* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 10th FEBRUARY, 2014
DECIDED ON : 13th FEBRUARY, 2014
+ CRL.A. 1510/2011
RAJESH ..... Appellant
Through : Mr.Ravi Chaturvedi, Advocate.
VERSUS
THE STATE (NCT OF DELHI) ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Rajesh is aggrieved by a judgment dated 28.09.2011 of learned Addl. Sessions Judge in Sessions Case No. 05/11 arising out of FIR No. 281/07 PS Timar Pur by which he was convicted under Section 392 IPC read with Section 397 IPC. By an order dated 28.09.2011, he was awarded RI for seven years with fine ` 5,000/- under Section 397 IPC and RI for four years with fine ` 5,000/- under Section 392 IPC. The substantive sentences were to operate concurrently.
2. Allegations against the appellant were that on the night intervening 19/20.05.2007 at outer ring road, Majnu Ka Tilla, he committed robbery and deprived complainant - Ms. Bhanu of her two CRL.A.No. 1510/2011 Page 1 of 5 mobile phones, laptop, purse, cash ` 5,000/-, ATM and credit cards of different banks, Titan wrist watch and gold chain with pendent when she was travelling alone in the TSR No. DL-1RE-3245 being driven by the appellant. Daily Diary (DD) No. 5A (Ex.PW-4/B) was recorded at 02.20 A.M. regarding the incident. The Investigating Officer lodged First Information Report after recording complainant's statement in the morning on 20.05.2007. During investigation, it revealed that the TSR No. DL-1RE-3245 was in possession of the appellant at the relevant time. Statements of the witnesses conversant with the facts were recorded. The appellant declined to participate in the Test Identification Proceedings. Some robbed articles and knife was recovered from his possession. After completion of investigation, a charge-sheet was filed against the appellant; he was duly charged and brought to trial. In 313 statement, the accused pleaded false implication and alleged that the complainant and her boyfriend Prashant were under the influence of liquor and had declined to pay the fare. No evidence in defence was led. The trial resulted in his conviction as aforesaid.
3. I have heard the learned counsel for the parties and have examined the record. The appellant has admitted that on the night intervening 19/20.05.2007, the complainant had travelled in the TSR CRL.A.No. 1510/2011 Page 2 of 5 being driven by him. He, however, took the defence that the complainant and Prashant were under the influence of liquor and there was exchange of hot words on payment of money. The accused pleaded that he had given a slap to the complainant and her boyfriend during altercation. This defence of the appellant was considered by the Trial Court and was out-rightly rejected. The complainant was alone in the TSR at the time of occurrence. She was not aware of the TSR number in which the robbery took place. Only when the police contacted Prashant who had made the complainant sit in the TSR, they came to know about the registration number of the TSR which was found correct. Ultimately, it was found that the said TSR was being driven by the appellant. PW-2 (Rajender) financer had financed it in the name of Irfan Alam. The complainant had no reasons to travel in the TSR after the slap incident and to falsely implicate the accused with whom she had no prior animosity. In her Court statement, she categorically identified him as the assailant who robbed her of various articles showing her knife taking advantage of odd hours when she was alone in the TSR. Despite cross-examination, nothing material could be extracted to doubt her version. She also sustained minor injuries. The accused did not examine any witness in defence to substantiate the allegations in 313 statement. No such defence was put to the complainant CRL.A.No. 1510/2011 Page 3 of 5 in her cross-examination. Recovery of the crime weapon and the robbed articles further connect him with the crime. Adverse inference is to be drawn against him for declining to participate in the Test Identification Proceedings. The accused was apprehended on 27.05.2007 at the instance of TSR owner Bablu Singh. During his police remand, he recovered one mobile phone make Nokia belonging to the complainant which was identified by her in her testimony. PW-1 (HC Ramesh Kumar) confirmed that in the night of 19/20.05.2007, the complainant had approached him and disclosed about the incident. The message was flashed to the control room and Daily Diary (DD) No. 5A (Ex.PW-4/B) was recorded. It reveals that there was no delay in lodging the report with the police. All the relevant facts have been taken into consideration in the impugned judgment which needs no interference. No ulterior motive was assigned to the complainant for falsely roping him in the crime. It is significant to note that during the pendency of the appeal, the appellant moved Crl.M.A.No. 18567/2013 whereby he gave up challenge to the findings of the Trial Court on conviction and prayed to release him for the period already undergone by him. This Court by an order dated 10.12.2013 dismissed the said application as the minimum sentence prescribed under Section 397 IPC could not be altered or modified. Nominal roll dated CRL.A.No. 1510/2011 Page 4 of 5 13.02.2012 reveals that the appellant suffered conviction in other case FIR No. 515/08 under Sections 365/394/354/376/411/34 IPC and was given RI for seven years with fine ` 5,000/- on 23.07.2011. The impugned judgment is based upon fair appraisal of the evidence and needs no interference.
4. The minimum term of imprisonment prescribed under Section 397 IPC is only seven years. Apparently, it does not regulate sentence of fine. In the instant case, once the Trial Court had imposed fine under Section 392 IPC, imposition of additional fine of ` 5,000/- under Section 397 IPC was not permissible and sustainable. Accordingly, fine imposed under Section 397 IPC is set aside. Other terms and conditions of the sentence order are left undisturbed.
5. In the light of above discussion, appeal filed by the appellant stands disposed of in the above terms. Pending application (if any) also stands disposed of. Trial Court record (if any) be sent back immediately. A copy of the judgment be sent to the Superintendent Jail for information.
(S.P.GARG) JUDGE FEBRUARY 13, 2014/tr CRL.A.No. 1510/2011 Page 5 of 5