Delhi High Court
Suresh Yadav (In Jc) vs State on 9 March, 2006
Author: S N Dhingra
Bench: S N Dhingra
JUDGMENT
Shiv Narayan Dhingra, J.
1. Nobody is present on behalf of the petitioner. Even on the last two hearings, no one appeared on behalf of the petitioner. On 21.7.2004, bailable warrants in the sum of Rs.10,000/- were issued to ensure presence of the petitioner for 29th October, 2004 On 29th October, 2004 no one appeared for the petitioner. The petition can be disposed of on perusal of the record of the case.
2. The petitioner was involved in case under Sections 328/379 r/w Section 34 IPC along with other accused persons arising out of FIR No.647/1998 PS Trilok Puri, Delhi.
3. On 14th August, 1998 Dharmender Kumar Rastogi came to Delhi from Sher Garh and alighted from the bus at ISBT, Kashmiri Gate Delhi. When he came outside the bus stand with his suit case and started looking for a three wheeler scooter, accused Jagannath along with the present petitioner and one more accused Ishrail @ Rahimuddin were standing near the three wheeler scooter. The petitioner and Ishrail approached Dharmender Kumar Rastogi and asked him as to where he wanted to go. He told that he was to go to Dhaula Kuan. On this both of them disclosed that they were also going to Dhaula Kuan and they were passengers like him and they all can reach Dhaula Kuan by jointly paying Rs.30/-.
4. Dharmender Kumar Rastogi sat in the centre of the scooter's seat and Suresh Yadav sat on right side while Ishrail took seat on his left side. When the scooter reached near Red Fort, accused Jagannath who was the driving the scooter got down from scooter saying that he was to have something from the tea shop. He went towards tea shop and then came back with a biscuit packet. After the scooter started moving, the biscuit packet was opened and all the three accused started eating biscuits. Meanwhile, Dharmender Kumar Rastogi was also given two biscuits which he ate and after eating the same he felt intoxicated and fell down unconscious on the scooter's seat. Fortunately, one Constable Devender Singh who was on duty on National Highway 24 near flyover Khichri Pur, Delhi within the area of PS Trilok Puri, saw Dharmender Kumar falling down on the scooter's seat and saw two other persons who were sitting with him started getting out of the scooter. It aroused suspicion in the mind of the Constable Devender Singh and he stopped accused persons who were getting down holding one suit case each and had started moving. Constable Devender Singh asked Suresh Yadav and Ishrail to sit on the same scooter and took them to police picket situated nearby where other police officials were also there. Both the accused were handed over to HC Mamoor and CT Devender Singh went to SDN Hospital in the same TSR along with unconscious Devender Singh and got him medically examined. ASI Om Prakash reached the hospital and recorded the statement of CT Devender Singh. The doctor gave one phial and one sample seal to CT Devender Singh for CFSL examination. The TSR driver Jagannath who was one of the prime accused stole the moment and slipped away from the spot along with his three wheeler scooter. He was subsequently arrested on 17th August, 1998 from his house situated in Gali No.1, Sade Teen Pusta, Usman Pur, Delhi. Charges were framed and trial started against all the three accused persons. However, accused Suresh Yadav during the trial absconded and he did not take the trial and the case was proceeded against rest of the two accused who were convicted by the Trial Court under Section 379 r/w S 34 IPC for stealing the articles of Dharmender Kumar, complainant.
5. The stolen articles were recovered from the accused persons and then were handed over to Dharmender Kumar. The present accused was later on arrested as PO and he pleaded guilty of the charges. He was convicted under sections 328/379 read with Section 34 IPC and was sentenced to imprisonment of two years six months and 9 days i.e. the same sentence which was suffered by other accused Jagannath and fine of Rs.1000/-.
6. This revision petition has been preferred by the petitioner on question of quantum of sentence on the ground that at the time of commission of offence the age of co-accused Ishrail was same and Ishrail was given benefit of probation. Co-accused Jagannath has remained in JC for the aforesaid period and he was released on the basis of sentence already undergone and there was no rational for awarding same sentence.
7. While the other co-accused persons were convicted under Sections 379/411 read with Section 34 IPC, the present accused has been convicted under Sections 328/379 read with Section 34 IPC. The offence under Section 328 is punishable with imprisonment which may extend to the period of 10 years with fine. The offence under Section 379 IPC is punishable with an imprisonment which may extend to the period of three years with or without fine. The punishment for section 328 IPC is much more severe than under Section 379 IPC.
8. Keeping in view the fact that the petitioner was involved in a case of theft by drugging and had served drugs to the complainant, the quantum of punishment awarded by the lower Court is on the lower side and not on higher side. The case of the petitioner is not comparable with other two co-accused persons who are convicted only under Section 379 read with Section 34 IPC. I find no merits in the revision petition and the same stands dismissed.
9. The accused shall surrender immediately to the Jail Authorities to undergo remaining sentence.
10. In case he fails to surrender, the concerned MM/CMM shall ensure his arrest and send him to Jail to undergo for remaining period of sentence.
11. Copy of the order be sent to the concerned MM/ CMM for taking necessary action in the matter.
