Md. Rinku Ali vs The State (Govt. Of Nct) Delhi
2014 Latest Caselaw 710 Del

$-9
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   DECIDED ON : 5th FEBRUARY, 2014

+                         CRL.A. 149/2014

       MD. RINKU ALI                                        ..... Appellant

                          Through :    Ms.Suman Chauhan, Advocate.
                          versus

       THE STATE (GOVT. OF NCT), DELHI                      ..... Respondent

                          Through :    Mr.Lovkesh Sawhney, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

CRL.M.A.No. 1988/2014 (Delay)

       Issue notice.

Mr.Lovkesh Sawhney, APP for the State accepts notice.

State has no objection for condonation of delay.

For the reasons mentioned in the application for condonation of

delay in filing the appeal, the delay is condoned.

The application for condonation of delay is disposed of.

CRL.A. 149/2014

Admit.

Since the appellant has already undergone about two years and

eight months incarceration, with the consent of the parties, the appeal is

taken up for hearing on merits today itself.

S.P.Garg, J. (Open Court)

1. Md. Rinku Ali (the appellant) and Manoj were arrested by

the police of PS Delhi Cantt. in case FIR No. 109/09 under Sections

397/411/34 IPC and sent for trial on the allegations that on 04.05.2009 at

01.40 A.M. at Dhaula Kuan to Delhi Cantt. Road before Thimayya Red

Light, they in furtherance of common intention robbed Sumesh of a

Maruti Esteem Car No. DL-1RX-6064 using deadly weapon i.e. pistol. It

was further alleged that on 04.05.2009 Md. Rinku Ali was found in

possession of one pistol with two live cartridges of 0.32 bore without

licence. On 06.05.2009, both the accused persons were arrested by the

staff of AATS (South West) District, New Delhi, along with the robbed

taxi near Base Hospital, Brar Square Red Light at about 07.20 A.M. They

failed to explain possession of the taxi and on interrogation their

involvement in the incident surfaced. Statements of the witnesses

conversant with the facts were recorded. During the course of

investigation, the accused persons were charged and brought to trial. In

313 statements, the accused persons denied their complicity in the crime

and claimed innocence. They examined DW-1 (Mohd. Amin Ali) in

defence. After considering the rival contentions of the parties and

appreciating the evidence, the Trial Court, by the impugned judgment,

convicted both the accused persons for the aforesaid offences. By an order

dated 12.09.2011, Manoj was awarded RI for three years with fine `

5,000/-. However, the appellant was sentenced to undergo RI for seven

years with fine ` 25,000/-. Being aggrieved, the appellant - Md. Rinku

Ali has preferred the present appeal. It is unclear if Manoj has challenged

the conviction.

2. During the course of arguments, appellant's counsel on

instructions stated at Bar that Md.Rinku Ali has given up challenge to the

findings of the Trial Court on conviction and accepts it voluntarily. She,

however, prayed to modify the sentence order as the appellant has served

the substantial portion of the substantive sentence awarded to him by the

Trial Court and is not a previous convict. Learned Addl. Public Prosecutor

has no objection to have recourse to this procedure.

3. Since the appellant has opted not to challenge findings of the

Trial Court on conviction, his conviction stands affirmed. Nominal roll

dated 24.01.2014 demonstrates that he has already undergone two years,

seven months and seven days incarceration besides remission for nine

months and nine days as on 24.01.2014. His overall jail conduct is

satisfactory. Though he is shown to have been involved in three FIRs of

different period under different offences, there is nothing on record to

show that he was convicted in any criminal case instituted against him.

The Trial Court acquitted him of the charge under Section 397 IPC and

25/27 Arms Act. Co-convict - Manoj with similar role under Section 392

IPC was awarded RI for three years with fine ` 5,000/- only. The

appellant was given harsher sentence of RI for seven years with fine `

25,000/- simply because he was involved in a criminal case instituted

under Sections 379/411 IPC vide FIR No. 242/2010. The Trial Court was

of the opinion that due to his indulgence in criminal activities, the

appellant deserved harshest punishment. This approach of the Trial Court

to award disproportionate sentence to the appellant because of pendency

of one criminal case under Sections 379/411 IPC cannot be appreciated

particularly when no previous conviction was ever recorded against him.

Considering the facts and circumstances of the case, the antecedents of the

appellant, his age, the period already undergone by him in custody in this

case and the prison term awarded to co-convict - Manoj, the sentence

order is modified and the appellant shall undergo RI for three years with

fine ` 5,000/- under Section 392 IPC and in default of payment of fine,

shall further undergo SI for one month.

4. Appeal stands disposed of in the above terms. A copy of the

order be sent to Superintendent Jail for information. Trial Court record (if

any) be sent back immediately.

CRL.M.B. 281/2014

In view of the above, learned counsel for the appellant seeks

permission to withdraw the present bail application.

The application is dismissed as withdrawn being infructuous.

(S.P.GARG) JUDGE

FEBRUARY 05, 2014/ tr