JUDGMENT

Anu Malhotra, J. CRL.A.608/2004 filed by the appellant Md. Salim and CRL.A.759/04 filed by Javed are being disposed of together vide this common judgment in as much as they both assail the impugned judgment dated 17.07.2004 of the learned ASJ, KKD Courts, Delhi in State case no. 27/1 in relation to FIR No. 388/98, PS Vivek Vihar registered under Section 452/392/397/411/34 of the Indian Penal Code, 1860 in which both the appellants were convicted for the offences punishable under Section 452/34 of the Indian Penal Code, 1860, Section 392/397/34 of the Indian Penal Code, 1860 and Section 411 of the Indian Penal Code, 1860 and were sentenced vide the impugned order on sentence dated 17.07.2004 to undergo RI for a period of 3 years and to pay a fine of Rs.1,000/- each and in default of the payment of the fine to further undergo RI for one month qua the offence punishable under Section 452/34 of the Indian Penal Code, 1860 and were sentenced to undergo RI for a period of 7 years and to pay a fine of Rs.1,000/- each and in default of the payment of the fine to further undergo RI for one month qua the offences punishable under Sections 392/397/34 of the Indian Penal Code, 1860 and both the appellants were sentenced to undergo RI for a period of six months qua the offence punishable under Section 411 of the Indian Penal Code, 1860 and all sentences were directed to run concurrently with the benefit of Section 428 of the Cr.P.C., 1973 being given to the accused persons.

2. Notice of the appeals has been issued to the State. Both the appellants were present at the time of hearing of 07.06.2018 and were assisted by their counsel, i.e., Mr. Kumar Vaibhav, Advocate from the Delhi High Court Legal Aid Services Committee and the State was represented by the learned APP, Ms. Aasha Tiwari assisted by SI Yogesh Kumar, PS Vivek Vihar.

3. Vide order dated 04.06.2018, the nominal roll was called for from the Superintendent Jail, Delhi. The nominal roll has since been received from the Superintendent Central Jail-02, Tihar, New Delhi which indicates that the appellant Md. Salim was released on 22.08.2006 on regular bail granted in the present appeal, i.e., CRL.A.608/04 vide order dated 21.07.2006 and on the date of release had undergone 3 years 5 months and 8 days of incarceration and the unexpired portion of the sentence was 3 years and 18 days. The accused/appellant herein, i.e., Javed in CRL.A.759/04 was reported to have undergone the entire substantive sentence of seven years after computing the period of remission as well of seven months and 23 days on 25.05.2007 and the composite fine of Rs.2,000/- was also indicated to have been deposited on 06.08.2007 but the appellant-Javed was released from jail on 19.12.2007 as he was serving sentence in another case.

4. As per averments made in the FIR dated 10.12.1998 which is based on the statement of Smt. Urmila w/o Sh. Chander Parkash Aggarwal, r/o 28/3/1. Gali No.1, Bihari Colony, Shahdara, Delhi, the complainant Smt. Urmila's husband Sh. Chander Parkash Aggarwal who has a wholesale-retail shop at the Shahdara Mandi dealing in Onions and Potatoes had as usual left for the Mandi at 3.30 AM and she was present at her house with her two sons who were sleeping and at 7.30 AM her daughter Nishu went to school, as a consequence of which the main gate of the house had been left open and she, the complainant was working in the kitchen and within 5-7 minutes, three boys entered into the kitchen, of whom two boys were thin, dark complexioned who had country made pistols (Katta) in their hands and were wearing black jackets and a pant. The complainant described through the FIR that one person of short height of about 5 feet with a round face with marks of pimples on his face and was wearing a black jacket and the second boy with a height of 5 feet and 6 inches and all three boys were between the age of 22-25 years of whom two of them had country made pistols and had a knife and two of these boy