ISMAIL SHEIKH Vs. STATE OF NCT DELHI

JUDGEMENT

(1.) Vide the impugned the judgment dated 22.01.2005 of the then learned ASJ, Delhi in relation to FIR No.854/2002, PS Saraswati Vihar in State Case No.37/2004 in which there were seven persons arrayed as accused i.e. Alamgir, Ismail Sheikh, Abul Aakan, Saidul, Md. Dulal, Aslam, Abul @ Kabir, vide the said impugned judgment, the accused persons Ismail Sheikh, the appellant of Crl.A.386/2005, Md. Dulal, appellant of Crl. A.1006/2006 and Saidul, appellant of Crl.A.789/2005 presently under consideration before this Court were held guilty for the commission of offences punishable under Sections 395/397 Indian Penal Code, 1860 and all the four accused persons i.e. Alamgir, Abul Aakan, Aslam, Abul @ Kabir were granted benefit of doubt and acquitted. Submissions in relation to Ismail Sheikh were made by learned counsel on 13.06.2018 and have been reiterated today also by the learned counsel on his behalf submitting to the effect that the charges qua the commission of offences punishable under Sections 395/397 Indian Penal Code, 1860 against Ismail Sheikh, s/o Afsar Ali have not been established even remotely and that the said appellant is entitled to be acquitted.

(2.) In terms of proceedings dated 04.06.2018, the nominal roll of the appellant was called for which indicates that he has already completed his sentence imposed vide impugned judgment dated 201.2005 whereby the said appellant along with two other appellants i.e. Md. Dulal and Saidul was sentenced to Rigorous Imprisonment for seven years and to pay a fine of Rs.500/- each and in default of the payment of the said fine, to undergo Rigorous Imprisonment for a further period of three months with the benefit of Section 428 Cr.PC, 1973 having been given to the convicts. The nominal roll as observed hereinabove dated 11.06.2018 received from the Superintendent Jail, Central Jail No.8/9, Tihar, Delhi indicates that the said appellant Ismail Sheikh, s/o Afsar Ali has already completed his sentence on 14.12002 but continued to be detained as an under trial in FIR No.294/2002, PS Link Road and after completion of sentence in all cases, was transferred to District Jail, Ghaziabad, U.P. on 27.03.2010. On behalf of the appellant of Crl.A.1006/2006 i.e. Md. Dulal it has been submitted by the learned counsel present that the convictions of the said appellant cannot be sustained in as much the evidence on the record is wholly infirm and that there is only a solitary evidence of PW-8 Praful Khosla in relation to identification of the said accused Md. Dulal and that the stated diamond ring taken out by the appellant Md. Dulal from Praful Khosla, PW-8 has not even been recovered. It has been submitted on behalf of the appellant that in any event, the charges against the said appellant qua the conviction under Section 397 Indian Penal Code, 1860 cannot stand in any manner inasmuch as there is no specification of the deadly weapon of offence allegedly utilised by the said appellant during the course of the dacoity. The nominal roll received from the Superintendent Jail, Central Jail No.8/9, Tihar, Delhi dated 06.06.2018 indicates that this appellant too has completed his sentence on the date 13.08.2009 of Rigorous Imprisonment of seven years with a fine imposed of Rs.500/- and in default of payment of the said fine, to three months of Rigorous Imprisonment with having earned a remission of one year, three months and seven days and continued to be detained as an under trial in view of his involvement in FIR 294/2002, PS Link Road, under Section 459 Indian Penal Code, 1860 and after completion of the sentences in all cases i.e. FIR No.319, PS Aman Vihar, FIR No.872/2002, PS Saraswati Vihar, FIR No.480/2002, PS Preet Vihar, FIR No.603, PS Preet Vihar, was transferred to teh District Jail, Ghaziabad, U.P. on 27.03.2010.

(3.) As regards the appellant Saidul @ Afzal, in view of the nominal roll that has been received for the date 06.06.2018 which indicated that the appellant was presently undergoing life sentence in relation to FIR No.849/2002, PS Saraswati Vihar, production warrants were issued for the production of the said appellant for the date 106.2018 and he was so produced and is present today as well. The appellant had submitted on 106.2018 and once again he reiterated that he does not seek to contest the appeal and had submitted on 106.2018 that he had deposited the fine of Rs.500/-, which was not so reflected in the nominal roll. The report has thus been called for from the Superintendent Jail, Delhi. As indicated vide the nominal roll that was received for the date 06.06.2018, the appellant Saidul @ Afzal has already undergone the period of sentence of seven years of Rigorous Imprisonment having earned one year, two months and sixteen days of remissions as on 22.09.2008. It has been reported vide the said nominal roll that the substantive sentence of this appellant has been completed on 22.09.2008 but that the fine sentence i.e. a fine of Rs.500/- and in the event of non-payment of fine, of three months of Rigorous Imprisonment was still pending. In view of the submissions that was made by the appellant that he had deposited the fine, the report was called for from the Superintendent Jail, Delhi, it is indicated that the appellant had made a request in the early morning of 14.06.2018 i.e. today with the report from the Superintendent Jail being of the date 14.06.2018 for the deposit of fine of Rs.500/- imposed in the instant case, the said amount had been deducted from his Prisoner's property account and the same would be deposited in the Government fund today itself. Thus the instant appellant has also undergone the entire sentence imposed vide the impugned order on sentence dated 22.01.2005 of seven years of Rigorous Imprisonment and a fine of Rs.500/-.