Delhi High Court
Naresh @ Tinkoo vs The State (Govt. Of Nct), Delhi on 7 July, 2015
Author: Ashutoshkumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P.208/2015 & CRL.M.B.3247/2015
Reserved on: 02.07.2015
% Date of Decision:07.07.2015
NARESH @ TINKOO ..... Revisionist
Through: Mr. Imran Khan, Adv.
Versus
THE STATE (GOVT. OF NCT), DELHI ..... Respondent
Through: Ms. Isha Khanna, APP.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J:
1. The petitioner has impugned the judgment and order of conviction
and sentence dated 12.8.2013 and 19.8.2013 passed by the learned Trial
Court in connection with FIR No.9/2013 (P.S.J.P.Kalan) whereby he has
been convicted under Section 392 of the Indian Penal Code and has been
sentenced to undergo R.I for three years.
2. He further assails the Appellate Court's judgment dated 7.11.2014
passed in Crl.Appeal No.8/2004 by the learned Special Judge, P.C.Act,
CBI-Dwarka Courts, New Delhi whereby the trial Court judgment has
been upheld and affirmed.
3. Avdesh, PW.2 was stopped by the petitioner while he was passing
through the liquor vend on his motorcycle on 26.1.2013. The petitioner
wanted a lift which was permitted by Avdesh (PW.2). After going to
some distance, on the point of knife, PW.2 was made to stop the
motorcycle. Petitioner is said to have demanded money from PW.2. The
motorcycle of PW.2 bearing registration No.DL4S BH 5682 was taken
away by the petitioner.
4. The petitioner was apprehended by the police on 28.1.2013 while
he was driving the same motorcycle which he had snatched from PW.2.
Because no valid paper was furnished regarding the possession of the
motorcycle, he was arrested and the motorcycle was seized.
5. A case under Section 392/411 was registered against him, which
on investigation, was found to be true. The petitioner was put on trial.
6. During trial, Avdesh (PW.2) supported the prosecution version and
identified the petitioner as the person who had taken lift from him and
had, later, robbed him of his motorcycle.
7. SI Satish Kumar (PW.6) is a witness to the recovery of stolen
motorcycle. He deposed before the Court that the petitioner was
apprehended by him with the stolen motorcycle while he was on duty for
checking the vehicle at Dhandsa Border picket.
8. The petitioner in his statement under Section 313 of the Code of
Criminal Procedure denied the allegation and submitted that the recovery
of the motorcycle from him is a paper work and a sham.
9. The Trial Court, believing the testimonies of the witnesses,
convicted the appellant under Section 392 of the IPC and after taking all
the extenuating circumstances, sentenced him to undergo RI for three
years by judgment and order of conviction and sentence referred to
above.
10. The petitioner appealed against the aforesaid judgment, seeking its
annulment on grounds viz. that the knife used by the petitioner was not
seized and that the motorcycle was not identified by PW.2 in the Court.
The other grounds which were canvassed at the trial stage were about
serious lapses on the part of the prosecution and divergence in the
deposition of witnesses inter-se.
11. The Appellate Court did not accede to such grounds for interfering
with the Trial Court's judgment and order. Consequently, the Trial
Court's judgment and order has been upheld and affirmed.
12. On perusal of both the judgments, this Court is of the opinion that
no illegality or irregularity was committed while appreciating the
evidence against the petitioner. Cogent and legally tenable grounds have
been given by the Trial Court and the Appellate Court in convicting and
upholding the conviction of the petitioner under Section 392 of the IPC.
13. It is well settled that mere non recovery of a weapon used in the
crime would not justify the throwing of the case over board. Similarly,
minor contradictions which do not affect the nature/substratum of the
prosecution version, cannot upset the findings of the Trial Court. The
counsel for the petitioner submitted that he has remained in jail for
approximately 2½ years.
14. This Court is of the opinion that the sentence imposed on the
petitioner requires to be modified, in the interest of justice. The sentence
of the petitioner is modified to the extent of the period undergone by him
without disturbing the concurrent findings of guilt. The concurrent
judgments of the Court below are upheld and affirmed.
15. The petitioner be released from jail, if not wanted in any other
case.
16. Criminal Revision Petition is disposed of accordingly.
17. No order need be passed in Crl.M.B No.3247/2015 as it is rendered
infructuous in view of the modification of the sentence.
18. A copy of this order be sent to the Jail Superintendent, Tihar for
information and compliance.
ASHUTOSH KUMAR, J
July 07, 2015
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