Mohd. Saleem vs State and Others

Veena Birbal, J.—This is a petition u/s 482 of Cr.P.C. wherein prayer is made for modification of the order dated 17th August, 2013 passed in Crl. Revision 46/2004/10 by the learned Addl. Sessions Judge, Saket Court, New Delhi and prayer is made for releasing the petitioner on probation u/s 4 of the Probation of Offenders Act. 1958. On the basis of complaint of officials of Forest Department, FIR no. 208/2002 u/s. 447 /34 IPC P.S. Sangam Vihar was registered against the present petitioner and two co-accused persons, namely, Master Rajpal and Satya Prakash Sharma with the allegations of encroachment of land of Forest Department in Khasra no. 1500 in the revenue of Village Tuglakabad and making unauthorised construction over it. During the course of investigation, present petitioner and two other co-accused persons were arrested. After completion of investigation, a charge sheet u/s. 173 Cr.P.C. was filed before the ld.M.M. Notice u/s 251 Cr.P.C. was framed against them for having committed offence u/s. 447 /34 IPC wherein they pleaded not guilty and claimed trial. To prove its case prosecution had examined five witnesses. The incriminating evidence was put to the accused persons and their statements u/s. 313 Cr.P.C. was recorded. However, no evidence was led in defence. After considering the evidence on record, the ld.M.M. convicted them u/s. 447 /34 IPC and sentenced the present petitioner and co-accused Satya Prakash Sharma to undergo SI for a period of one month each and co-accused Master Raj Pal was sentenced to undergo SI for two months.

Aggrieved with the same, a challenge was made before the ld.ASJ, Delhi by filing revision petition by the present petitioner as well as by co-accused Master Rajpal. After going through the evidence on record, the ld.ASJ held that there was evidence of illegal encroachment of forest/government land and in their statements u/s. 313 Cr.P.C., the present petitioner and co-accused persons did not say that the land belong to them and no evidence in defence was led by them. After considering the material on record, the ld.ASJ upheld the conviction. However, the sentence of co-accused Master Rajpal was brought at par with the present petitioner and the sentence awarded to him was reduced to one month SI vide impugned order dated 17.8.2013.

Aggrieved with the aforesaid order dated 17th August, 2013, present petition has been filed by the petitioner only.

Learned counsel for the petitioner has submitted that by way of present petition, the only prayer of petitioner is that his sentence be altered and he be released on probation as per provisions of section 4 of the Probation of Offenders Act, 1958. It is submitted that the ld.ASJ did not consider the request of the petitioner in this regard.

Perusal of the impugned order shows that the ld. ASJ has considered the entire material on record and on the point of sentence has observed as under:-

Albeit: the aspect of sentence has not been argued or questioned in any manner by the counsel, however, the order on sentence is silent on a very vital aspect. It makes a distinction as Master Rajpal is sentenced for two months imprisonment wherein the remaining two accused were sentenced to one month''s simple imprisonment. However, no apparent reason is given. There appears no reason to have two different sentences for the persons who have been convicted for the same offence and no attempt has been made to justify as to why it was so. As such, parity is to be maintained and considering the lapse of time, the age of revisionist Master Rajpal, the sentence awarded to him is reduced to one month SI as is the case with other two accused.

The order passed by the ld.ASJ shows that no argument on the point of sentence was addressed on behalf of petitioner. The ld.ASJ rather reduced the sentence of co-accused Master Rajpal on the basis of parity without the request being made on his behalf. Further, the offence for which petitioner has been convicted is of criminal trespass of Government land i.e., Khasra no. 1500 in the revenue of Village Tuglakabad and it has also come in the evidence that unauthorised construction of four rooms have been made on it without any authority. It has also come in the evidence of Ashok Kumar, PW-2 Security Guard with the Forest Department that construction was being done at the instance of present petitioner i.e., Mohd. Saleem. Ashok Kumar, PW-2 has also deposed in his evidence that Mohd. Saleem had met him at the spot and he was raising unauthorised construction of room. The sentence awarded is also on lower side i.e., only one month SI.

Considering the entire material on record and considering that it is a case of criminal trespass of Forest/Government land and unauthorised construction was also raised over it, present is not a fit case for extending the benefit u/s. 4 of the Probation of Offenders Act. No case for modification of sentence is made out. Petition is rejected.