came to light that the intruders had also committed dacoity in the houses of Rattan Singh, Ramesh, Surinder Singh, Baljor Singh and Balram Singh and in the process they had assaulted them.

4. On 22.7.1987, SI Chander Bhan along with police staff apprehended the appellants along with Rafiq and Tehrir in FIR No.272/87 under Sections 399/402 IPC, P.S. Najafgarh while they were planning to commit dacoity. On interrogation, respective accused persons including the appellants made disclosure statements about the dacoities. Appellant Jojha made a disclosure statement and pursuant to that he got recovered a stolen old wrist watch make Titan and a gold earrings weighing 2.[5] milligram which was taken into possession vide memo Ex.PW1/A. The gold earrings were identified by Shri Ramesh Chand as that of his sister-in-law Chand Kaur, which were robbed from her on the night intervening 18/19.7.1987. The appellant Machu also made a disclosure statement and pursuant to that, he led the police party to his Jhuggi and from there he got recovered one stolen old wrist watch make Homex, a stolen ladies wrist watch make HMT and a gold earring weighing 2.[1] milligram. The gold earring was identified by Satpal Singh as that of his wife Santosh which was robbed from her on the night intervening 18/19.7.1987.

5. The appellants were charged for the offences punishable under Sections 395/307/149 IPC and 397 IPC read with Section 395 IPC. The appellants pleaded not guilty to the charge and claimed to be tried.

6. During trial, PW[1] Ramesh, PW[4] Chand Kaur, PW[9] Baljor Singh and PW[7] Balram supported the case of the prosecution and they identified the appellants and the other accused persons as the intruders who entered into their respective houses and robbed them. PW[2] Vijay, however, turned hostile. Learned Trial Judge, relying upon the testimony of above referred witnesses, convicted the appellants for the offences punishable under Section 397 IPC read with Section 394 IPC and sentenced them accordingly.

7. Learned Shri Sumeet Verma, Advocate/Amicus Curiae for the appellants has submitted that learned Sessions Judge has not properly appreciated the evidence. According to him, the main plank of prosecution case is the FIR Ex.PW5/A registered on the basis of the complaint statement Ex.PW2/A given by PW[2] Vijay Kumar to SI Chander Bhan. He has submitted that PW[2] complainant Vijay Kumar has not supported the case of the prosecution and, therefore, learned Trial Court ought to have given the benefit of doubt to the appellants.

8. We do not find any merit in this contention because on scrutiny of the testimony of PW[2] Vijay Kumar, it transpires that he has supported the version of prosecution regarding the robbery committed at his house and his having made statement Ex.PW2/A to the Investigating Officer. He only failed to identify the persons who had trespassed into his house and committed the robbery. Merely because PW[2] Vijay Kumar was not able to identify the culprits, the prosecution case cannot be thrown away. On perusal of the records, it transpires that almost all the witnesses have generally supported the case of the prosecution regarding the robberies but some of them have not been able to identify the appellants as those robbers. However, Ramesh Chand, Chand Kaur, Baljor Singh and Balram Singh have identified the appellants. Therefore, we do not find any infirmity in the judgment of conviction returned by the learned Additional Sessions Judge.

9. Learned Amicus Curiae has pleaded that the punishment of imprisonment of life awarded to the appellants Jojha and Machu is too harsh considering the fact that nobody suffered serious injury in the incident. He has submitted that the appellants were rather young persons in the age range of 18 to 22 years at the time of commission of offence and in view of their young age, they deserve lenient treatment. Learned counsel for the State, on the other hand, has submitted that considering the nature of the offence and the fact that grevious injury was caused to one of the victims, the sentence of life imprisonment awarded by the learned Trial Judge is proper.

10. Appellants Jojha and Machu were young persons in the age range of 18 to 22 years at the time of commission of offence. Considering the facts and circumstances of the case and the young age of the appellants, we feel that the sentence of imprisonment for life awarded to the appellants is too harsh and they deserve one chance to reform themselves and become useful member of the society. Therefore, taking into consideration the overall facts and circumstances we are of the view that imprisonment for a period of 10 years in the instant cases would meet the ends of justice. Accordingly, the order on sentence is modified and sentence of imprisonment of life is altered to RI for a period of 10 years. The sentence of fine is maintained as it is. Both the appeals are allowed to that extent and order on sentence is modified accordingly. The appellants shall be entitled to benefit of Section 482 Cr.P.C.

11. Accused Jojha, as per the nominal noll has already undergone incarceration for a period of more than 10 years. As per the nominal roll of appellant Machu available on record, he has already undergone incarceration for a period of 9 years, 8 months and 3 days and besides, he has earned remission of 7 months and 7 days. Therefore, taking into account, the period of remission, he has also completed his sentence of 10 years as such. Therefore, there is no need to take them into custody.

SANJAY KISHAN KAUL, J. September 24, 2009 AJIT BHARIHOKE, J. gm