Jitender @ Jeetu v. State (Nct of Delhi )

A.K. PATHAK, J. JANUARY 15, 2015 rb

* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 79/2011 and Crl. M. (Bail) No. 511/2014 Reserved on 13th January, 2015 Delivered on 15th January, 2015 JITENDER @ JEETU ..... Appellant Through : Mr. S.H. Ansari, Adv. Versus STATE (NCT OF DELHI ) .... Respondent Through :Mr. Yogesh Verma, APP with SI Amit Rathee, P.S. Model Town AND + CRL.A. 233/2011 ZAAKIR ..... Appellant Through : Mr. Umardeen, Adv. Versus STATE NCT OF DELHI ..... Respondent Through Mr. Yogesh Verma, APP with SI Amit Rathee, P.S. Model Town CORAM: HON'BLE MR. JUSTICE A.K. PATHAK 1. Both the appeals arise from the same incident, FIR and judgment, thus, are being disposed of together. 2. Appellants have been convicted under Section 392 read with Section 34 of the Indian Penal Code, 1860 (IPC) and sentenced to undergo rigorous imprisonment of two years with fine of `2,000/- each and in default of payment of fine to undergo rigorous imprisonment of three months by the trial court vide judgment dated 15th December, 2010 and order on sentence dated 20th December, 2010. Appellant Jitender has also been convicted under Section 397 IPC and sentenced to undergo rigorous imprisonment of seven years with fine of `2,000/- and in default of payment of fine to undergo rigorous imprisonment of three months. Benefit of Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.) has also been extended to the appellants. 3. Aggrieved by this conviction as also the sentences awarded to them appellants have preferred above appeals. Prosecution story, as unfolded, is that complainant Shri Dheeraj Chand was going from Model Town to his house on 22nd April, 2010 after completing his duty and when he reached near Azadpur Metro Station at about 10 pm, appellants, namely, Jitender and Zaakir caught hold of him. Jitender took out a knife from his pocket and showed it to complainant, while Zaakir took out the purse from the pocket of complainant. Purse contained `20/-, passport size photograph of complainant and some visiting cards. After removing purse from the pocket of complainant, Jitender and Zaakir started running towards Azadpur. Complainant chased them and also raised alarm "pakdo pakdo". Constable Sachin who was coming from the opposite direction, apprehended Zaakir. In the meanwhile, one or two passersby also arrived there. Zaakir was searched and purse of complainant was recovered from him. Someone informed the police at no.100, pursuant whereof DD no. 27A was recorded at police station Kingsway Camp/Model Town and handed over to ASI Jaivir Singh, who along with Constable Mahrajuddin reached the spot and recorded statement of complainant Shri Dheeraj Chand Ex. PW3/A. ASI Jaivir Singh wrote rukka Ex. PW5/A, pursuant whereof FIR No.154/2010 Ex. (PW1/A) was registered in the Police Station Kingsway Camp/Model Town, New Delhi. ASI Jaivir Singh prepared site plan Ex. PW5/B and also arrested Zaakir vide personal search memo Ex. PW3/D and arrest memo Ex. PW3/C. Purse, `20/-, photograph and visiting cards were taken in possession vide seizure memo Ex. PW3/B. Disclosure statement Ex. PW4/A of Zaakir was recorded, wherein he disclosed the name of his accomplice as Jitender @ Jeetu. 4. On 25th April, 2010 Zaakir led the police party to the house of Jitender, bearing no. 487, Village Azadpur, Delhi. Jitender was arrested vide personal search memo Ex. PW5/D and arrest memo Ex. PW5/C. Knife could not be recovered as Jitender stated that he had thrown the same in a naala. On 29th April, 2010 Test Identification Parade (TIP) of Jitender was fixed but he refused to participate in the TIP. He made a statement in this regard before Shri G.K. Nirman, Metropolitan Magistrate. 5. After completion of investigation, charge-sheet was filed in the court of Metropolitan Magistrate, Delhi, who after making compliances under Section 207 Cr.P.C., committed the case to Sessions Court since offence under Section 397 IPC was triable by the Sessions Court. 6. Charges under Sections 392/34 IPC were framed a