Rajpal @ Hathi vs State (Nct) Of Delhi
2011 Latest Caselaw 826 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 Judgment delivered on: February 10, 2011

+      CRIMINAL APPEAL NO.256/2010 & Crl.M.A. No.525/2011

       RAJPAL @ HATHI                                 ....APPELLANT
               Through:           Appellant in custody with Mr. S.B.
                                  Dandapani, Advocate DHCLSC

                           Versus

       STATE (NCT) OF DELHI                             .....RESPONDENT

Through: Ms. Fizani Husain, APP.

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the impugned judgment dated

20.08.2008 in Sessions Case No.69/2006 FIR No.96/2006 P.S.

Kashmere Gate and the consequent order on sentence dated

22.08.2008, whereby the appellant was convicted for the offence

punishable under Section 392 IPC and 397 IPC and was sentenced

under Section 397 IPC to undergo RI for the period of seven years and

also to pay a fine of `1,000/-, in default to undergo RI for further period

of one month and for the offence under Section 392/34 IPC, to undergo

RI for two years and to pay a fine of `1,000/-, in default to undergo RI

for the period of one month. It was, however, ordered that substantive

sentence awarded to the appellant shall run concurrently.

2. Briefly stated, case of the prosecution is that on 02.03.2006 at

about 2:45 am, complainant Sandeep Deswal was going on his

motorcycle towards Hudson Lane. His friends Rajiv and Sunil were

sitting on the pillion of the motorcycle. When they reached near

Hanuman Setu Police Picket, the motorcycle got punctured. They

dragged the motorcycle towards the police booth and stopped to find

out if there was any puncture shop nearby. In the meanwhile, two

boys came on a motorcycle and they told them that there was a

puncture shop nearby and on their advice, complainant and his friends

took their motorcycle towards the bridge, where two other associates

of those two boys were present and they robbed Rajiv of his gold ring,

a mobile phone and `300/-. They also robbed Sunil of his mobile phone

and `350/- and they robbed the complainant of his mobile phone,

`500/- and his purse containing an ATM card and some other

documents and a pair of Reebok shoes. The FIR was registered on the

complaint of Sandeep Deswal.

3. During investigation, the appellant and his co-accused persons

Vijay Pandit, Pardeep and Amit were identified as robbers. On

conclusion of investigation, the appellant and his co-accused persons

were charged for the offences punishable under Section 392/395/34

IPC and co-accused Pardeep was also charged under Section 397 IPC.

The appellant and his co-accused persons pleaded not guilty and

claimed trial.

4. On completion of trial, the learned Additional Sessions Judge

found the appellant guilty for the offence under Section 392 read with

Section 34 IPC. Thus, the appellant was convicted for the said offence

and sentenced accordingly.

5. Learned Shri S.B. Dandapani, legal aid counsel appearing on

behalf of the appellant, on instructions from the appellant, submits at

the outset that the appellant admits his guilt and does not press his

appeal on merits. Learned counsel, however, argued on the point of

sentence and requests for a lenient view. It is submitted on behalf of

the appellant that the appellant is in custody since 06.03.2006, which

imply that he has been under incarceration for a period of almost five

years excluding the remission which sentence, according to learned

counsel for the appellant, is consumerate with the gravity of the

offence committed by the appellant. Thus, he has urged this court to

reduce the sentence of the appellant to the period of custody already

undergone by the appellant in this case. He has further contended that

vide order on sentence dated 25.06.2008 in FIR No.92/2001 P.S.

Kashmere Gate under Section 392/411/34 IPC, the appellant was

convicted and sentenced to undergo RI for the period of three years.

Learned Additional Sessions Judge, however, ignored this fact and did

not allow the benefit of grant of running of sentence in the aforesaid

matter and the case, which is subject matter of this appeal. Learned

counsel has thus requested that the order on sentence be modified to

the effect that the sentence awarded in case FIR No.92/2001 and the

sentence awarded in this case shall run concurrently.

6. Learned Ms. Fizani Husain, APP for the State has contended that

the appellant is a hardcore criminal having a long criminal record,

therefore, he does not deserve any leniency. She contended that if he

is released on bail, in all probabilities he is likely to indulge in similar

activities and prove to be a menace to the society. Thus, she has

pressed for dismissal of appeal.

7. I have considered the rival contentions. Admittedly, the

appellant is a previous convict in a robbery case. Therefore, I find no

reason for reducing the sentence of 07 years RI awarded to the

appellant to the sentence for the period already undergone by him in

custody. Plea of learned counsel for the appellant is thus rejected.

However, taking into consideration that the appellant has also been

convicted under Section 392 IPC in case FIR No.92/2001 P.S. Kashmere

Gate vide order dated 25.06.2008, it is ordered that the sentence

awarded to the appellant in this case shall run concurrently with the

sentence awarded to him in case FIR no.92/2001 P.S. Kashmere Gate,

Delhi.

8. The appeal as well as application under Section 482 Cr.P.C. being

Crl.M.A. No.525/2011 are disposed of accordingly.

(AJIT BHARIHOKE) JUDGE FEBRUARY 10, 2011 pst