Ayyub vs State of Haryana

Nirmaljit Kaur, J.—This is an appeal u/s 374 Code of Criminal Procedure on behalf of the appellant against judgment and orders dated 27.11.2009 passed by Additional Sessions Judge, Nuh (Mewat) in Sessions case No. 51 of 2009 convicting the appellant and sentencing him under Sections 399 and 402 of the Indian Penal Code to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/ - under Sections 399 and 402 IPC and rigorous imprisonment of one year and fine Rs. 200 u/s 25 of the Arms Act. In case of default of payment of fine, the accused shall further undergo rigorous imprisonment for two months and fifteen days.

The facts, as recorded by Additional Sessions Judge, Fast Track Court, Nuh, are that on 02.08.2006, ASI Dharambir along with other police officials was present near Dihana turn Malab-Alwar road, Nuh. At that time, a secret information was received that accused Ayub, Rafiq, Jakariya, Sajid and Hamid armed with weapons are making plan to commit robbery of the vehicles which will pass from that area. In the meantime, ASI Sukhbir in a private vehicle along with other police officials came there. Instructions were given to ASI Sukhbir Singh to go towards the Village Aakeda near bridge and he is also coming from the side of bridge. All the police officials took the position as per instructions. He heard the conversation of the accused who were making to plan to loot the vehicle at the point of pistol and gun. The police party gave alarm to the accused to surrender on which accused tried to fled away but police party apprehended the accused Ayub with pistol, accused Jakariya with knife, accused Sajid with gun, accused Rafiq with Saria (iron rod) and torch (battery) and accused Hamid with iron rod were apprehended. Sketch of the gun, pistol and knife were prepared by Investigating Officer. Recovery memo of gun, cartridge, country made pistol, cartridge, knife and iron rods were prepared. Ruqa was sent to Police Station. Case was registered against all the accused. Investigation was started. After completion of necessary investigation, challan was presented before the court of Illaqa Magistrate.

The prosecution examined various witnesses, namely, Dharambir Ahlmad as PW-1, Giriraj Singh as PW-2, Iqbal Patwari as PW-3 and other official witnesses. The defence evidence was also recorded in the form of DW-1 Ramjano, DW-2 Shamsher and DW-3 Mehmood Khan. The accused Ayyub suffered disclosure statement which is exhibit PW8/E and in pursuance to the said disclosure statement, the police party recovered two Maruti vans without number from his house in his possession, as well as 315 pistol was recovered. Taking into account the entire evidence, the Additional Sessions Judge, Fast Track Court, Nuh convicted the present petitioner under Sections 399/402/411 of PC and 25 of the Arms Act.

At the outset, learned Counsel for the appellant has not argued on merits but prayed that the sentence be reduced to that of already undergone.

Taking into account the entire evidence, as well as, the judgment, the learned Counsel for the appellant has rightly not argued the same on merits. As such, the Order dated 27.11.2009 passed by Additional Sessions Judge, Nuh (Mewat), convicting the appellant is upheld. There is nothing pointed out which may enable this Court to allow the appeal and set aside the well reasoned judgment passed by Additional Sessions Judge, Nuh (Mewat). Accordingly, the conviction is upheld and the appeal against the judgment and order dated 27.11.2009 passed by Additional Sessions Judge, Nuh (Mewat) is dismissed.

With respect to the question of sentence, it may be seen that the appellant is undergoing trial since the year 2006. The appellant has also undergone more than the substantial period of sentence i.e. almost four years and 2/� months out of a total sentence of five years.

Thus, the sentence awarded to the appellant is modified as to that of having already undergone. The appeal is, accordingly, dismissed except for the modification in the sentence to that of ''already undergone''. The appellant being in judicial custody be released forthwith.