Kadir Ali @ Gulfam Ahmad v. State of NCT of Delhi

1. This is an application moved under Section 389 Cr.P.C. on behalf of the appellant seeking suspension of sentence. 1.[1] It has been submitted that the appellant has filed an accompanying appeal assailing the impugned judgement of conviction dated 23.10.2020 and the order of sentence dated 10.11.2020 in Sessions case No. 44687/15 in which the appellant was convicted and sentenced to undergo Rigorous Imprisonment of 6 years with fine for offences under Section 392/34 IPC. 1.[2] The suspension of sentence has been prayed on the grounds that the guilt of the appellant has not been proved beyond reasonable doubt; basic ingredients of offence under Section 392/34 IPC were not satisfied; chain of events linking the appellant to the alleged incident dated 03.09.2013 was not 2022:DHC:2882 proved; the appellant was acquitted in case FIR No. 37/13, Special Cell under Section 25 of the Arms Act, in which the disclosure statement of the appellant was recorded regarding his alleged involvement in the present case; no public witness was joined during investigation, which creates reasonable doubt about the stand of the prosecution; no DD entry was proved by the prosecution regarding arrival and departure of the police personnel; no bike was recovered on which the assailants were alleged to have escaped and no bullet fired by the third assailant has been recovered; remaining silver articles out of half kg allegedly looted articles were not recovered; no CCTV footage of the place of the incident or of nearby public streets was collected and the appellant has been wrongly convicted only on the basis of identification by PW-1 during TIP and before Court. 1.[3] On these basis, it has been submitted that the appellant has a good and arguable case in appeal. 1.[4] It is further submitted that the appellant is a young boy of 26 years of age, who has a family to look after. So, suspension of sentence has been prayed.

2. Notice was issued and nominal roll was summoned. 2.[1] As per the latest nominal roll, as on 08.07.2022, out of the Rigorous Imprisonment for 6 years with fine of Rs. 20,000/- and in default of fine, 3 months Simple Imprisonment, the unexpired portion of sentence is 3 years and 5 months, apart from Simple Imprisonment for 3 months in default of payment of fine. 2.[2] The case of the appellant is not covered under the guidelines laid down by the Hon’ble Supreme Court as he has not served half of the sentence. There are other grounds mentioned in the above paragraphs for release of the present appellant on suspension of sentence. In this case, the FIR was registered on the basis of the statement of one Mr. Satyaprakash, who was a jeweller and he had stated that on 03.09.2013 at about 4:15 p.m., two boys came to his shop and asked him to show silver bangles for a small child and when the complainant was showing them the silver bangles, another person came inside his shop, who was having a pistol (katta) in his hand and pointed the same towards the complainant and asked him to sit down and not to shout. 2.[3] He was further asked to take out the articles kept in the almirah and these 3 boys robbed him of number of silver jewellery articles and while running from there, they fired a bullet, which hit a vehicle parked nearby.

3. The present applicant and co-accused Faheem alias Pauna were apprehended by Special Cell, Delhi Police in two separate cases under the Arms Act, wherein they had made disclosure statements regarding their involvement in alleged commission of offence, and thereafter, they were formally arrested in the present case. 3.[1] The third accused could not be traced. During TIP, the present applicant was duly identified by the complainant as one of the three assailants. Similarly, when the evidence was recorded, PW-1/complainant had duly identified the present applicant.

4. As per the learned Trial Court, the necessary ingredients of the offence of robbery have been proved in the case in hand against the convicts. 4.[1] The assailants had entered the jewellery shop of the complainant; wrongly restrained him and put him in fear of instant death/hurt and robbed him of certain jewellery articles. The common intention of all the three accused is proved on the ground that they entered the jewellery shop and committed the robbery. So, the learned Trial Judge has come to the conclusion that the prosecution has proved its case beyond a reasonable doubt and the present applicant as well as the co-accused, Faheem alias Pauna (since Proclaimed Offender) were held guilty for the offence punishable under Section 392/34 IPC and order of sentence in this regard was passed on 10.11.2020 and the present appellant was ordered to undergo sentence of 6 years Rigorous Imprisonment, apart from payment of fine as aforesaid and Simple Imprisonment of 3 months in default. 4.[2] It is nowhere shown that the complainant had some personal enmity with the present appellant, who was duly identified by the complainant not only in Court but during TIP also. No previous acquaintance between the complainant and the appellant has been proved, so, the submission of the present petitioner that he is innocent and has been falsely implicated in the present case is prima facie not proved.

5. Under these circumstances, I do not find it a fit case for suspending the remaining sentence of the appellant and to release him on bail at this stage.

6. It is made clear that nothing stated hereinabove will come in the way of deciding the appeal on merits, as and when the same is heard on its turn.

7. The application is accordingly disposed of.

8. List in due course.