Md. Rinku Ali v. The State (Govt. of NCT), Delhi

1. Md. Rinku Ali (the appellant) and Manoj were arrested by the police of PS Delhi Cantt. in case FIR No. 109/09 under Sections 397/411/34 IPC and sent for trial on the allegations that on 04.05.2009 at

01.40 A.M. at Dhaula Kuan to Delhi Cantt. Road before Thimayya Red Light, they in furtherance of common intention robbed Sumesh of a Maruti Esteem Car No. DL-1RX-6064 using deadly weapon i.e. pistol. It was further alleged that on 04.05.2009 Md. Rinku Ali was found in possession of one pistol with two live cartridges of 0.32 bore without licence. On 06.05.2009, both the accused persons were arrested by the staff of AATS (South West) District, New Delhi, along with the robbed taxi near Base Hospital, Brar Square Red Light at about 07.20 A.M. They failed to explain possession of the taxi and on interrogation their involvement in the incident surfaced. Statements of the witnesses conversant with the facts were recorded. During the course of investigation, the accused persons were charged and brought to trial. In 313 statements, the accused persons denied their complicity in the crime and claimed innocence. They examined DW-1 (Mohd. Amin Ali) in defence. After considering the rival contentions of the parties and appreciating the evidence, the Trial Court, by the impugned judgment, convicted both the accused persons for the aforesaid offences. By an order dated 12.09.2011, Manoj was awarded RI for three years with fine ` 5,000/-. However, the appellant was sentenced to undergo RI for seven years with fine ` 25,000/-. Being aggrieved, the appellant – Md. Rinku Ali has preferred the present appeal. It is unclear if Manoj has challenged the conviction.

2. During the course of arguments, appellant’s counsel on instructions stated at Bar that Md.Rinku Ali has given up challenge to the findings of the Trial Court on conviction and accepts it voluntarily. She, however, prayed to modify the sentence order as the appellant has served the substantial portion of the substantive sentence awarded to him by the Trial Court and is not a previous convict. Learned Addl. Public Prosecutor has no objection to have recourse to this procedure.

3. Since the appellant has opted not to challenge findings of the Trial Court on conviction, his conviction stands affirmed. Nominal roll dated 24.01.2014 demonstrates that he has already undergone two years, seven months and seven days incarceration besides remission for nine months and nine days as on 24.01.2014. His overall jail conduct is satisfactory. Though he is shown to have been involved in three FIRs of different period under different offences, there is nothing on record to show that he was convicted in any criminal case instituted against him. The Trial Court acquitted him of the charge under Section 397 IPC and 25/27 Arms Act. Co-convict – Manoj with similar role under Section 392 IPC was awarded RI for three years with fine ` 5,000/- only. The appellant was given harsher sentence of RI for seven years with fine ` 25,000/- simply because he was involved in a criminal case instituted under Sections 379/411 IPC vide FIR No. 242/2010. The Trial Court was of the opinion that due to his indulgence in criminal activities, the appellant deserved harshest punishment. This approach of the Trial Court to award disproportionate sentence to the appellant because of pendency of one criminal case under Sections 379/411 IPC cannot be appreciated particularly when no previous conviction was ever recorded against him. Considering the facts and circumstances of the case, the antecedents of the appellant, his age, the period already undergone by him in custody in this case and the prison term awarded to co-convict - Manoj, the sentence order is modified and the appellant shall undergo RI for three years with fine ` 5,000/- under Section 392 IPC and in default of payment of fine, shall further undergo SI for one month.

4. Appeal stands disposed of in the above terms. A copy of the order be sent to Superintendent Jail for information. Trial Court record (if any) be sent back immediately. CRL.M.B. 281/2014 In view of the above, learned counsel for the appellant seeks permission to withdraw the present bail application. The application is dismissed as withdrawn being infructuous.

JUDGE FEBRUARY 05, 2014/ tr