Delhi High Court
Tony @ Topesh vs State (Govt. Of Nct) Of Delhi on 28 April, 2014
Author: S. P. Garg
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : 28th APRIL, 2014
+ CRL.A. 1083/2011
TONY @ TOPESH ..... Appellant
Through : Ms.Srilina Roy, Advocate for
Ms.Nandita Rao, Advocate.
versus
STATE (GOVT. OF NCT) OF DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.Garg, J. (Open Court)
1. The appellant - Tony @ Topesh impugns a judgment dated
12.04.2010 of learned Additional Sessions Judge in Sessions Case No.
367/07 arising out of FIR No. 257/07 PS Adarsh Nagar by which he was
convicted under Section 394/34 IPC read with Section 397 IPC. By an
order dated 13.04.2010, he was sentenced to undergo RI for seven years
with fine ` 5,000/-.
2. Allegations reflected in the charge-sheet against the appellant
were that on 11.05.2007 at about 10.20 P.M. at Azadpur Flyover, near
TPT Center Azadpur, Delhi, he and his associates robbed complainant -
Sanjay Arora, of a purse containing ` 2,000/- and a mobile phone make
Nokia. The assailants were armed with knives and inflicted injuries to him
while committing robbery. Daily Diary (DD) No. 19 (Ex.PW-6/A) was
recorded at Police Post NS Mandi at 11.30 P.M. regarding the incident.
The investigation was assigned to ASI Attar Singh who with Const.
Satyawan reached at Babu Jagjiwan Ram Memorial Hospital and
collected Sanjay Arora's MLC. The First Information Report was lodged
after recording complainant's statement (Ex.PW-6/A). In the statement,
complainant gave detailed account as to how and under what
circumstances, he was robbed of his valuable articles by 3 - 4 individuals
who inflicted injuries to him by a knife. He claimed to identify the
assailants. During the course of investigation, statements of the witnesses
conversant with the facts were recorded. The appellant was identified by
the victim in TIP proceedings. After completion of investigation, a
charge-sheet was filed. The appellant was duly charged and brought to
trial. The prosecution examined twelve witnesses. In their 313 statement,
the appellant denied his complicity in the crime and pleaded false
implication. The trial resulted in his conviction as aforesaid.
3. During the course of hearing, appellant's counsel on
instructions stated that the appellant has opted not to challenge the
findings of the Trial Court on conviction. She, however, prayed to modify
the sentence order and to reduce the default sentence for non-payment of
fine.
4. Since the appellant has given up challenge to the findings of
the Trial Court on conviction under Section 394/34 IPC read with Section
397 IPC in the presence of overwhelming evidence of the complainant,
coupled with medical evidence, conviction stands affirmed. The appellant
was sentenced to undergo RI for seven years with fine ` 5,000/-. Nominal
roll dated 23.04.2014 reveals that he has already served the substantive
sentence awarded to him as on 19.03.2014. He is now serving default
sentence of three months for non-payment of fine ` 5,000/-. It further
reveals that his overall jail conduct is satisfactory. He is not a previous
convict. Due to his poor economic condition, he is unable to pay fine `
5,000/- and has already served the default sentence for more than one
month as on 22.04.2014. Considering the facts and circumstances, the
period already undergone by him in custody is taken as the default
sentence for non-payment of fine ` 5,000/-. Sentence order is accordingly
modified.
5. Appeal stands disposed of in the above terms. Trial Court
record be sent back forthwith with the copy of the order. A copy of the
order be sent to the Superintendent Jail for information. The appellant
shall be released forthwith if not required to be detained in any other case.
(S.P.GARG)
JUDGE
APRIL 28, 2014 / tr
