Tony @ Topesh v. State (Govt. of NCT) of Delhi

1. The appellant – Tony @ Topesh impugns a judgment dated 12.04.2010 of learned Additional Sessions Judge in Sessions Case NO. 367/07 arising out of FIR No. 257/07 PS Adarsh Nagar by which he was convicted under Section 394/34 IPC read with Section 397 IPC. By an order dated 13.04.2010, he was sentenced to undergo RI for seven years with fine ` 5,000/-. 2014:DHC:2198

2. Allegations reflected in the charge-sheet against the appellant were that on 11.05.2007 at about 10.20 P.M. at Azadpur Flyover, near TPT Center Azadpur, Delhi, he and his associates robbed complainant – Sanjay Arora, of a purse containing ` 2,000/- and a mobile phone make Nokia. The assailants were armed with knives and inflicted injuries to him while committing robbery. Daily Diary (DD) No. 19 (Ex.PW-6/A) was recorded at Police Post NS Mandi at 11.30 P.M. regarding the incident. The investigation was assigned to ASI Attar Singh who with Const. Satyawan reached at Babu Jagjiwan Ram Memorial Hospital and collected Sanjay Arora’s MLC. The First Information Report was lodged after recording complainant’s statement (Ex.PW-6/A). In the statement, complainant gave detailed account as to how and under what circumstances, he was robbed of his valuable articles by 3 – 4 individuals who inflicted injuries to him by a knife. He claimed to identify the assailants. During the course of investigation, statements of the witnesses conversant with the facts were recorded. The appellant was identified by the victim in TIP proceedings. After completion of investigation, a charge-sheet was filed. The appellant was duly charged and brought to trial. The prosecution examined twelve witnesses. In their 313 statement, the appellant denied his complicity in the crime and pleaded false implication. The trial resulted in his conviction as aforesaid.

3. During the course of hearing, appellant’s counsel on instructions stated that the appellant has opted not to challenge the findings of the Trial Court on conviction. She, however, prayed to modify the sentence order and to reduce the default sentence for non-payment of fine.

4. Since the appellant has given up challenge to the findings of the Trial Court on conviction under Section 394/34 IPC read with Section 397 IPC in the presence of overwhelming evidence of the complainant, coupled with medical evidence, conviction stands affirmed. The appellant was sentenced to undergo RI for seven years with fine ` 5,000/-. Nominal roll dated 23.04.2014 reveals that he has already served the substantive sentence awarded to him as on 19.03.2014. He is now serving default sentence of three months for non-payment of fine ` 5,000/-. It further reveals that his overall jail conduct is satisfactory. He is not a previous convict. Due to his poor economic condition, he is unable to pay fine ` 5,000/- and has already served the default sentence for more than one month as on 22.04.2014. Considering the facts and circumstances, the period already undergone by him in custody is taken as the default sentence for non-payment of fine ` 5,000/-. Sentence order is accordingly modified.

5. Appeal stands disposed of in the above terms. Trial Court record be sent back forthwith with the copy of the order. A copy of the order be sent to the Superintendent Jail for information. The appellant shall be released forthwith if not required to be detained in any other case.

JUDGE APRIL 28, 2014 / tr