Veeru vs State
2015 Latest Caselaw 7693 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Judgment: 07.10.2015
+      CRL.A. 919/2013
       VEERU
                                                               ..... Appellant
                             Through        Mr.Jivesh Tiwari, Advocate.

                             versus

       STATE
                                                             ..... Respondent
                             Through        Mr. Tarang Srivastava, APP for
                                            the State along with SI Chhattar
                                            Singh.

+      CRL.A. 1379/2013
       VINOD SHARMA @ LALLU
                                                              ..... Appellant
                             Through        Mr.Naveen Yadav, Advocate.

                             versus


       STATE GOVT. OF NCT OF DELHI
                                                             ..... Respondent
                             Through        Mr. Tarang Srivastava, APP for
                                            the State along with SI Chhattar
                                            Singh.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 These appeals are directed against the impugned judgment and

order on sentence dated 23.05.2013 and 04.06.2013 respectively

wherein appellant Veeru and Vinod Sharma @ Lallu have been

convicted under Sections 392/34 of the IPC and each of them has been

sentenced to undergo RI for a period of 4 years and to pay fine of

Rs.3,000/- and in default of payment of fine, to undergo SI 3 months.

2 Nominal rolls of both the appellants have been requisitioned.

Nominal roll of appellant Veeru reflects that as on date he has

undergone incarceration of 3 years and 2 months which includes the

remission earned by him. His jail conduct is satisfactory. Nominal roll

of co-convict Vinod Sharma @ Lallu reflects that as on date, he has

undergone incarceration of 2 years and almost 11 months including

remission. His jail conduct is also satisfactory.

3 At the outset, learned counsel for the appellants submits that the

conviction of the appellants is not being challenged on merits but

keeping in view the period of incarceration suffered by each of them and

they both being young in years and being the first time offenders and no

other criminal antecedents, they be released on the period already

undergone by them. This submission of the learned counsel for the

appellants is noted.

4 The version of the prosecution was based on the testimony of the

complainant Amrinder Kumar Yadav who had taken lift in a car in

which four boys aged 25-26 were sitting. The complainant was sitting

on the rear seat and when the car had reached Brittania Chowk, one boy

sitting on the back seat put a khurki on the neck of the complainant; the

other person had caught the complainant's neck. The complainant was

searched and his Motorola mobile phone was taken from his pocket as

also Rs.1,500/- in cash and a gold chain. It was on the basis of the

aforenoted complaint that the present FIR had been registered and

charge-sheet had thereafter been filed. Three of the accused persons

were arrested which included the present appellants. They had all been

arrested after the date of the incident. TIP had been ordered but none

had agreed to participate which had led to an adverse inference being

drawn against them.

5 Admittedly the two appellants were not the persons who had used

the knife; that is why their conviction was founded under Section 392/34

of the IPC. Before the Trial Court, an argument had been propounded by

the learned counsel for the appellants that they have been falsely roped

in and their identification for the first time in Court is not a good

identification considering the fact that the complainant was not known

to them and they having been arrested later on; they had refused TIP for

a valid reason and the finding returned by the Trial Judge that TIP

proceedings are a substantive piece of evidence is an incorrect

proposition as it is not a substantive piece of evidence and only a

corroborative piece of evidence.

6 Noting the aforenoted discrepancies as had been argued before the

Trial Judge and the finding of the Trial Judge that refusal to participate

in TIP is a substantive piece of evidence which is not a correct

proposition as refusal to participate in TIP and the subsequent drawing

of an adverse inference can only be treated as a corroborative piece of

evidence but noting the further submission of the learned counsel for the

appellants that the appeals are not challenged on merits and the period of

sentence already suffered by each of the appellants (who are both

admittedly in the age group of 25-26 years) and they having no other

criminal background, this is a fit case to hold that the period of

incarceration already suffered by each of the appellants be treated as the

sentence imposed upon them.

7 Accordingly, subject to payment of fine, both the appellants be

released forthwith, if not required in any other case.

8      Appeals disposed of in the above terms.



                                               INDERMEET KAUR, J
OCTOBER 07, 2015
A