* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on : 23.07.2025 Pronounced on : 28.07.2024 + CRL.A. 521/2003 SUBHAN .....Appellant Through: Mr. Gaurav Sharma, Ms Sakshi Jha and Ms. Aakanksha Sharma, Advs.

versus STATE (GNCT) OF DELHI .....Respondent Through: Ms. Shubhi Gupta, APP for State with SI Komal, P.S. Subhash Place.

+ CRL.A. 551/2003 MASOOM .....Appellant Through: Mr. Gaurav Sharma, Ms Sakshi Jha and Ms. Aakanksha Sharma, Advs.

versus THE STATE OF NCT OF DELHI .....Respondent Through: Ms. Shubhi Gupta, APP for State with SI Komal, P.S. Subhash Place.

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT

1. The appellants have instituted the present appeals seeking setting aside of the impugned judgment of conviction dated 24.02.2003 and order on sentence dated 25.02.2003 passed in Sessions Case No.110/1999 arising out of the FIR No.238/1999 under Sections 395/397/398/411/34 IPC Signature Not Verified CRL.A. 521/2003 & CRL.A. 551/2003 PaSgigene d1 B oy:fG 8AU TAM registered at PS Saraswati Vihar, Delhi.

2. As the present appeals arise out of the same impugned judgement and common submissions have been addressed on behalf of both the appellants, both the appeals are decided by a common judgment. Notably, along with the present appellants, another convict Jahangir @ Afzal @ Rakesh also impugned the judgment of conviction vide Crl. Appeal No. 276/2003, which was dismissed for non-prosecution by the Coordinate Bench of this Court vide order dated 06.09.2009.

At this stage, it is pertinent to note that the sentence of the appellants Subhan and Masoom was suspended vide orders dated 19.02.2004 and 10.05.2005 respectively, whereafter they failed to appear before this Court and despite notices issued to the appellants as well as their sureties, the same remained unserved with the remarks ‘address does not exist’. The efforts to trace the appellants remained unsuccessful. In this eventuality, Mr. Gaurav Sharma, learned counsel for the appellants who is on the panel of Delhi High Court Legal Services Committee was appointed to represent the appellants vide order dated 31.01.2024.

3. The facts in brief, as noted by the learned Trial Court, are that on the intervening night of 05/06.04.1999 at about 3 a.m. in the night, the complainant Rameshwar Dayal was sleeping in his house along with his family members at House No.103, Sharda Niketan, Delhi, when he was woken up by someone, and found himself surrounded by five young boys and they were carrying pistols, Katta, knives, Khurki, screw driver etc. and they asked him to tell as to where the valuables were lying. He was taken to the back side room where his father Ram Narain and brother Rakesh were sleeping and they searched his almirah and took out Rs.500/- lying there.

Signature Not Verified CRL.A. 521/2003 & CRL.A. 551/2003 PaSgigene d2 B oy:fG 8AU TAM Thereafter, they went to the room where his mother and his sister Madhu were present and from that room they removed two golden chains, one golden ring, one pair of golden tops, one nose pin. Thereafter, they went to the room of Rajesh and they stabbed Rajesh with a knife. Rameshwar Dayal was also attacked with the butt of the katta and thereafter all the five accused persons ran away.

4. The appellants pleaded not guilty to the charge and claimed trial.

5. The prosecution has examined a total of 17 witnesses. One of the co-

accused Jahangir has examined one witness in his defence.

6. Learned counsel for the appellants while assailing the impugned judgment contends that the testimonies of witnesses are not only inconsistent but also does not corroborate each other on material facts. In this regard, it is contended that while some witnesses have stated that the appellant/Subhan was allegedly holding a knife, the others have mentioned it to be a screw driver.

7. It is next contended on behalf of the appellants that the identity of the appellants was not conclusively established before the Trial Court and in this regard, reference is made to the te