SHAMIULLAH SHEIKH @ SAM @ JEEDAR Vs. STATE

JUDGEMENT

(1.) SHAMILLAH Sheikh @ Sam @ Jeedar (A -1) and Mohd.Sheikh (A -2) impugn a judgment dated 09.11.2010 of learned Additional Sessions Judge/II/North, Delhi, in Sessions Case No.47/2010 arising out of FIR No.01/07 registered at Police Station Special Cell by which they were convicted under Section 4/5 Explosive Substances Act 1908 read with Section 18 and 23 of Unlawful Activities (Prevention) Act 1957 and Section 120B IPC. By an order dated 10.11.2011, they were sentenced to undergo RI for ten years with fine Rs.25,000/ - each under Sections 4/5 Explosive Substances Act; RI for ten years with fine Rs.50,000/ - each under Section 18/23 of Unlawful Activities (Prevention) Act 1957; and RI for five years under Section 120B IPC. The sentences were to operate concurrently.

(2.) THE prosecution case, as revealed in the charge -sheet, was that on 31.12.06 at about 12.10 p.m. SI R.S.Shehrawat (PW -8) received a specific information on phone from a secret informer that two terrorists affiliated to LeT would arrive at Delhi from Jammu and Kashmir by Andaman Express and were in possession of explosives concealed inside cavities of toys. The information was reduced into writing and DD No.5 was recorded at 12.10 a.m. A raiding party was organized and at about 05.30 p.m., the appellants alighted from the train and were apprehended. On checking their bags, one plastic black colour polythene containing a toy pack and another toy pack were recovered beside personal belongings and four pencil cells. Deepak (PW -6) and Rattan Singh, residents of Pahar Ganj, were associated as witnesses. On checking the contents, it was found to contain explosive material weighing 1230 gms and one electronic detonator. Another bag contained explosive material with electronic detonator weighing 1120 gms. Statements of witnesses conversant with the facts were recorded. The exhibits were sent for examination. After completion of investigation, a charge -sheet was submitted in the court against the appellants for committing offences under Sections 121/121A/122/123 and 120 B IPC; 4/5 Explosive Substances Act; and 18/23 Unlawful Activities (Prevention) Act 1957. The prosecution examined 13 witnesses to establish appellants' guilt. In 313 statements, the appellants pleaded false implication and denied their complicity in the crime. They examined DW -1 (Mohd.Iqbal Jal) and DW -2 (Mohd.Ameen Hazam) in defence. The trial resulted in their conviction under Section 120B IPC; 4/5 Explosives Substances Act read with 18/23 Unlawful Activities (Prevention) Act 1957. It is pertinent to note that the appellants were acquitted of the charges under Sections 121/121A/122/123 IPC and 20 Unlawful Activities (Prevention) Act 1957. The State did not file any appeal against their acquittal under those offences.

(3.) SINCE the appellants have given up challenge to the findings recorded on conviction and there is ample evidence on record in the form of statements of witnesses who apprehended them coupled with huge recovery of explosives, their conviction as recorded by the trial court is affirmed. A -1's nominal roll dated 26.03.2014 reveals that he has suffered incarceration for seven years, two months and twenty four days besides remission for two months and twenty eight days. His overall jail conduct is satisfactory. He was shifted from Central Jail No.1, Tihar, A -2's nominal roll dated New Delhi for appearing in examination. 26.03.2014 reveals that he also remained in custody for seven years, two months and twenty four days besides remission for six months and twenty six days. His jail conduct was satisfactory. He too was shifted from Central Jail No.1, Tihar, New Delhi for appearing in examination. By an order dated 26.02.2014, State was directed to file status report regarding the antecedents of the appellants. The additional status report on record reveals that both the appellants are not involved in any other criminal case either in Delhi or Jammu and Kashmir. Sentence order dated 10.11.2010 reveals that A -1 was aged about 23 years and A -2 was aged about 38 years and both belonged to a family living below poverty line. A -1 and A -2 are real brothers and their father was killed in some terrorist activities as he did not assist the terrorists in their nefarious designs. Their mother is 65 years of age and is suffering from old age ailments. Considering all these mitigating circumstances and the fact that the appellants were acquitted of the grave charges under Sections 121/121A/122/123 IPC and 20 Unlawful Activities (Prevention) Act 1957, their substantive sentence of RI for ten years each is reduced to RI for eight years each. The appellants have volunteered to deposit Rs.50,000/ - each as fine. The Investigating Officer has revealed that the appellants belong to poor strata of society and are not economically sound to deposit the fine Rs.1,50,000/ - each imposed by the trial court. Considering these circumstances, the fine amount is reduced to Rs.50,000/ - in all for each of the appellants and default sentence for non -payment of fine would be SI for three months each.