ZAKARIYA AND OTHERS Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal has been filed by the appellants-Zakariya, Rafiq and Sajid challenging the judgment and order dated 27.11.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Nuh. The appellants have been convicted for the commission of the offences under Sections 399, 402, 411 Indian Penal Code (for short 'IPC'). Their co-convict Ayyub (non-appellant in this appeal) was also convicted for the offence punishable under Sections 399 and 402 IPC and Section 25 of the Arms Act. The appellants have been sentenced to undergo rigorous imprisonment for five years each besides to pay a fine of Rs. 500/- each and in default thereof to undergo imprisonment for a period of one month each for the offence under Section 399 IPC. They have been sentenced to undergo rigorous imprisonment for five years each besides to pay a fine of Rs. 500/- each for the offence under Section 402 IPC and to undergo rigorous imprisonment for one year for the offence under Section 411 IPC.

(2.) Criminal Appeal No. 1163-SB of 2010 had been filed by Ayyub son of Abdul, a co-convict challenging his conviction and sentence vide judgment and order dated 27.11.2009. This appeal stands decided vide judgment dated 04.10.2010. The sentence awarded to Ayyub was modified by this Court to that which he had already undergone i.e. 4 years, 21/2 months. The conviction vide judgment dated 27.11.2009 has, however, been upheld. The prosecution case is that ASI Dharambir along with other police officials was present near Dihana turn Mala-Alwar road, Nuh on 02.08.2006. Secret information was received that the appellants-Rafiq, Zakariya, Sajid, Hamid and Ayyub (appellant in Criminal Appeal No. 1163-SB of 2010) armed with weapons were planning to commit robbery upon the vehicles which may pass from that area. ASI Sukhbir Singh along with other police officials came there in a private vehicle. ASI Sukhbir Singh was instructed to go towards village Aakeda near the bridge. The police officials took their positions as per the instructions. ASI Sukhbir Singh heard the conversation of the accused as they were planning to loot vehicles at gun point. The police party asked the appellants and co-convict to surrender on which they tried to flee. The appellant-Ayyub was apprehended armed with a pistol, Zakariya with a knife, Sajid with a gun, Rafiq with an iron rod (saria) and torch and Hamid with iron rod. The sketch of the gun, pistol and knife were prepared by the investigating officer. The recovery memo of the gun, cartridge, country made pistol, knife and iron rods was also prepared and the ruqa was sent to the police station. The case was registered against all the accused and on completion of the necessary investigation, report under Section 173 Cr.P.C. was presented before the Illaqa Magistrate. The case was committed to the Court of Sessions vide order dated 19.01.2007 and the charge sheet was presented against the accused on 08.02.2007.

(3.) A knife recovered from Zakariya was taken in possession vide recovery memo Ex.PW6/G. The iron rod recovered from Hamid @ Hanif @ Pittal was taken in possession vide recovery memo Ex. PW6/F. The iron rod and torch recovered from Rafiq were taken in possession vide recovery memo Ex. PW6/E. The recovery memos were attested by HC Ranjit Singh and EHC Jagat Singh. The appellants suffered disclosure statements disclosing their involvement along with other appellants in several occurrence. Zakariya, who suffered disclosure statement Ex. PW8/A got recovered a motorcycle from his house in village Aakeda. Sajid, who suffered disclosure statement Ex. PW8/B also got recovered a motorcycle from the mosque near the bus stand, Nuh. Hamid on suffering disclosure statement Ex. PW8/C got recovered a motorcycle. Rafiq while suffering disclosure statement Ex. PW8/D also got recovered a motorcycle. The co-convict/Ayyub suffered disclosure statement EX. PW8/E and got recovered two maruti vans without number from his house as well as .315 bore gun. The prosecution examined 11 witnesses to substantiate its case. The appellants as well as Ayyub denied all the allegations and evidence against them and pleaded false implication in the statements under Section 313 Cr.P.C. In defence, 3 witnesses were examined.