Rohtash vs State
2014 Latest Caselaw 1578 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       DECIDED ON : March 24, 2014

+                                CRL.A.268/2011
       ROHTASH                                              ..... Appellant
                          Through : Ms.Saahila Lambha, Advocate.
                          VERSUS
       STATE                                                ..... Respondent
                          Through : Mr.M.N.Dudeja, APP for the State.

CORAM:
MR. JUSTICE S.P.GARG


S.P.GARG, J. (ORAL)

Crl.M.A.No.4841/2014

Counsel for the appellant does not press the application. The application is dismissed as not pressed.

CRL.A.268/2011

1. With the consent of the parties, the appeal is heard on merits

as the appellant has undergone five years' incarceration.

2. Deepak Kumar @ Deepu, Sanjay, Harish Kumar @ Pintu,

Rohtash and Deepak s/o Babu Lal were arrested by the police of Police

Station Shahdara in case FIR No.194/04 and sent for trial. Allegations as

projected in the charge-sheet against them were that on the night

intervening 09/10.06.04, the complainant-Krishan Dev Pathak was robbed

by them of his mobile phone make Sony Ericson, `5,200/-, office key and

one Delhi Govt.card at knife point when he was travelling in TSR at

Tikona Park, Kabool Nagar, Loni Road, Delhi at around 01.30 a.m.

During investigation, some recoveries were effected at their instance.

Statements of witnesses conversant with the facts were recorded. After

completion of investigation, a charge-sheet was submitted against all of

them in the court. They were duly charged and brought to trial. The

prosecution examined 14 witnesses to establish their guilt. In 313

statement, the accused persons denied their involvement in the crime.

They, however, opted not to lead any evidence in defence. The trial

resulted in their conviction (except accused Deepak s/o Babu Lal) under

Section 392 and 394 read with Section 34 IPC and accused Deepak @

Deepu s/o Bharat Singh was further convicted under Section 411 IPC by a

judgment dated 16.08.2010 of District Judge-VII/NE-cum-ASJ,

Karkardooma Courts, Delhi. Deepak s/o Babu Lal was convicted under

Section 411 IPC. By an order on sentence all the accused except Deepak

s/o Babu Lal, were awarded RI for ten years each with fine `3,000/- each

and Deepak Kumar @ Deepu s/o Bharat Singh was further sentenced to

undergo RI for three years with fine `2,000/- under Section 411 IPC and

his sentences were to operate concurrently. Deepak s/o Babu Lal was

awarded RI for two years with fine `2,000/- under Section 411 IPC.

Being aggrieved and dissatisfied, the appellant has preferred the present

appeal.

3. During the hearing of the appeal, the appellant's counsel on

instructions stated at Bar that the appellant-Rohtash has opted to give up

challenge to the findings recorded by the trial court on conviction. She,

however, prayed to take lenient view as the appellant has undergone the

substantive portion of substantive sentence awarded to him. To this,

learned APP for the State has no objection.

4. Since the appellant-Rohtash has opted not to challenge the

conviction in view of overwhelming ocular evidence coupled with

recovery, his conviction is affirmed. Nominal roll dated 07.03.2014

reveals that the period already undergone in custody by the appellant in

this case is four year, six months and sixteen days besides remission for

one year, four months and nineteen days. His overall jail conduct is

satisfactory. It is relevant to note that co-convict-Sanjay preferred

Crl.A.No.492/2013 which was decided on 04.02.2014 by HMJ V.K.Jain.

While maintaining the conviction under Section 392/394 read with

Section 354 IPC, the sentence order was modified and co-convict-Sanjay

was ordered to undergo RI for four years with fine `10,000/-. In the

instance case, the appellant has already undergone more than five years

incarceration. On parity also, the sentence order requires modification.

Considering these facts and circumstances, the period already undergone

by the appellant-Rohtash in this case is taken as his substantive sentence.

5. The appeal stands disposed of in the above terms. Copy of

this order be sent to the concerned Jail Superintendent for information and

necessary action. Trial court record be sent back along with a copy of this

order. The appellant-Rohtash be released forthwith if not required to be

detained in any other case.

(S.P.GARG) JUDGE MARCH 24, 2014 sa