Sohan Lal @ Sonu @ Akash & Anr v. State of NCT of Delhi & Anr

1. By way of the present appeal, the appellant seeks to assail the judgement of conviction dated 08.09.2017 and order on sentence dated 27.09.2017 passed by the ASJ, Dwarka Courts, Delhi in SC No. 55/2014, arising out of FIR No. 392/2009 registered at P.S. Najafgarh under Sections 392/397/34 IPC. Vide order on sentence, the appellant was directed to undergo rigorous imprisonment for 7 years alongwith fine of Rs. 2,000/- for the offence under Section 397 IPC. Benefit of Section 428 CrPC was given to the appellant. The sentence of the appellant was suspended vide order dated 02.02.2018.

2. Briefly, the prosecution case is that on 01.11.2009 at about 5.00 pm, when the complainant Preeti Gupta (PW[1]) was alone at her house, four boys, including the present appellant, were standing near the gate. The appellant pretended to have just talked with someone on phone and told her that they had come to repair the generator. The complainant, thinking her husband had sent them to repair the generator, let them in and asked them to go to the third floor. When the complainant went to confirm it from her husband telephonically at the first floor, the appellant and one co-accused Jaspal Singh @ Suraj restrained her. The appellant pointed a pistol at her and told her to handover whatever she had and also asked about the lockers. Thereafter, two other accused also came and took her to the third floor. The accused persons ransacked the almirahs and beds and removed all jewellery from them. Two mobile phones and Rs.[2] lakhs cash were also taken by the accused persons.

3. Following investigation, charges came to be framed under Sections 397/411 IPC, to which the appellant pleaded not guilty and claimed trial. The prosecution examined 20 witnesses. The defence did not lead any evidence.

4. The complainant (PW[1]) in her deposition reiterated the above version. Though she initially didn’t identify the accused persons, she later pointed at the appellant and stated that he was one of the accused who had come to her house first and who pretended to show her the mobile phone and later on pointed the pistol at her. The complainant was consistent as to the sequence of events and role of accused persons. She identified some of the recovered items in judicial TIP (Ex. PW-1/B) and produced the jewellery articles (Ex.PW-1/C), cash and mobile phone (Ex.PW-1 /D) which had been released to her on superdari during trial. The Husband of the complainant, Atul Gupta was examined as PW[2]. He stated that immediately after the incident, PW[1] called him at the shop and within 5-7 minutes he reached the spot and called the police. PW[2] further corroborated the complainant’s testimony as he stated that he was with their children and upon reaching the house, almirahs and lockers broken and ransacked.

5. All the accused persons came to be arrested in another case arising out of FIR No. 44/09 at PS Dwarka North. The appellant came to be arrested on 13.11.2009 vide arrest memo Ex. PW13/D. An application was moved for TIP on the same day, which was refused. Though the reason for refusal was cited to be the visit of the complainant to the police station, however, PW[3] deposed that the complainant visited the police station on 17.11.2009 at about 1.30 pm, after the refusal. Notably, at the instance of the appellant, one jhumki (earring) was recovered vide recovery memo Ex. PW3/B on 17.11.2009, cash Rs. 1,00,305/- were recovered vide recovery memo Ex. PW5/H on 11.11.2009, with the memo noting that the appellant received Rs. 1 lac as his share on selling some of the robbed jewellery. One Nokia mobile phone was recovered vide recovery memo Ex. PW9/F on 11.11.2009.

6. The complainant has clearly identified the appellant in Court and attributed a specific role to him of pretending to talk on the phone, and upon entering the house by deceit, of restraining her at gunpoint while his associates ransacked and robbed her house. No material improvement or contradiction was shown which would render her testimony unreliable. There is further recovery of jewellery, cash and mobile phone from him which was identified by the complainant. Though the pistol stated to be used has not been recovered, the same is not fatal to the prosecution case as a conviction under Section 297 IPC can be sustained without recovery. (ref: Ashfaq v State[1] ). Thus, this Court finds no ground to interfere with the finding of conviction of the appellant.

7. Appellant has sought release on probation of good conduct. Learned counsel for the appellant submits that the appellant has no prior involvements and in fact stands acquitted in two other cases. He is remorseful and is stated to be the sole earner for his family which comprises of a 4 year old son who is intellectually impaired.

8. The report of the Probation Officer, Mr. Sumit Dahiya has been placed on record. The report mentions that the appellant is living with his family comprising of his father, brother, wife and son at a rented accommodation with minimum facilities. His son is 4 years old and suffers from intellectual impairment. It is further noted that the appellant suffered from an accident in December 2024 due to which he has faced injuries and fractures in his right leg, head and face. He has developed deformity in his jaw and right feet. He is working as a driver and earns around Rs. 17,000/per month. His economic condition is described as unstable as he had to take a loan of Rs. 2,00,000/- due to the accident. His attitude and temperament is stated to be normal and he is remorseful of his past and wants to do better in life for himself and his family. In his statement, the appellant stated that he has been implicated in the present case due to his other ongoing cases in which he stands acquitted.

9. The underlying object of releasing offenders on probation is to facilitate their reintegration into society as law-abiding citizens, fostering self-reliance and aiding in their reformation. A testament to the importance of this provision is that the Supreme Court in Lakhvir Singh & Ors. v. State of Punjab & Anr.,[2] has extended the benefits of the Probation of Offenders Act, 1958 even to convicts who had not completed the mandatory minimum sentence of seven years as prescribed in Section 397 IPC, Since IPC was enacted before the Probation of Offenders Act came into being. The relevant extract is reproduced hereunder: -

ensure that they maintain peace and good behaviour for the remaining part of their sentence, failing which they can be called upon to serve that part of the sentence…”

10. The IPC, having been enacted prior to the coming into force of the Probation of Offenders Act, must be read harmoniously with the latter statute. The bar on the application of the Act arises only where a special statute enacted after 1958 prescribes a mandatory minimum sentence coupled with a non obstante clause. In the present case, the conviction is under Section 397 and hence, the Court retains discretion to extend the benefit of probation to the appellant, provided the circumstances justify such relief.

11. As per the latest nominal roll placed on record, the appellant has undergone around 4 years, 1 month and 12 days, including remission as on 07.08.2025. His overall conduct is stated to be satisfactory. He has no other pending cases. Vide order dated 02.02.2018, this Court had suspended the appellant’s sentence during the pendency of the appeal.

12. In view of the facts and circumstances of the case, the judgement of conviction dated 08.09.2017 and order on sentence dated 27.09.2017 are upheld. However, considering the absence of pending criminal involvement, the period of sentence already undergone, the overall circumstances reflected in the probation report, as well as the legal position qua the applicability of Probation of Offenders Act as iterated above, the appellant is granted the benefit of probation on him furnishing a bond in the sum of Rs.10,000/- with one surety for good behaviour for a period of one year before the learned trial court within four weeks from today. In case of non-compliance, the sentence awarded by the trial court shall remain in force. The appellant shall remain under the supervision of the Probation Officer concerned for a period of one year, and shall report before the Probation Officer once every month. It is made clear that in the event of any breach of the conditions of probation or involvement in any other offence during this period, the benefit granted under this order shall stand revoked, and the appellant shall be liable to undergo the remaining portion of the sentence, as awarded by the Trial Court.