Rajesh vs The State (Nct Of Delhi)
2014 Latest Caselaw 833 Del

*      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

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

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

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

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