Mukesh @ Mukka v. State (NCT of Delhi)

1. Mukesh @ Mukka impugns conviction in Sessions Case No.39/2008 arising out of FIR No.64/2008 registered at Police Station Bara Hindu Rao by which he was held guilty for committing offences punishable under Section 120-B/392/397 IPC and sentenced to undergo RI for seven years.

2. Briefly stated, the prosecution case as projected in the charge-sheet was that on 13.06.2008 at about 05.00 A.M. opposite shop No.T-736, Tyre Market, Azad Market, DCM Road in pursuance of criminal conspiracy, the appellant and his associates Karan Singh @ 2014:DHC:2361 Deva, Chandan @ Babar and Mohd. Wasim robbed ` 2,500/-, visiting cards and mobile phone no.9212421161 from the complainant - Manoj Kumar. They also robbed ` 3,500/-, railway tickets from Deepak Sharma (PW-1). They were armed with knives at the time of committing robbery and used deadly weapons to deprive the complainant - Manoj Kumar and Deepak of their valuable articles. During the course of investigation, statements of witnesses conversant with facts were recorded. The accused persons were arrested. The Investigating Officer moved applications for conducting Test Identification Parade. The accused declined to participate in the TIP. Robbed articles were recovered at the instance of the accused. After completion of investigation a charge-sheet was submitted against them in the Court. They were duly charged and brought to trial. The prosecution examined 26 witnesses. In their statement under Section 313 Cr.P.C. the accused pleaded false implication. On appreciating the evidence and considering the rival submissions of the parties, the Trial court, by the impugned judgment convicted the appellant- Mukesh @ Mukka and his associates Chandan @ Babar and Karan Singh @ Deva. Mohd. Wasim was acquitted of all the charges. Being aggrieved, the appellant has preferred the appeal.

3. It is pertinent to note that co-convicts Karan Singh @ Deva and Chandan @ Babar had preferred Crl.A.No.411/2011 and Crl.A.No.974/2011 which were disposed of vide judgments dated 07.03.2013 and 24.04.2014 respectively by this Court. Conviction of co-convicts under Sections 392/120-B IPC was sustained. Sentence order was modified and substantive sentence was reduced to five years. Other sentences were left undisturbed. Appellant’s counsel on instructions has stated that the appellant has opted not to challenge the findings of the trial court under Section 392 IPC. However, she prayed to take lenient view as the appellant has remained in custody for more than four years. Learned Additional Public Prosecutor has no objection to it.

4. Since the appellant has given up challenge to the findings of the Trial Court under Section 392 IPC and the co-convicts for the reasons mentioned therein have already been held guilty in similar circumstances under Section 392/34 IPC, the conviction of the appellant under Section 392 IPC is affirmed and for the same reasons, his conviction with the aid of Section 397 is set aside. Co-convicts were awarded RI for five years. The appellant’s case stands on similar footings. Nominal roll dated 16.09.2013 reveals that the appellant has already undergone incarceration for four years, three months and fourteen days besides earning remission for ten months and twenty six days. Apparently, the sentence served by him till date is more than five years.

5. In the light of the above discussion, conviction of the appellant under Section 392/120-B IPC is maintained. Order on sentence is modified and the substantive sentence awarded to the appellant to undergo RI for seven years under Section 392 read with Section 397 IPC is reduced to Rigorous Imprisonment for five years. Other sentences are left undisturbed.

6. The appeal stands disposed of in the above terms. A copy of the order be sent to the appellant through Superintendent, Tihar Jail.

7. Trial Court record be sent back forthwith.

JUDGE MAY 05, 2014 sa